IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 3101 of 1997 (O&M) Date of Decision: 2.2.2010 Jeet Singh (since deceased) through L.Rs. ....... Appellant through Shri R.S.Tacoria, Advocate with Shri V.D.Sharma and Shri Sumeet Sheokand, Advocates. Versus Molu Ram (since deceased) through L.Rs. ....... Respondent through None. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. C.M.No.1372-C of 2008 Allowed as prayed for. R.S.A.No.3101 of 1997 This Regular Second Appeal is directed against judgments and decrees dated 23.12.1993 and 24.10.1996 passed respectively by the Additional Senior Sub Judge, Ambala City (hereinafter referred to as `the R.S.A.No.3101 of 1997 (O&M) -2- .... trial Court') and the Additional District Judge, Ambala (described hereinafter as `the first appellate Court'). Plaintiff-Molu Ram had filed a suit against defendant-Jiwan Singh for declaration that he was owner in possession of land in dispute measuring 16 kanals and 3 marlas situated in village Khanpur Labana, Tehsil Naraingarh, District Ambala (for short, `the suit property'). A decree for permanent injunction as a consequential relief was also sought restraining Jiwan Singh from interfering in the possession of Molu Ram over the suit property. It was averred that the possession of Molu Ram over the suit property was continuous, open, hostile and to the knowledge of Jiwan Singh for the last thirty years and that Jiwan Singh was now trying to assert his possession. It was further averred that since the name of Jiwan Singh continued to appear in the column of ownership in the revenue record qua the suit property, he was questioning the right of Molu Ram thereon. Jiwan Singh put in appearance and filed his written statement contesting the suit. He had asserted that he was owner of the suit property and that Molu Ram was a tenant under him on 1/3rd Batai. The other averments made in the plaint were also denied. The parties went to trial on the following issues:- 1. Whether the plaintiff is the owner in possession of the disputed land?OPP 2. Whether the plaintiff is entitled to the injunction as prayed for?OPP 3. Whether the suit is not maintainable in the present R.S.A.No.3101 of 1997 (O&M) -3- .... form?OPD 4. Whether the plaintiff has no locus standi to file the present suit?OPD 5. Whether the suit is bad for non-joinder of necessary party?OPD 6. Whether the defendant is entitled to special costs?OPD 7. Whether the plaintiff has no cause of action?OPD 8. Relief. Both the Courts below concluded that the possession of Molu Ram was uninterrupted over the suit property for the last thirty years and that his title had been perfected by way of adverse possession. Consequently, the suit was decreed and the appeal of Jeet Singh son of Jiwan Singh, who had died in the meantime, was dismissed. Hence, this appeal was filed by Jeet Singh, who has also died during the pendency thereof and he is now represented by his legal representatives. It may also be mentioned here that Molu Ram has also expired and his legal representatives have been brought on record. Learned counsel for the appellant has contended that the plaintiff had not pleaded the bare minimum facts which were required to be pleaded and proved for establishing a plea of adverse possession. He further contended that if the averments in the plaint are perused, then Jiwan Singh was admitted to be owner of the suit property and, therefore, this fact was destructive of the plea of Molu Ram with regard to his adverse possession. R.S.A.No.3101 of 1997 (O&M) -4- .... Learned counsel for the appellant urged that it was not pleaded as to when and how the possession of Molu Ram became open and hostile to the true owner. He further urged that the jamabandi for the year 1960-61 and also the consequent revenue record on the basis of which Molu Ram based his claim, consistently showed him to be a tenant and in the column of ownership, the name of Jiwan Singh appeared. He argued that once the possession of Molu Ram was on the basis of tenancy, it was for him to plead and prove as to when the tenancy was surrendered so as to gain possession which was open and hostile to the knowledge of the true owner. He next argued that in the absence of any such pleadings, the suit of Molu Ram could not have been decreed and the possession of the suit property would be deemed to be permissive under Jiwan Singh. Learned counsel for the appellant contended that the plea of adverse possession can, at best, be claimed by way of defence and Molu Ram could not base his claim thereon so as to entitle him to file a suit for declaration & permanent injunction. No one has appeared on behalf of the legal representatives of Molu Ram despite the fact that the case was shown in the list of the cases to be taken up for hearing. I have thoughtfully considered the contentions/ arguments of the learned counsel for the appellant and have gone through the whole record. If the plaint is to be