Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Regular Second Appeal No. 296 of 2000. Judgment reserved on : 11.3.2010. Decided on: 25th March, 2010. Roshan Singh. …… Appellant. Versus Moti Singh and others. …….Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting? Yes. For the appellant : Mr. Romesh Verma, Advocate. For the respondents : Mr. G.S. Rathore, Advocate, for respondent No.1. None for other respondents. Surinder Singh, J. This second appeal was admitted on 14.7.2000, on the following substantial questions of law:- (i) Whether the claim set up by defendants initially by claiming himself to be owner of the suit land and in the same breath by claiming, having acquired title by adverse possession is mutually destructive and not permissible under the Law? (ii) Whether findings as recorded by both the courts below are vitiated on account of misreading and mis-appreciation of compromise Exhibit DX and parties are bound by the same? The plaintiff-appellant filed the instant appeal under Section 100 of the Code of Civil Procedure, challenging the judgment and decree passed by the learned District Judge, Shimla in Civil Appeal No.219-S/13 of 1998, decided on 1.4.2000, whereby - 2 - the appeal was dismissed and the judgment and decree passed by the learned trial court in Civil Suit No. 134/1 of 1994 decided on 26.10.1998 was affirmed. The brief facts are that plaintiff-appellant is owner of Khasra No.758 (old 416/372), total measuring 6 bigha 7 biswas, as per the jamabandi, for the years 1983-84 (Ex.PB), situated in Mauja Badiar. The said land has an orchard. It is alleged by the plaintiff/appellant that in the beginning of the year 1991 Moti Singh contesting defendant/ respondent illegally encroached upon a part thereof to the extent of 15 biswas. When it came to the notice of the plaintiff, he raised objection, on this the said defendant assured that in case the land is found in his ownership, he would hand over its possession to him, but the defendant did not do so and lingered on the matter on one pretext or the other. Thus, he filed a suit for possession on the basis of his title. The suit was resisted and contested by defendant/ respondent No.1. He raised the plea of limitation, estoppel, vis-a-vis valuation and also questioned the maintainability of the suit and further pleaded that the new Khasra No.758 is not the part of old Khasra No.416/372 min and alternatively raised the plea of adverse possession. In replication, the plaintiff/appellant denied the preliminary objection and according to him, the orchard over the suit land was raised by his father and the proforma defendants. Few of the plants were replaced by the new plantation by the plaintiff, which were either damaged or had become old and reasserted even paras on merit. - 3 - On the pleadings of the parties, the learned trial Court framed the following issues: “1. Whether the plaintiff is entitled for the possession of the suit land, as alleged? OPP 2. Whether the revenue entry qua ownership over the suit land is wrong and illegal, as alleged? OPP 3. Whether the plaintiff is estopped to file the present suit, as alleged? OPD 4. Whether the suit is not properly valued for the purpose of court fee and jurisdiction, as alleged? OPD 5. Whether the defendant No.1 has acquired title of the suit land by adverse possession? OPD. 6. Whether the suit is not maintainable, as alleged? OPD. 7. Relief.” On the completion of trial and upon hearing the parties, in answer to question No.5, the learned trial Court held that the defendant/respondent had acquired the title of the suit land by way of adverse possession and further that the value of the subject matter of the suit land is Rs.1,60,000/- and that the court fee of Rs.3905.60 paise was leviable on the plaint by the plaintiff within 60 days. Consequently the suit for possession was dismissed. The plaintiff felt aggrieved by the impugned judgment and decree passed by the learned trial court and filed the appeal before the learned District Judge. The learned District Judge framed the following points for its determination:- (i) Whether the learned trial court has fallen in error in holding that the value of the suit for the purposes of court fee and jurisdiction is Rs.1,60,000/-? - 4 - (ii) Whether the learned trial court has fallen in error in returning the finding that the respondent/ defendant has acquired title to the suit land by prescription? Both the points were answered in negative, as such, the appeal was dismissed and it was ordered that the plaintiff-appellant would pay the difference between the court fee already paid by him and the court fees leviable in view of the finding that the value of the suit property is Rs.1,60,000, both in respect of the suit and the appeal, within one month, failing which the amount of difference would be recovered from the plaintiff as arrears of land revenue. Shri Romesh Verma, learned counsel for the plaintiff- appellant vehemently argued that the findings of the courts below are neither supported by the material on record nor by any provision of law and both the courts below have erred in concluding the adverse possession of the defendant, which requires to be reversed. The writing Ex.DX was wrongly interpreted. Therefore, the suit filed is based upon the title of the plaintiff was bound to be decreed for possession. On the other hand, Shri G.S. Rathore, learned counsel for the contesting defendant/ respondent supported the judgment and decree passed by both the courts below and