IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.179/1998 Reserved on: 6.11.2008 Decided on:17.11. 2008 Balak Ram. …Appellant. Versus Kauli Devi and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.yes. For the Appellant : Mr. Tarlok Chauhan, Advocate. For the Respondents : Mr. Vinod Gupta, Advocate. Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 20.12.1997 passed by the learned Additional District Judge, Mandi in Civil Appeal No. 70 of 1991. Brief facts necessary for the adjudication of this Regular Second Appeal are that the appellant-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit for declaration and consequential relief of injunction against the respondents-defendants (hereinafter referred to as ‘the defendants’ for convenience sake). In brief, it was pleaded by the plaintiff that the land comprising Khata Khatauni No. 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 19min/44min, Khasra Nos. 919, 920, 947, 961, 979, 988, 998, 1002, 1084 kita 9, measuring 8-5-0 bighas situated in Mauza Arthi, Tehsil Sundernagar, District Mandi had been coming in his possession, which is open, hostile, exclusive, continuous and to the knowledge of the defendants for the last more than 12 years. Thus the plaintiff had perfected his title over the suit land by way of adverse possession and the defendants, who had lost their right, title and interest over the suit land were trying to forcibly enter into the suit land and were causing unlawful interference in the enjoyment and peaceful possession of the plaintiff since 9.10.1987. The defendants had filed their written statement and had taken preliminary objections as to the maintainability, valuation of the suit land for the purpose of court fee and jurisdiction and locus standi etc. However, the suit was also contested on merits and it was denied that the suit land was in exclusive and continuous possession of the plaintiff. It was pleaded that the defendants were in physical and actual possession of the suit land, therefore, the plaintiff had no right, title and interest in the suit land whatsoever and he was not in adverse possession. The trial court on the basis of the evidence led by the parties, decreed the suit on 26.6.1991. The defendants preferred an appeal before the learned Additional District Judge, Mandi. The learned Additional District Judge, Mandi accepted the appeal on 20.12.1997. This Regular Second Appeal has been preferred by the plaintiff against the judgment and decree dated 20.12.1997 passed by the learned Additional District Judge, Mandi. The Regular Second Appeal was admitted on the following substantial questions of law: 1. Whether from the evidence advanced on record, the possession of the appellant has been proved to be adverse? 2. Whether the ld. lower appellate court has misread and misinterpreted the oral as well as documentary evidence? 3 3. Whether the ld. lower Appellate Court has given valid reasons to set aside the judgment and decree of the ld. trial court? Mr. Tarlok Chauhan has strenuously argued that the judgment and decree dated 20.12.1997 passed by the learned first appellate court is not sustainable in the eyes of law. He also contended that the learned first appellate court has erred in law by taking into consideration the evidence led by the parties beyond the pleadings. He further contended that the plaintiff has conclusively proved the adverse possession on the basis of the documentary as well as oral evidence on the suit land. He lastly contended that the learned first appellate court has not taken into consideration the well settled principles governing the field of ‘adverse possession’ while accepting the appeal of the defendants. Mr. Vinod Gupta has supported the judgment and decree dated 20.12.1997 passed by the learned Additional District Judge, Mandi. He also contended that the plaintiff has failed to prove the ingredients of adverse possession i.e. open, hostile and continuity. I have heard the learned counsel for the parties and perused the record carefully. Since all the substantial questions of law are interconnected and interlinked, the same are being taken up together for determination to avoid repetition of discussion of evidence. The plaintiff has appeared as PW-1. He has testified that he is coming in possession of the suit land since 1960. He then deposed that he forcibly cultivated the suit land and this fact was in the knowledge of the defendants since 1960. The same was never objected to by the defendants. PW-2 Lekh Ram has deposed that he has seen the possession of the plaintiff over the suit land in the year 1971 and he had cultivated the suit land at the instance of the plaintiff. PW-3 Parma has 4 deposed that in the year 1975, he cultivated the suit land at the instance of the plaintiff. He further deposed that for the last 30 years, the suit land had been coming in possession of the plaintiff. DW-1 Bardi has deposed that the land is in possession of the defendants. DW-2 Devi Ram has also supported the version of DW-1. Now the Court will advert to the documentary evidence led by the parties. The plaintiff has strongly relied upon the copy of Missal Haquiat Bandobasti Jadid Ex. PC whereby the possession of the plaintiff has been recorded. In jamabandi Ex. PD for the year 1964-65, the possession of the plaintiff has been recorded. In the jamabandi Ex. PF for the year 1980-81, again the possession of the plaintiff has been recorded. In Ex. PH, copy of khasra girdawari for the period 29.4.1982 to 27.4.1983, the possession of the plaintiff has been recorded. The defendants had not moved any application for the correction of these revenue entries with regard to column of possession. PW-1 Balak Ram has stated that he had forcibly taken over the possession of the land and this fact was within the knowledge of everybody but nobody had objected to it. He also stated that he has become owner of the suit land. PW-2 has deposed that the land is in possession of the plaintiff for the last 30 years. He has deposed that at times, the suit land is ploughed by the plaintiff and at times by the defendants. PW-3 has deposed about the possession of the land with the plaintiff. He had been ploughing this land as noticed above at the instance of the plaintiff. DW-1 has admitted in his cross-examination that on the suit land the plaintiff had grown