IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Regular Second Appeal No. 47 of 1997. Judgment reserved on : 8.1.2008. Date of Decision: 11th January, 2008. Dinu Ram ….. Appellant. Versus Smt. Khuri Devi and others …..Respondents. Coram The Hon’ble Mr. Justice Dev Darshan Sud,Judge. Whether approved for reporting?1 For the Petitioner: Mr. K.D. Sood, Advocate. For the Respondents: Mr. Bhupinder Gupta, Sr. Advocate, with Mr. Janesh Gupta, Advocate. Dev Darshan Sud, Judge. This is the plaintiff’s appeal against the judgment and decree of the learned District Judge, Kullu, affirming the judgment and decree of the learned trial court dismissing the suit filed by the plaintiff for permanent prohibitory injunction against the defendants. The plaintiff instituted a suit for permanent prohibitory injunction against Khuri Devi, Jugi Devi and Nathi. During the pendency of the suit, Smt. Jugi Devi died and her legal representatives were brought on the record. 1 Whether the reporters of Local Papers may be allowed to see the judgment? - 2 - The case set out by the plaintiff was that land measuring one bigha comprised in khasra No. 3669 of khata No. 732 min khatauni No. 1396 situated in Phati Hallan, Kothi Naggar, Tehsil and District Kullu is owned and possessed by the plaintiff but in the column of cultivation, the name of Tikmu, father of the defendants was recorded as being a tenant at will. He died in 1971 without any male issue. His wife had predeceased him and that defendants are their legal heirs. The plaintiff alleges that on the death of Tikmu, he came into possession of the land. Further allegation is that during the life time of Tikmu, the plaintiff had consented to the possession of a house to him standing on the land and after his death they are residing therein. The suit was resisted by the defendants on a number of grounds. It was alleged that the plaintiff is out of possession and the revenue entries are incorrect. Defendants are owners in possession of the land. It was admitted that Tikmu was a tenant in possession of the land but he was old and sick and unable to cultivate the land and as such the defendants had been cultivating this land. It was pleaded that they raised an apple orchard on the land which was never objected to by the plaintiff and after the death of the tenant (Tikmu), their possession became adverse to the plaintiff as they remained in possession openly as of right and to the knowledge of the plaintiff without protest. These averments were denied in the replication by the plaintiff. - 3 - The learned trial court, on a consideration of the evidence decided issue No. 1 dealing with the ownership and possession of the plaintiff against the present appellant. The tenancy of Tikmu Ram deceased predecessor-in-interest of the defendant was not denied by DW-1 Bholu Ram, who further stated that a house was built/constructed and an orchard was planted by them on the suit land without any let or hindrance from the plaintiff. On this evidence, the learned trial court held that the defendants have become owners by way of adverse possession and that the suit was barred by limitation. In appeal which was filed by the plaintiff, the learned appellate court, also affirmed the findings of the learned trial court. The appeal was admitted on two questions of law namely:- “1. Whether the courts below have misconstrued the pleadings of the parties and have made out wholly new case for the defendant/respondents in holding that the defendants had become owners by adverse possession in the absence of plea of adverse possession and also an issue or evidence on that behalf? 2. Whether the courts were justified in holding that the suit of the plaintiff was barred by limitation?” I have heard learned counsel for the parties and have gone through the record of the case. In appeal under Section 100 of the Code of Civil Procedure, it would not be open to this court to reappreciate evidence unless the conclusions arrived at by the courts - 4 - below are perverse or are based on no evidence at all. However, it needs to be noticed that the assertions of both the parties to this appeal are based on simple oral statement without there being any corroborative evidence on the record. PW-1 Dinu Ram has stated that Tikmu Ram was a tenant who died in the year 1971. He further says that his wife predeceased Tikmu. He states that he is the owner of the house and in possession of the land. The house on the land was given by him to the defendants. PW-2 is Anant Ram who says that he knows the parties and that the house on the suit land was given by the plaintiff to the defendants. DW-1, Bholu, states that he constructed the house on the land more than 30 years back to the knowledge of the plaintiff who did not object to his raising such construction and that he planted apple orchard on the land in dispute. He was ‘gharjawain’ of Tikmu. DW-2 Dile Ram is the brother of the defendant DW-1 and has, in fact endorsed whatever he (DW-1) stated. This is the only evidence on record besides the revenue record. These statements are being considered as the assertion of both the parties as to who built the house and who planted an orchard cannot be accepted as they have not been corroborated. The approach of the trial court that the statement made by the plaintiff that he had taken possession of the land cannot be relied upon in the absence of any corroborative evidence, but believing that of the defendants cannot be accepted as being based on sound legal principles. The same yardstick should have been - 5 - applied for assessing