IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RSA No. 366 of 1999 Date of Decision : September 21, 2010 Surat Ram …Appellant. v. Jyoti (since deceased) through her LRs. Bhadari & Ors. …Respondents. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Ashok Sood, Advocate. For LRs of respondent No.1: Mr. Romesh Verma, Advocate Sanjay Karol, J (Oral). This appeal filed under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 27.5.1999 passed by Addl. District Judge, Shimla in Civil Appeal No. 95-S/13 of 1995, affirming the judgment and decree dated 30.12.1994 passed by Sub Judge Ist Class (II), Rohru, Distt. Shimla, whereby the plaintiff’s suit for permanent prohibitory injunction stands decreed. 2. Necessary facts for adjudication of the present appeal are as under:- 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Sh. Jyoti Ram, original plaintiff (respondent herein) filed a suit for injunction against defendants Sh. Surat Ram (appellant herein) and Smt. Bhaj Devi & Ms. Kamla Devi (respondents No.2 & 3 herein), on the premise that suit land stood allotted to him under the landless scheme formulated by the State. He took possession and cultivated the same. Defendants who have no right, title or interest in the same are interfering with his possession. Consequently, he prayed for a decree for injunction. The defendants resisted the suit. Plea of ownership on the basis of adverse possession was taken. 3. Trial Court struck the following issues :- 1. Whether the plaintiff is the owner in possession of the suit land as alleged? ….OPP 2. Whether the plaintiff is entitled to relief of injunction as prayed for? ……OPP 3. Whether the suit is hit by S.38 of the Specific Relief Act as alleged? ……OPP 4. Whether the suit in the present form is not maintainable. if so, its effect? …..OPD 5. Whether the plaintiff is estopped by his acts, conduct and deeds from filing the present suit as alleged? ….OPD 6.Whether the present suit is barred by limitation? ……OPD 7. Whether the plaintiff has no cause of action as alleged? ……OPD 8. Whether the defendants has become owner of the suit land as alleged? ...OPD 9. Whether the plaintiff has suppressed material facts from the court and if so its effects? …OPD 3 10.Relief. 4. In terms of judgment and decree dated 30.12.1994, plaintiff’s Civil Suit No. 150/1 of 91 titled as Joti Ram vs. Surat Ram & Ors., stood decreed. Issues No. 1 & 2 in affirmative were decided in plaintiff’s favour and issues No. 3 to 9 decided against the defendants. Plaintiff was found to be in possession of the suit land and consequently his suit was decreed. 5. The lower Appellate Court after fully and minutely appreciating the material on record upheld the judgment passed by the trial Court and dismissed the defendants’ appeal. Hence the present appeal which was admitted on the following substantial questions of law:- “1. Whether pleadings of adverse possession as contained in written statement filed by appellant are insufficient for proving ownership by way of adverse possession? 5. Whether suit is bad for non-joinder of state of H.P., shown owner of suit land in revenue record and residents of village shown in possession of suit land for common use and common purpose?” 6. In my considered view substantial questions of law do not arise for consideration in the present case. There are concurrent findings of fact recorded by the court below. Yet I have ventured to look into the material on record including the 4 pleadings of the parties. Now in the written statement defendants have pleaded as under:- “Preliminary objections, 1. That the plaintiff is out of possession as far as the suit land is concerned and as such the present suit is straightway hit by sec. 38 of Specific Relief Act. 2. That the suit in its present form is not legally competent and no relief as prayed can be legally granted to the plaintiff. 3. That the plaintiff is estopped by his acts, conduct and deeds from filing the present suit against the defendants. 4. That the suit of the plaintiff is hopelessly barred by time and is liable to be dismissed on this short ground. 5. That the cause of action ever accrued to the plaintiff against the answering defendants, Hence the suit is liable to be dismissed straightway. 6. That the plaintiff has not come to the Court with clean hands as the plaintiff has suppressed material and vital facts from this Ld. Court and the present suit has been filed with a view to suppress and coerce the answering defendants. Reply on Merits. Para-1. That Para 1 of the plaint is wrong hence denied in toto. The replying defendants are in possession of the suit land continuously, openly for the last more than 35 years. Para-2. That the Para 2 of the plaint as stated are absolutely wrong and emphatically denied. The plaintiff or his predecessor has not been in possession of the suit property with in 12 years of the filing of the suit and the same has been in continuous, open, hostile possession of the answering defendants in their own rights and as such 5 the replaying defendants have become owners of the suit property by way of adverse possession. Para-3. That the contents of Para 3 of the plaint as stated are not only false but frivolous also. The suit of the plaintiff is wholly misconceived one. That it is submitted that the answering defendants have raised an apple orchard on the suit land having about 200 apple plants ranging between 5 to 7 years and the apple orchard in question is well maintained and looked after by the answering defendants. It is emphatically denied that the replying defendants want to dispossess the plaintiff from the suit land. That as submitted above that plaintiff is out of possession qua the suit land and the answering defendants have become owners of the suit land by way of adverse possession as they are in continuous, open, visible and adverse possession for more than the statutory period. That possession of the plaintiff has also been recorded in the revenue records during the settlement operation and despite several requests by the defendant No.1 to obtain the latest copy of Khatoni prepared during the settlement operation, the same has not been supplied to him because last certificate of A.S.O. on the Khatoni has not been appended as is revealed from the copy of endorsement made by the Reader in the copy which is enclosed. Para-4. That the contents of Para 4 of the plaint as alleged are wrong hence denied vehemently. That the plaintiff has no cause of action nor it arose on the alleged date. Para-5. That the contents of Para 5 of the plaint are not denied. Para-6. That likewise contents of Para 6 of the plaint calls for no written statement. It is, therefore, respectfully prayed that the plaintiff’s suit merits dismissal and the same be dismissed with 6 ordinary and special costs as it is out and out a frivolous suit.” (Emphasis supplied) 7. In replication, plaintiff has denied contents thereof. 