further ventilated that the plaintiff was estopped to file the suit on the basis of compromise Ex.DX. I have considered the rival contentions of the parties and have carefully examined the record. The plaintiff is claiming the possession of 15 biswas of the suit land, which is a part of 6 bigha 7 biswas of the entire land of - 5 - Khasra No.758. The plaintiff has failed to pin point the area encroached upon by adducing a cogent evidence or by producing and procuring ‘Tatima’. Although, it stands proved that entire Khasra number is owned by the plaintiff and the proforma defendants. Contrary from the pleadings and also from the evidence, it is not clear on what basis defendant is claiming himself to be the owner of the suit land. If he had been in possession of the said land since his fore-fathers, it would not ipso-facto prove his ownership. But however, his alternative plea of adverse possession requires to be examined. Admittedly, the suit land is a part of old Khasra No.416/372 min, which was assigned new Khasra No.758 during the settlement. Ex.DX is an agreement alleged to have been executed on way back in the year 1993, when an application was moved for the correction of the revenue entries. At that time, it was agreed by the parties that the area in question would remain in possession of the defendant till it is got demarcated. If it would fall in the ownership of the plaintiff, in that event, the defendant would give equal area to the plaintiff in exchange, but did not honour his undertaking. Thus, the plaintiff filed the suit in the year 1994. The perusal of Ex.DX shows that the defendant was allowed permissive possession. Neither in his written statement nor in his statement he averred and testified as to when his possession became hostile to the real owner. The defendant may be in possession for any number of years, but he can perfect the title unless he pleads and proves the ingredients of adverse possession. In Annakili v. A. Vedanayagam, [2007(14) SCC 308, the apex Court observed as under:- - 6 - “24.Claim by adverse possession has two elements: (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well-settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in the said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more does not ripen into a title.” In another judgment titled Pt. Munichikkanna Reddy and others v. Revamma and others [(2007) 6 SCC 59] the apex Court considered various facets of law on adverse possession and laid down various prepositions inter-alia holding that the 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, i.e. nec vi, nec clam, nec precario. To assess a claim of adverse possession, two-pronged enquiry is required: - 7 - 1. Application of limitation provision thereby jurisprudentially “wilful 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. The apex Court further held that the adverse possession is a right which comes into play not just because someone loses his right to reclaim the property out of continuous and wilful 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. Intention is a mental element which is prove 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 - 8 - 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 apex Court in Pt. Munichikkanna Reddy’s case supra further observed that the adverse possession right is not a substantive right but a result of the waiving (wilful) 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. In the instant case, although defendant No.1 alleged that he is in possession of the suit land since his forefathers, but on the facts, ingredients of adverse possession are not established. Even an unduly long undisturbed possession as stated above does not prove the intention of the adverse possessor and there is no evidence of hostility. The initial burden is on the plaintiff to prove his title to which, he has successfully proved but the defendant/ respondent failed to discharge the onus which shifted upon him, to prove that he acquired the title by adverse possession. The writing Ex.DX would neither operate as estoppel nor prove the hostility. It only proves the defendant in possession as a licencee. Therefore, the findings of both the courts below on issue No.5 that the defendant had perfected the title by adverse possession qua the suit land are wrong and unsustainable, thus set-aside. - 9 - Now the question remains whether the suit of the plaintiff can be decreed for possession in absence of any identification of land partly encroached upon the suit Khasra. Although, he has proved his title over the suit Khasra No.416/372 (now 758) total measuring 6 bigha 7 biswas , but a part thereof to the extent of 15 biswas was allegedly encroached upon by the defendant, which is a min number i.e. part of a big Khasra number. The plaintiff has failed to point out which part/portion or site of the suit khasra was encroached upon by the defendant. No tatima was filed and proved on record. Therefore, in absence of identification of the land, no decree for possession can be passed. In result for the foregoing reasons, the plea of adverse possession raised by the defendant fails. The findings on issue No.5 in favour of the defendant/ respondent are set-aside, but the suit of the plaintiff for possession can also not be decreed for want of identification of the land, as such, the appeal is dismissed. The substantial points are accordingly answered. No other points urged or pressed. Parties to bear their own costs. (Surinder Singh ) Judge March 25, 2010. (Pds)