the veracity of the statement of both the parties as there is nothing to indicate that the plaintiff or his witnesses are to be disbelieved. Surely some corroboration as to whether the parties actually planted the orchard and which of the parties did so and which of the parties built the house was important. Ext. P-C is the Jamabandi for the year 1964-65 showing that the land has been inherited by the plaintiff. Ext. D-1 and Ext. D-2 are jamabandies produced by the defendants showing that the plaintiff is the owner and that Tikmu Ram is the occupier as ‘tabe marji’ clearly showing his possession to be permissive and the derivative possession and occupation of the land by the respondents is also permissive. Learned counsel for the appellant submits that even if the evidence of the plaintiff regarding possession is not to be accepted, his ownership stands established and that Tikmu Ram being the tenant, his possession could never be hostile. He submits that both the courts are in error in holding that the defendants had perfected their title by way of adverse possession. The submission made by the learned counsel for the respondent is that the possession may be legal but it cannot be hostile. He submits that three necessary ingredients to establish adverse possession namely, nec vi, nec clam, nec precario i.e. peaceful, open and continuous have not been pleaded and proved by the defendants. It is by now well settled that to establish adverse possession, the party claiming title on the basis of adverse possession must be pleaded and prove these ingredients. - 6 - The necessary ingredients as laid down by the Hon’ble Supreme Court in Vidya Devi alias Vidya Vati (Dead) by LRs. vs. Prem Prakash and others (1995) 4 SCC 496 are:- “22. Adverse possession" means hostile possession, that is, a possession which is expressly in denial of the title of the true owner. ( See: Gaya Parshad Dikshit v. (Dr) Nirmal Chander2). The denial of title of the true owner is a sign of adverse possession. In Ezaz Ali v. Special Manager, Court of Wards, 3, it was observed : "The principle of law is firmly established that a person, who bases his title on adverse possession, must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed. " 23. Dr. Markby in his treatise "elements of Law" (Second Edition) has observed that possession" to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. (See also: Munnalal v. Kashibai4). 24. It is a matter of fundamental principle of law that where possession can be referred to a lawful title, it will not be considered to be adverse. It is on the basis of this principle that it has been laid down that since the possession of one co-owner can be referred to his status as co-owner, it cannot be considered adverse to other co-owners. (See: Maharajadhiraj of Burdwan, Udayachand Mahatab Chand v. Subodh 2 (1984) 2 SCC 286: AIR 1984 SC 930 3 AIR 1935 PC: 1935 All LJ 744 4 AIR 1947 PC 15 : 1946 All LJ 472: 49 Bom LR 231 - 7 - Gopal5; P Lakshmi Reddy v. L. Lakshmi Reddy6; Mohd. Baqar v. Naim-un-Nisa Bibi7.) 25. In Karbali Begum v. Mohd. Sayeed,8 it was held that a co-sharer in possession of the property would be a constructive trustee on behalf of other co-sharer who is not in possession and the right of such co- sharer would be deemed to be protected by the trustee co-sharer. 26. Certain observations of the Privy Council in Charles Edward Victor Seneviratne Corea v. Mahatantrigey Iseris Appuhamy, 9may be quoted below :- "Entering into possession on and having a lawful title to enter, he could not divest himself of that title by pretending that he had no title at all. His title must have ensured for the benefit of his co-proprietors. The principle recognised by Wood, V. C. in Thomas v. Thomas, 10holds good : 'possession is never considered adverse if it can be referred to a lawful title'. * * * His possession was, in law, the possession of his co-owners. It was not possible for him to put an end to that possession by any secret intention in his mind. Nothing short of ouster or something equivalent to ouster could bring about bring about that result. " (Emphasis supplied) 5 (1970) 3 SCC 681: AIR 1971 SC 376 6 AIR 1957 SC 314 : AIR 1957 SCR 195 7 AIR 1956 SC 548 8 (1980)4 SCC 396: AIR 1981 SC 77 9 AIR 1914 PC 243 10 (1855)2 K&J 79: 25 LJ Ch 159 (161); 110 RR 107 - 8 - 27. From the underlined portion extracted above, it will be seen that in order that the possession of co- owner may be adverse to others, it is necessary that there should be ouster or something equivalent to it. This was also the observation of the Supreme Court in P. Lakshmi Reddy's case5which has since been followed in Mohd. Zainulabudeen v. Syed Ahmad Mohideen,11. 28. "ouster" does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession, Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus (ii) long and uninterrupted possession of the person pleading ouster and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owners. Thus a co-owner, can under law, claim title by adverse possession against another co- owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law”. Adverse possession, of course is mixed question of law and fact. I do not find from the record that defendants have been able to establish their assertion that they were openly asserting their title against the plaintiff, or that they were dealing with the land as its true owner(s). Learned counsel for the appellants has argued that the possession of the defendants originated from that of Tikmu Ram 11 (1990)1 SCC 345: AIR 1990 SC 507 - 9 - which was never hostile and