perused, then it is evident that Molu Ram had asserted himself to be the owner in possession of the suit property. It is R.S.A.No.3101 of 1997 (O&M) -5- .... a settled principle of law that if a person asserts his ownership, then he cannot claim adverse possession over a property as both these pleas are mutually destructive. If a person pleads adverse possession, then by implication, he has to admit the ownership of the true owner and then has to plead as to how his possession is hostile, open, continuous and to the knowledge of the true owner. To the contrary, if a person pleads ownership, then he has to state as to how he has become owner of the property. In the instant case, the jamabandi for the year 1960-61 which is on record as Exhibit D5, shows that the predecessor-in-interest of Jiwan Singh was recorded as owner of the suit property, whereas the name was Molu Ram was entered as a tenant thereon. Thereafter also, the subsequent entries in the revenue record reflect Jiwan Singh to be the owner of the suit property while Molu Ram was recorded as “Bila Lagan Bai KhayalBai”, meaning thereby “without rent in anticipation of sale”. In such an eventuality, it cannot be said that Molu Ram, who entered possession of the suit property as a tenant, would have perfected his title by way of adverse possession as his possession would be deemed to be continuing as permissive even if he has stopped paying rent. The relationship of landlord and tenant would not merely come to an end because of this factor alone. This Court in Daulat Ram and Nepal Singh Versus Payare Lal and Bhagwan Sahai, 1975 P.L.J. 12, has observed in paragraph 16 of the judgment as under:- “16. From these observations it is clear that the learned R.S.A.No.3101 of 1997 (O&M) -6- .... Additional District Judge clearly found that in the jamabandis and revenue records upto 1955-56 the defendants had been recorded as tenants of the plaintiffs. In the jamabandi for the years 1955-56 (Ex.D.9), the entries in the ownership column and the tenancy column were the same as in the previous jamabandis but in the rent column it was mentioned `basharah malkan' (at the proprietor's rate). It is thus clear that even in 1955-56 the title of the plaintiffs as owners of the land was not denied noir did the defendants deny their status as tenants. The entries in the jamabandi for the year 1958-59 (Ex.D.8) do not throw any light on this matter but the entry in the rent column in the jamabandi for the years 1962-63 (Ex.D.7) for the first time recorded `bila lagan bewajah baradari' (without rent on account of brotherhood). There is no entry in any revenue reord showing that at any time between 1940-41 and the date of the suit, the defendants-respondents had surrendered their possession as tenants on the land to the owners nor has such an assertion been made by the plaintiffs in their pleadings or evidence. Mahajan J., has referred to various judgments according to which merely because a tenant has stopped paying rent does not mean that he has ceased to be the tenant. Even the setting up of a hostile title in himself by the tenant against his landlord does not put an end to the relationship of landlord and tenant unless the tenant first gives up the possession as a tenant R.S.A.No.3101 of 1997 (O&M) -7- .... and then re-enters adversely to the true owner in his own right. As long as the tenant continues to be in possession in pursuance of his tenancy, he is estopped from denying the title of the landlord as is provided in section 116 of the Evidence Act. The view of the learned Additional District Judge that the relationship of landlord and tenant had ceased to exist between the parties merely because the tenants had stopped paying rent to the plaintiffs was, therefore, erroneous in law and the learned Single Judge could reverse the same in second appeal. It may be remembered that the finding arrived at by the learned lower appellate Court was not a mere finding of fact but had been arrived at by drawing an inference of law from the facts which was erroneous and afforded a ground for second appeal.” In Joginder Pal alias Voginder Pal Versus Angad Singh and others, 1983 P.L.J. 14, a learned Single Judge of this Court observed as under:- “3. It is contended by Mr.Atma Ram, learned counsel for the appellant, on the strength of the entries made in the revenue record that the plaintiff and his predecessors-in-interest have been in possession of the land without paying any rent and that their adverse possession on the land in dispute was fully proved. In support of his contention, the learned counsel relied on the judgments of this Court in Puran v. Kure, 1955 P.L.R.57 and Maman Singh v. The Resident Magistrate, Gohana and R.S.A.No.3101 of 1997 (O&M) -8- .... others, 1965 P.L.R. 161, and of the Lahore High Court in Ghulam Murtaza v. Nagina and others, AIR 1930 Lahore 991. After going through the rulings in the light of the entries made in the revenue