wheat. He has also admitted that the plaintiff’s father had not given any land to him. He has also admitted that the entries were made during the settlement operations with regard to the possession on the basis of the existing status of the party. He has further admitted that the plaintiff treats himself to be the owner of the land. DW-2 5 has deposed that the defendants were in possession of the land. In his cross-examination, he has admitted that he did not know about the exact khasra numbers of the land. He has further admitted that the plaintiff had taken over the possession 3-4 years back. He has admitted about the settlement which took place about 27-28 years back. He also admitted that the plaintiff has grown wheat on the suit land. It is clear from the revenue record that since 1960-61 onwards, the plaintiff is shown in the column of possession. The defendants had not taken any steps to get these entries corrected. The parties have admitted that the settlement operations had taken place in the area and the possessions of the parties were recorded as per the existing status. Defendant No.3 while appearing as DW-2 has admitted that the plaintiff treats himself owner of the land. DW-1 has also admitted that the plaintiff treats himself to be the owner of the suit land and he has grown wheat on the same. The plaintiff has led tangible evidence that he was treating himself to be the owner of the land since 1964-65 onwards. The learned first appellate court has come to a wrong conclusion that his possession on the land was permissive in nature. DW-1 and DW-2 have categorically admitted that the plaintiff treats himself owner of the suit land. The learned first appellate court could not discard the statements of DW-1 and DW-2 whereby they have categorically stated that the plaintiff considers himself to be the owner of the suit land. The first appellate court has considered the evidence led by the defendants beyond their pleadings. The factum of separation was never pleaded by the defendants in their written statement, however, the learned first appellate court has assumed that in house separatation took place in the year 1960-1965 onwards. How he has recorded this finding is not borne out from the record and how 6 he has come to a conclusion that the regular partition has taken place in the year 1985-86 is also not borne out from the record of the case. In view of the oral as well as documentary evidence as discussed hereinabove, the plaintiff has proved his adverse possession over the suit land with effect from 1964-65 onwards. The learned first appellate court has also not taken into consideration the well settled principles governing the field of adverse possession. Their Lordships of the Hon’ble Supreme Court in Karnataka Board of Wakf versus Government of India and others, (2004) 10 SCC 779 have held that a person, who claims adverse possession has to show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. Their Lordships have held as under: “In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well- settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See : S M Karim v. Bibi Sakinal AIR 1964 SC 1254, Parsinni v. Sukhi (1993) 4 SCC 375 and D N Venkatarayappa v. State of Karnataka (1997) 7 SCC 567). Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of 7 adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Dr. Mahesh Chand Sharma v. Raj Kumari Sharma (1996) 8 SCC 128).” Their Lordships of the Hon’ble Supreme Court in T.Anjanappa and others versus Somalingappa and another, (2006) 7 SCC 570 have held that for deciding whether the alleged acts of a person constitute adverse possession, the animus of the person doing those acts is the most crucial factor. Their Lordships have further held that adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person’s title. Their Lordships have held as under: “Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to he adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful Owner's title e.g. trustees, guardians, bailiffs or agents. Such persons cannot set up adverse possession. "Adverse possession" means a hostile possession which is expressly or impliedly in denial of title of the true owner. Under Article 65 of the Limitation Act, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a 8 person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. (See Annasaheb v. B.B. Patil (AIR 1995 SC 895 at 902). Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all. An occupation of reality is inconsistent with the right of the true owner. Where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner (that is, with the intention of excluding all persons from it, including the rightful owner), he is in adverse possession of it. Thus, if A is in possession of a field of B's, he is in adverse possession of it unless there is something to show that his possession is consistent with a recognition of B's title. (See Ward v. Carttar (1866) LR 1 Eq.29). Adverse possession is of two kinds, according as it was adverse from the beginning, or has become so subsequently. Thus, if a mere trespasser takes possession of A's property, and retains it against him, his possession is adverse ab initio. But if A grants a lease of land to B, or B obtains possession of the land as A's bailiff, or guardian, or trustee, his possession can only become adverse by some change in his position. Adverse possession not only entitled the adverse possessor, like every other possessor, to be protected in his possession against all who cannot show a better title, but also, if the adverse possessor remains in possession for a certain 9 period of time produces the effect either of barring the right of the true owner, and thus converting the possessor into the owner, or of depriving the true owner of his right of action to recover his property and this although the true owner is ignorant of the adverse possessor being in occupation. (See Rains v. Buxion (1880 (14) Ch D 537). Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of any person to whom the land rightfully belongs and tends to extinguish that person's title, which provides that no person shall make an entry or distress, or bring an action to recover any land or rent, but within twelve years next after the time when the right first accrued, and does away with the doctrine of adverse possession, except in the cases provided for by Section 15. Possession is not held to be adverse if it can be referred to a lawful title. According to Pollock, "In common speech a man is said to be in possession of anything of which he has the apparent control or from the use of which he has the apparent powers of excluding others". It is the basic principle of law of adverse possession that (a) it is the temporary and abnormal separation of the property from the title of it when a man holds property innocently against all the world but wrongfully against the true owner; (b) it is possession inconsistent with the title of the true owner. In Halsbury's 1953 Edition, Volume-I it has been stated as follows: "At the determination of the statutory period limited to any person for making an entry or bringing an action, the right or title of such person to the land, rent or advowson, for the recovery of which such entry or action might have been made or brought within such period is extinguished and such title cannot afterwards be reviewed either by re-entry or by subsequent acknowledgement. The operation of the statute is merely negative, it extinguished the right and title of the dispossessed owner and leaves the occupant with a title gained by the fact of possession and resting on the infirmity of the right of the others to eject him" 10 It is well recognized proposition in law that mere possession however long does not necessarily means that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action.” Their Lordships of the Hon’ble Supreme Court in Govindammal versus R. Perumal Chettiar and others, (2006) 11 SCC 600 have held that no hard and fast rule can be laid down from which it can be inferred that any co-sharer has ousted his co-sharer since it will depend upon facts of each case. Their Lordships have further held that in order to succeed on the ground of ouster, the person setting up ouster is bound to show that he did set up an adverse or independent title during the period which was beyond the statutory period of 12 years. Their Lordships have held as under: “In the case of Mohaideen Abdul Kadir & Ors. V. Mohammad Mahaideen Umma & Ors. reported in ILR [1970] 2 Mad. 636 their Lordships held that no hard and fast rule can be laid down. But the following relevant factors may be taken into consideration : (i) exclusive possession and perception of profits for well over the period prescribed by the law of limitation ; (ii) dealings by the party in possession treating the properties as exclusively belonging to him; (iii) the means of the excluded co-sharer of knowing that his title has been denied by the co-owner in possession. There may be cases, where, owing to long lapse of time, it may not be possible for the co-owner in possession to adduce evidence as to when the ouster commenced and how it was brought home to the 11 knowledge of the excluded co-owner. In such a case the law will presume ouster as an explanation of the long peaceful possession of the co-owner in possession. In order to maintain the person in such possession the law presumes a lawful origin of the possession. Therefore, no hard and fast rule can be laid down from which it can be inferred that any co-sharer has ousted his co-sharer. That will depend upon facts of each case. Simply long possession is not a factor to oust a co-sharer but something more positive is required to be done. There must be a hostile open possession denial and repudiation of the rights of other co-owners and this denial or repudiation must brought home to the co-owners. Simply because a co-sharer gave notice claiming partition of the suit properties and possession and did not pursue the matter further, that will not be sufficient to show that the co-sharer has lost his/her right. In the present case, it is only when 'B' schedule property was being sold by two brothers then alone the plaintiff woke up to realise that the step sons were not interested to give her share in the property and she rushed to file the suit. Therefore, by no stretch of imagination it can be inferred in the present case that the plaintiff had lost her right to claim partition and share in the property. In the case of Vidya Devi alias Vidya vati (dead) by LRs v. Prem Prakash & Ors. reported in (1995) 4 SCC 496 the question was whether the plea of acquisition of title by adverse possession was available to the co-bhumidhar or not. In that context, their Lordships held that when no period of limitation is fixed for filing a suit for partition by a co- bhumidhar against his other co-bhumidhars in respect of a joint holding, the question of the other co-bhumidhar acquiring his title to such holding by adverse possession for over 12 years can never arise. It was further observed that if that be so, such plea of perfection of title by adverse possession of a holding by a co-bhumidhar against his other co-bhumidhar as defence in the latter's suit for partition can be of no legal consequence. In the case of Mohammad Baqar & Ors. V. Naim-un- Nisa Bibi & Ors. reported in AIR 1956 SC 548 it was observed that under the law possession of one co-sharer is possession of all co-sharers, it cannot be adverse to them, unless there is a denial of their right to their knowledge by the person in 12 possession and exclusion and ouster following thereon for the statutory period. There can be no question of ouster, if there is participation in the profits to any degree. In the case of Md. Mohammad Ali (dead) by LRs v. Jagadish Kalita & Ors. reported in (2004) 1 SCC 271 this Court examined a series of decisions on the question of adverse possession and after extracting the legal propositions from various decisions, their Lordships concluded that long and continuous possession by itself, it is trite, would not constitute adverse possession. Even non-participation in the rent and profits of the land to a co-sharer does not amount to ouster so as to give title by prescription. A co-sharer, as is well settled, becomes a constructive trustee of other co- sharer and the right of a person or his predecessors-in- interest is deemed to have been protected by the trustees. As against this, our attention was also invited to a decision in the case of T.P.R.Palania Pillai & Ors. V. Amjath Ibrahim Rowther & Anr. reported in AIR 1942 Madras 622, their Lordships observed that