their subsequent continuation cannot give them any right. The column of possession clearly shows that the occupation is ‘tabe marji’ or permissive at the will of the owner merely because rent was not being paid by the defendants, they cannot claim title adverse to the plaintiff. He places reliance on the judgment of the Punjab and Haryana High Court in Gurdeep Singh vs. Rachhpal Singh and others (1993) Punjab Law Journal 98. He submits that in L. Hanuman Pershad vs. Roop Narain and another AIR 1971 SC 1312, the fact that the tenant had ceased to pay rent, cannot be used as a circumstance to say that the possession of a tenant who has ceased to pay rent is adverse to the landlord. His next submission is that illegal possession cannot be termed as adverse possession. He relies upon the decision of the Madhya Pradesh High Court in General Mines and Quarries Ltd. vs. Kartar Singh Prem Singh and Others, 1992 MP LJ 563 holding:- “3. … … … … … … … …It was neither alleged, nor proved that after termination of his employment, the defendant surrendered possession of the land to his master and, thereafter, dispossessed it. There was even no overt act, showing disclaimer of the plaintiff’s title over the suit land. The learned counsel for the legal representatives of the deceased defendant argued that as the defendant continued to remain in possession of the suit land even after termination of his service, his possession, thereafter, must be deemed to be illegal and was also treated to be so by the - 10 - plaintiff as evident from plaint paragraphs 4 and 5 and from notice dated 24.4.1953 (Ex.D- 3) and, therefore, the possession of the defendant after termination of his employment must be held to be hostile to the plaintiff. The argument deserves to be rejected. Illegal possession does not necessarily mean hostile or adverse possession. Possession of immovable property by a tenant even after determination of his tenancy may be called illegal, but that can never be held hostile or adverse to the landlord. In the instant case, if after termination of the employment, the plaintiff did not ask for possession of the land, the defendant could not claim his possession over it to be adverse. His possession would continue to be permissive and in the capacity of ex-servant of the plaintiff. … … … … … … … … …”. Learned counsel for the respondents submits that the plaintiff is out of possession which fact has been clearly established and accepted by both the courts below and that the suit for possession having not been brought within 12 years, it would not be maintainable and that the defendants had perfected their title by way of adverse possession. I cannot accept this submission. True that both the courts below have held that it is the defendants who are in possession at the same time, the ingredients necessary for establishing the adverse possession have neither been pleaded nor proved. There is no proved overt act on the record to show that the respondents defendants are or were claiming themselves to be the - 11 - true owners of the land. As I have held the approach of the Courts below in accepting the statements of the respondents that they built on the land or planted an orchard, without any corroboration cannot be accepted. This is not a finding of fact but a perverse finding. It is by now well established that the ingredients of adverse possession have to be strictly pleaded and proved. In Annasaheb Bapusaheb Patil and others vs. Balwant and others (1995) 2 SCC 543, the Hon’ble Supreme Court held: “14. Article 65 of the Schedule to the Limitation Act, 1963 prescribes that for possession of immovable property or any interest therein based on title, the limitation of 12 years begins to run from the date of the defendant's interest becomes adverse to the plaintiff. Adverse possession means a hostile assertion i. e. a possession which is expressly or impliedly in denial of title of the true owner. Under Article 65, 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 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. - 12 - 15. Where possession can 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.” The Hon’ble Supreme Court has laid down the necessary ingredients required for establishing the adverse possession. From the pleadings, I do not find that this has been pleaded. The possession, of course may be illegal but that per se does not grant any right or perfect the title of the person in occupation. What has to be proved is the consequent ouster or commission of acts consisting with such ouster and open, peaceful possession to the knowledge of the true owner. As noticed, the evidence of the parties does not lead to this conclusion. In these circumstances, I hold that the findings of the courts below that the defendants at perfected their title by way of adverse possession is not in accordance with law. It cannot be denied that the possession of the respondents is derivative from that of Tikmu who was the tenant and that he could not assert a title hostile to that of his land lord. In these circumstances it would not be open to the respondents to urge that their possession is hostile. This appeal is therefore, - 13 - accordingly allowed. Both the questions are answered in favour of the appellant and against the respondents. The judgment of the Courts below is modified to the extent they have held the defendants to be the owners by way of adverse possession. This finding is set aside and quashed. There shall be no order as to costs. Order accordingly. 11th January, 2007. (Dev Darshan Sud), (cm/aks) Judge.