record, I find that the same have no applicability to the facts of the case in hand. In the circumstances of the case, merely non-payment of rent, would not be sufficient to warrant a finding that the possession of the plaintiff had become adverse. The learned appellate Court on consideration of the entire matter, has rightly come to the conclusion that the plaintiff has failed to prove his adverse possession over the land in dispute. The finding being a pure finding of fact cannot be disturbed in second appeal.” Similarly, in Bhag Singh and others Versus Smt.Gulab Kaur, 2000 (1) P.L.R. 547, another learned Single Judge of this Court laid down as under:- “9. I agreed with the reasons advanced by the first appellate Court to a limited extent that the execution of the writing Ex.P.7 in Bahi does not convey any right, title or interest with regard to the ownership because the alleged sale is not of Rs.99/- but a reading of the said document would show that the land measuring 6 biswas was sold for a sum of Rs.594/- and as per section 17 of the Registration Act, the sale of immovable property above Rs.100/- could only be made by a registered instrument. This document is neither stamped nor registered R.S.A.No.3101 of 1997 (O&M) -9- .... and, therefore, it is inadmissible regarding the conveyance of the title. In this regard, I endorse the finding of the first appellate Court that the document does not convey any title in favour of the plaintiffs with respect to the suit property. However, under Section 49 of the Registration Act even the unregistered document can be looked into for collateral purposes. It is the case of the plaintiffs that they got the possession of the suit property under the private sale. Khasra Girdawari Exs. P.1 to P.3 pertained to the years 1961-62 to 1974-75. A reading of the same would show that plaintiffs have been recorded in possession of the land in dispute as Gair Marusi under Mehma Singh in the year 1971-72. The entry of their possession is shown as Gair Marusi Billa Lagan Bawaja Bai. In Ex.P.5, the jamabandi for the year 1965-66, the plaintiffs have been shown in possession as Gair Marusi under Mehma Singh and as per Ex.P.6 the Jamabandi for the year 197-71, the possession of the plaintiffs has been shown as Gair Marusi. In other words, it can be said that plaintiffs were in established possession of the property in question on the date of the institution of the suit. In this process, their possession could be protected. It is not a case where the plaintiffs had entered into forcible possession. Earlier, they entered into possession as Gair Marusi and then under the sale deed, which is not admissible and does not convey any title. Under the law R.S.A.No.3101 of 1997 (O&M) -10- .... as applicable, no injunction can be granted in favour of a trespasser against the true owner but here is not a case of trespasser. The plaintiffs got the possession under oral sale which is not proved legally. Their possession was permissive and established on the date of the institution of the suit, therefore, they could only be evicted in due process of law. 10. I do not agree with the reasons advanced by the trial Court that plaintiffs had perfected their title on account of adverse possession. The plea which was taken up by the plaintiffs was self destructive. An owner cannot take the plea of adverse possession against himself. The case of the plaintiffs throughout was that they have purchased this property from Shri Mehma Singh. Even otherwise, from the record, it is not proved that they were in possession of the property in a hostile manner under Mehma Singh or his heirs. Rather the entry of 1971-72, shows that plaintiffs were in possession in the capacity of Gair Marusi Billa Lagan Bawaja Bai.” In Bhim Singh and others Versus Zile Singh and others, 2006 (3) P.L.R. 159, this Court again held as under:- “11. Under Article 64 of the Limitation Act, as suit for possession of immovable property by a plaintiff, who while in possession of the property had been dispossessed from such possession, when such suit is based on previous possession and not based on title, can be filed within 12 years from the date of R.S.A.No.3101 of 1997 (O&M) -11- .... dispossession. Under Article 65 of the Limitation Act, a suit for possession of immovable property or any interest therein, based on title, canbe filed by a person claiming title within 12 years. The limitation under this Article commences from the date when the possession of the defendant becomes adverse to the plaintiff. In these circumstances, it is apparent that to contest a suit for possession, filed by a person on the basis of his title, a plea of adverse possession can be taken by a defendant who is in hostile, continuous and open possession, to the knowledge of the true owner, if such a person has remained in possession for a period of 12 years. It, thus, naturally has to be inferred that plea of adverse possession is a defence available only to a defendant. This conclusion of mine is further strengthened from the language used in Article 65, wherein in column 3 it has been specifically mentioned “when the possession of the defendant becomes adverse to the plaintiff”. Thus, a perusal of the aforesaid article 65 shows that the plea is available only to a defendant against a plaintiff. In these circumstances, natural a inference must follow that when such a plea of adverse possession is only available to a defendant, then no declaration can be sought by a plaintiff with regard to his ownership on the basis of an adverse possession. 