R.S.A. No. 929 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 929 of 2010 (O&M) Date of decision: 10.03.2010 Maghar Singh and another ....Appellants versus Hardev Singh and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Gagandeep Toni, Advocate, for Mr. Sunil Toni, Advocate, for the appellants. *** VINOD K. SHARMA, J. (ORAL) This is defendants' appeal, against the judgment and decree dated 19.12.2009, passed by the learned Courts below, vide which the suit filed by the plaintiff/respondents for possession and declaration, was decreed. The plaintiff/respondents sought possession of land measuring 15 kanals 8 marlas and for declaring khasra girdawari of 1974-75 whereby defendants Maghar Singh and Nachhattar Singh were shown in possession of the land, to be null and void. The pleaded case of the plaintiffs was, that defendants Maghar Singh and Nachhattar Singh got their names entered in column No.5 of the jamabandi for the year 1974-75, as cultivator in connivance with the officials of the revenue department. The case of the plaintiffs was, that they had no knowledge of this entry, in fact, Ganda Singh son of Attar Singh was in possession of the land in dispute, who died on 2.11.1993, R.S.A. No. 929 of 2010 (O&M) -2- and after his death plaintiffs became owner in possession of the land in dispute and mutation of inheritance was also sanctioned in their name. The appellants, Maghar Singh and Nachhattar Singh, got interim injunction from the Court on the basis of wrong entries and took forcible possession on 20.11.2005. The plaintiff/respondents filed suit for possession and also for declaring the entries in the jamabandi to be wrong. The suit was contested by defendants No.1 and 2 only. Besides taking preliminary objections qua maintainability of the suit, and cause of action, the defendant/appellants claimed, that they were in possession of the land since 1972, without any objection from the plaintiff/respondents, therefore, they had become owner by way of adverse possession. They further claimed, that they were in possession of the land as tenant, without rent on the basis of writing dated 4.7.1972 and that the suit was filed merely to harass them. Plea of oral partition was also taken, alleging therein that father of the plaintiff/respondents Prem Singh, grandfather Attar Singh, Ganda Singh, defendants No.1 and 2, and their father Jagnam Singh, came in possession of the land on the basis of said oral partition. This stand prima facie, therefore, is contrary to the plea of adverse possession. In replication, the averments made in the plaint were reiterated and those of the written statement were denied. The learned trial Court on appreciation of evidence, recorded a finding of fact, that the plaintiffs being owner, were entitled to possession. They were held entitled to the declaration. The suit was said to be within limitation by holding that the defendant/appellants R.S.A. No. 929 of 2010 (O&M) -3- failed to prove their adverse possession. The suit was held to be maintainable. Similarly, it was held, that the plaintiff/respondents had locus standi to file the suit. On issue No.7 it was held, that the defendant/appellants failed to prove their adverse possession. The findings recorded by the learned trial Court were affirmed by the learned lower appellate Court. The plea of adverse possession was rejected by the learned lower appellate Court, by recording the following finding: - “20. In this back drop, now adverting to the case in hand, at the very outset, it is pertinent to mention that qua the plea of adverse possession, Maghar Singh in his affidavit Ex. DW-3/A had only stated about they being in continuous possession since 4.7.1972. But however, he is absolutely silent about his possession to be hostile in any manner and to the knowledge of the plaintiffs. Besides, the same, even his witness Gurcharan Singh DW-1 in his affidavit Ex. DW-1/A as well as Jaimal Singh DW-2 in his affidavit Ex. DW-2/A have only stated about the continuous possession of the defendants since the year 1972 and in the light of the same, the said witnesses have not deposed about the requisite conditions with regard to the hostile assertion and enjoyment of the possession of the defendants and in this view of the matter, the plea of adverse possession does not stand established. Rather, from the revenue record, proved in evidence, the permissive possession of the defendants is made out. Even in the written statement, the defendants had taken the plea of they being in possession as tenants without rent. Perusal of the jamabandi banked upon by the defendants, which has R.S.A. No. 929 of 2010 (O&M) -4- been proved as Ex.D.5, reveals the names of the plaintiffs, in the