8. By way of concurrent findings of facts Courts below have held the plaintiff to be owner in possession of the suit land. It was by virtue of a grant made to him by the State of Himachal Pradesh. 9. Be that as it may be, assuming that defendant is in possession of the suit land even then no case for interference is made out. 10. In P.T. Munichikkanna Reddy and others vs. Revamma and others, 2007(6) SCC 59, the Apex Court has held as under:- “Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile………” “…..Efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which right to access the court expires through efflux of time. Adverse possession has been termed as a negative and consequential right effected only because somebody else’s positive right to access the court is barred by operation of law. As against rights of the owner of the property on paper, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor 7 who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. “…once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession…” “…To assess a claim of adverse possession, two pronged enquiry is required: 1. Application of limitation provision thereby jurisprudentially “willful neglect” element on part of the owner is established. Successful application in this regard distances the title of the land from the owner of the property on paper. 2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the owner of the property on paper, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property….” “….Adverse possession is a right which comes into play not just because someone loses his right to reclaim the property out of continuous and willful neglect but also on account of possessor’s positive intent to dispossess. Therefore it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the owner of the property on paper. This test forms the basis of decision in the instant case…” 8 “…Intention is a mental element which is proved and disproved through positive acts. Existence of some events can go a long way to weaken the presumption of intention to dispossess which might have painstakingly grown out of long possession which otherwise would have sufficed in a standard adverse possession case. The fact of possession is important in more than one ways: firstly, due compliance on this count attracts the Limitation Act and it also assists the court to unearth the intention to dispossess. …” “The intention to dispossess needs to be open and hostile enough to bring the same to the knowledge and the plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving (willful) or omission (negligent or otherwise) of the right to defend or care for the integrity of property on the part of the owner of the property on paper. Adverse possession statutes, like other statutes of limitation, rest on a public policy that does not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence. Intention implies knowledge on the part of adverse possessor. The issue is that intention of the adverse user gets communicated to the owner of the property on paper. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the owner of the property on paper….” 9 “….Intention to possess cannot be substituted for intention to dispossess which is essential to prove adverse possession….” “16. In similar circumstances, in the case of Thakur Kishan Singh (dead) v. Arvind Kumar [(1994) 6 SCC 591] this court held: (SCC p. 594, para 5) "5.As regards adverse possession, it was not disputed even by the trial court that the appellant entered into possession over the land in dispute under a licence from the respondent for purposes of brick-kiln. The possession thus initially being permissive, the burden was heavy on the appellant to establish that it became adverse. A possession of a co-owner or of a licencee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissible possession into adverse possession. Apart from it, the Appellate Court has gone into detail and after considering the evidence on record found it as a fact that the possession of the appellant was not adverse. (emphasis supplied)” “17. The present case is one of the few ones where even an unusually long undisturbed possession does not go on to prove the intention of the adverse possessor. This is a rare circumstance, which Clarke LJ in Lambeth London Borough Council v Blackburn (2001) 82 P & CR 494, 504 refers to: "I would not for my part think it appropriate to strain to hold that a trespasser who had established factual 10 possession of the property for the necessary 12 years did not have the animus possidendi identified in the cases. I express that view for two reasons. The first is that the requirement that there be a sufficient manifestation of the intention provides protection for landowners and the second is that once it is held that the trespasser has factual possession it will very often be the case that he can establish the manifested intention. Indeed it is difficult to find a case in which there has been a clear finding of factual possession in which the claim to adverse possession has failed for lack of intention.” (emphasis supplied) “18. On intention, The Powell v. Macfarlane (1977) 38 P & CR (Property, Planning & Compensation Reports) 452 to 472 is quite illustrative and categorical, holding in the following terms: "If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ('animus possidendi')." If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner. In my judgment it is consistent with principle as well as authority that a person who originally entered 11 another's land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner. What is really meant, in my judgment, is that the animus possidendi involves the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow." (emphasis supplied) 30. Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd. Mohd. Ali v. Jagadish Kalita, SCC para 21.)" “22. A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by this Court in Karnataka Board of Wakf v. Government of India and Others [(2004) 10 SCC 779] in the following terms: (SCC p. 785, para 11) 12 "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 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 the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession" (Emphasis supplied) 11. To the same effect are decisions rendered in Mohan Lal (deceased) through his LRs Kachru and others vs. Mirza Abdul Gaffar and another, (1996) 1 SCC, 639 and Virendra Nath through P.A. Holder R.R.Gupta vs. Mohd. Jamil and others (2004) 10 SCC 779 . 12. In Karnataka Board of Wakf (supra), it has been held as under:- “A plaintiff, filing a title suit, should be very clear about the origin of title over the property. He must specifically plead it. The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.” (Emphasis supplied) 13 13. In Vasantiben Prahladji Nayak and others vs Somnath Muljibhai Nayak & Ors. (2004) 3 SCC 376, it has been held as under:- “To establish ouster in cases involving claim of adverse possession the defendant has to prove three elements namely, hostile intention; long and uninterrupted possession; and exercise of the right of exclusive ownership openly and to the knowledge of the owner. In cases of adverse possession, the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but it commences from the date when the defendant’s possession became adverse.” (Emphasis supplied) 14. In Roop Singh (dead) through L.Rs. vs. Ram Singh (dead) through L.Rs, AIR 2000 SC 1485, it has been held as under:- “6. …Mere possession for a long time does not result in converting permissive possession into adverse possession [Re: Thakur Kishan Singh (Dead) v. Arvind Kumar, (1994) 6 SCC 591 : 1994 AIR SCW 4082: AIR 1995 SC 73)]” “9. …It is also to be stated that plea of adverse possession and retaining the possession by operation of Section 53-A of the Transfer of Property Act are inconsistent with each other. Once it is admitted by implication that plaintiff came into possession of the land lawfully under the agreement and continued to remain in possession till the date of the suit, the plea of adverse possession would not be available to the 14 defendant unless it has been asserted and pointed out hostile animus of retaining possession as owner after getting in possession of the land. [Re: Mohan Lal v. Mriza Abdul Gaffar, (1996) 1 SCC 639 : (1996 AIR SCW 306 : AIR 1996 SC 910)]” 15. This Court in Rajinder Kumar and another vs. Bhag Singh, 1996 (1) S.L.J. 215, has held that the defendant’s entry in the settlement record in possession without any status will not carry any legal weight whatsoever, moreso, to prove the plea of adverse being more than 12 years. 16. In Tilak Raj vs. Bhagat Ram and another, 1997 (1) S.J.J. 84, this Court has also held that once the defendant has failed to establish his adverse possession for the statutory period, a suit for possession based on title cannot be dismissed as being time barred on the ground that the same was filed after the expiry of twelve years from the date of dispossession. 17. Keeping in view the aforesaid principles of law laid down by the Apex Court, evidence led by the parties needs to be appreciated in the facts and circumstances of the present case. 18. Now in the instant case, it cannot be said that the defendants have been able to show from the record that they are in continuous and uninterrupted possession which is hostile to the plaintiff or the State over a long period of time. In the pleadings the defendants do not give the date of their hostile possession. The averment is vague and unspecific. As per their pleadings the defendants have planted an apple orchard on the 15 suit land and the age of the plants is ranging from 5 to 7 years. The suit was filed sometimes in the year 1991. Thus plaintiff could have been in possession of the land only 5 to 7 years prior to the same. 19. From the oral evidence led by the defendants, it still could not be proved as to from which date and against whom the defendants were occupying the suit land by way of adverse possession. With regard to the possession, statements of S/Sh. Shankar Dass (DW-2), Narain Chand (DW-4) & Pradeep Kumar (DW-6) are not only contradictory but also do not prove the exact date and the essential ingredients so as to constitute a plea of hostile possession. From the same, it also could not be shown from when the defendants had animus possidendi. From the material on record, it is quite evident that defendants have no where pleaded or proved the fact as to at what point of time they or their predecessor-in-interest declared animus towards the rightful owner. 20. The defendants have neither pleaded nor proved the plea of adverse possession as required under law. Plaintiff proved his title, therefore onus rests heavily on the defendants to plead, substantiate and prove his plea of adverse possession. Mere intention to possess cannot be substituted for intention to dispossess. Also no special equities have been shown by the defendants to defeat the plaintiff’s right. 21. The plea of non-joinder of parties was never raised by the defendants in their written statement. No issue with regard 16 to the same was got framed. Even before the lower Appellate Court this point was never raised or urged. Hence this question does not arise for consideration. 22. For all the aforesaid reasons, present appeal without merit is dismissed. September 21, 2010. (Sanjay Karol) (rana) Judge.