Whether reporters of the Local Papers are allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Regular Second Appeal No. 139 of 2010. Decided on: July 2, 2010. Jitender Kumar and others. …… Appellants. Versus Krishna Wati. …….Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting? Yes. For the appellants : Mr. Virender Singh Chauhan, Advocate. For the respondent : Mr. Ashwani Pathak, Advocate. Surinder Singh, J (oral). Plaintiff-respondent is the owner of the suit land, comprised in Khasra No.140 measuring 0-01-66 hectares, adjacent to Khasra No.184, situated at village Up-Mahal Delag, Pargana Bagri Khurad, Tehsil Kandaghat, District Solan, H.P. She filed a suit for possession with a consequential relief of permanent prohibitory injunction with respect to aforesaid land, over which the defendants-appellants claimed their adverse possession. According to them, they are in possession of the suit land, to the knowledge of all including the plaintiff-respondent w.e.f. 27.10.1966. It was also their case that they were - 2 - shown in possession of the suit land during the Bandobast, which took place in the year 1992-93. They had constructed a dry latrine measuring 2 meters X 2 meters, on the boundary of Khasra No.184 and 140, and also planted a wall-nut tree, which is now about 27 years of age and rest of the land, was being used by them for growing the vegetables. 2. The learned trial Court held the plaintiff- respondent as the owner of the suit land and declined adverse possession to the appellant, as such suit of the respondent for possession was decreed, which was upheld in appeal by the first Appellate Court, thus, feeling aggrieved and dissatisfied by the judgment and decree passed by the courts below, the present regular second appeal has been filed by the defendants-appellants. 3. Heard and gone through the record of Courts below. 4. There is no dispute with respect to the ownership of the plaintiff-respondent qua the suit land. It is also a fact that the appellants are in possession of the suit land and they claimed that they have perfected the title by adverse possession. The onus to prove the adverse - 3 - possession laid on the appellants, to which in my opinion, failed to prove the same. 5. ‘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. [ P.T Munichikkanna Reddy and Others versus Revamma and Others [ (2007) 6 Supreme Court Cases 59] ]. In this case, the Apex Court also observed that the 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 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. - 4 - Modern statutes of limitation operate, as a rule, not only to cut off one’s right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statue under claim of right or colour of title. The argument for a more intrusive inquiry for adverse possession must not be taken to be against the law of limitation. Limitation statutes as statutes of repose have utility and convenience as their purpose. Nevertheless, there has been change on this front as well, as the right of property is now considered to be only a constitutional or statutory right but also a human right. 6. Therefore, in my considered view, the person asserting his adverse possession has to plead and prove as to when he perfected his adverse possession. 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 (wilful) or omission (negligent or otherwise) of the - 5 - right to defend or care for the integrity of property on the part of the owner of the property on paper. 7. In the instant case, the defendant No.2 Jitender Kumar in his evidence- affidavit, testified that the appellants have been in possession of the suit land since their forefathers and further stated that they have been in adverse possession of the suit land w.e.f. 27th October, 1966, to the knowledge of all including the plaintiff and simultaneously, stated that their ancestors had purchased the land besides the suit land and they have been in possession of the disputed land w.e.f. 27th October, 1966. Thus he has blown hot and cold in the same breath leaving everything to anybody’s guess as to when appellants perfected their title by adverse possession. 8. Legally, the possession for a long period would not ipso facto make their possession, to be adverse. The hostile animus is a sine quo non before it is perfected into adverse title as per law of limitation. It is required to be nec vi nec claim nec precario. 9. The present case is one of the few cases, where the possession of the appellants-defendants does not go to prove the ingredients of adverse possession, as alleged. Therefore, I do not find any substantial question - 6 - of law in the instant case and no grounds to interfere in to the concurrent findings of the courts below arrived at, which have been based upon the proper appreciation of evidence. As such, the appeal is dismissed in liminie. (Surinder Singh ) Judge July 2, 2010. (Pds)