ownership column. However, in the possession column, it is the names of the defendants which is depicted, but the nature of possession is mentioned as Gair Marussi. In column No.9, there is mention of rent not being paid being nephews. Even in the khasra girdawaries relied upon by the defendants, which are ex. D-2, Ex. D-3 and Ex.D.4, the possession of the defendants is shown in the same capacity Gair Marussi rent not being paid in the capacity of nephews. Thus, from these documents, it is established that the possession of the defendants over the suit land, was permissive possession and in the light of the same, the plea of adverse possession stands shattered. Rather, on the other hand, the plaintiffs have proved the jamabandi Ex.P-1 which depicts their names as owners and also they have proved the mutation of inheritance in their favour regarding the suit land, which is Ex.P-2. It is the specific claim of the plaintiffs that the entries have been wrongly made in the jamabandi for the year 1974-75 and they specifically claim the plaintiff to have come into possession on 2.11.2005. Though the different claim vis-a-vis possession over the suit land had been taken by the defendants, but they have failed to establish the same. Even though, partition is alleged to have been effected in the year 1972, but no where the same is established to have been depicted in the revenue record. As such, the defendants are not clear about their stand and the plaintiffs are established to be the owners, from whom, the defendants had taken forcible possession. 21. Even during the course of arguments, it has further been assiduously submitted by the learned counsel for the appellants/defendants, that their possession over the suit land, is hostile and therefore suit is time barred. R.S.A. No. 929 of 2010 (O&M) -5- But however, this submission is not tenable. As already observed above, neither the pleadings nor the evidence brought on record show that the possession of the defendants or their father at any stage had become hostile. At the most, their possession can be taken to be permissive and in view of the same, the present suit cannot be said to be time barred.” Mr. Gagandeep Toni, learned counsel, appearing on behalf of Mr. Sunil Toni, learned counsel, for the appellants, contended that the appeal raises the following substantial question of law: - “Whether the finding of the learned Courts below, holding that the defendant/appellants had failed to prove their adverse possession, is outcome of mis-reading of evidence and law, thus, perverse?” In support of the substantial question of law, the learned counsel for the appellants vehemently contended, that it was proved by evidence on record that the defendant/appellants, were in possession of the land since 1972, vide writing Ex. D1 and thereafter continued in uninterrupted possession. The learned Courts below committed an error by mis-reading the evidence to hold, that the defendant/appellants failed to prove their adverse possession. In support of this contention, the learned counsel for the appellants placed reliance on the judgment of the Hon'ble Kerala High Court in Hamsa Haji Vs. Rabia Umma, 2002(3) Civil Court Cases 191, to contend that in order to constitute adverse possession, it is sufficient that the possession is open, without any concealment and it is not necessary, that the possession must be so effective as to bring it to the specific knowledge of the true owner. R.S.A. No. 929 of 2010 (O&M) -6- The contention of the learned counsel for the appellants, therefore, was that the appellants were entitled to be declared as owner by way of adverse possession. On consideration, I find no force in the contentions raised by the learned counsel for the appellants. Even in the judgment relied upon by the appellants, the Hon'ble Kerala High Court, was pleased to lay down, that hostile and open possession is required to be proved if the ouster of title is pleaded. In the present case, the defendant/appellants were claiming, ouster of title of the plaintiffs by asserting ownership by adverse possession. In order to succeed, the defendant/appellants were required to prove their possession to be openly and unequivocally, hostile, to the owner. The learned lower appellate Court rightly held, that the possession claimed by the defendant/appellants was permissive, which could not mature into adverse possession, unless specific ouster was pleaded and proved. The findings cannot be said, to be outcome of misreading of evidence or perverse, as contended by the learned counsel for the appellants. The substantial question of law raised is answered against the appellants. No merit. Dismissed. (Vinod K. Sharma) Judge March 10, 2010 R.S.