12. I am supported by a judgment of Delhi High Court in (1993-3) 105 Punjab Law Reporter (Delhi Section) 70 – Prem R.S.A.No.3101 of 1997 (O&M) -12- .... Nath Wadhawan v. Inder Rai Wadhawan. 13. The following observations made in the Prem Nath Wadhawan's case (supra) may be noticed: 'I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have also perused the record. I do not find any merit in the contention of the learned counsel for the plaintiff that the plaintiff has become absolute owner of the suit property by virtue of adverse possession as the plea of adverse possession can be raised in defence in a suit for recovery of possession but the relief of declaration that the plaintiff has become absolute owner, cannot be granted on the basis of adverse possession.'” In Karnataka Board of Wakf Versus Government of India and Ors., 2004(2) R.C.R. (Civil) 702 (S.C.), the Apex Court observed in paragraph 11 of the judgment, as follows:- “11. In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non- use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well settled principle that a party claiming adverse possession R.S.A.No.3101 of 1997 (O&M) -13- .... must prove that his possession is `nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must state with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See : S.M.Karim v. Bibi Sakinal AIR 1964 SC 1254, Parsinnnhi v. Sukhi, `1993(3) RRR 681 (SC): (1993) 4 SCC 375 and D.N.Venkatarayappa v. State of Karnataka (1997) 7 SCC 567). Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusive to the actual owner are the most important factors that are to be account 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, © 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 true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Dr. Mahesh Chand Sharma v. Raj Kumari R.S.A.No.3101 of 1997 (O&M) -14- .... Sharma, 1996(1) RRR 387 (SC) : (1996) 8 SCC 128).” In T.Anjanappa and Ors.Versus Somalingappa and Anr., 2007 (1) R.C.R. (Civil) 19 (S.C.), their Lordships of the Supreme Court held as under:- “22. It is well recognized proposition of law that mere possession however long does not necessarily means that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly and impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interest in the property, though it is not necessary that there should be evidence of the adverse possession actually informing the real owner of the former's hostile action.” In Hemaji Waghaji Jat Versus Bhikabhai Khengarbhai Harijan & Others, 2008(4) R.C.R. (Civil) 401, their Lordships of the Apex Court, after analysing the law on the plea of adverse possession, succinctly laid down the following facts which are necessary to be pleaded and proved when the plea of adverse possession is raised:- R.S.A.No.3101 of 1997 (O&M) -15- .... (1)A party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precario”, that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. 2004(2) RCR (Civil) 702 (SC) and AIR 1934 PC 23 relied. (2) Possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found in possession of the properties it is presumed to be one the basis of joint title. As between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to be knowledge of the other so as to constitute ouster. AIR 1957 SC 314 relied. (3) There must be evidence when the possession became adverse so that the starting point of limitation against the party affected can be found. AIR 1964 SC 1254 relied. (4) Having come into possession under colour of title from original grantee, if the appellant intends to plead adverse possession as against the State, he must disclaim his title and plead his hostile claim to the knowledge of the State and that the State had not taken any action thereon within the R.S.A.No.3101 of 1997 (O&M) -16- .... prescribed period. Thereby, the appellant's possession would become adverse. 1995(6) SCC 309 relied. (5) Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. 2004(2) RCR (Civil) 702 (SC) relied. (6) 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. (7) In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession became adverse.” To the similar effect are the observations of the Supreme Court in M.Durai Versus Mathu and others, 2007(1) R.C.R. (Civil) 889 (S.C.); Binapani Paul Versus Pratima Ghosh & Ors., 2007(2) R.C.R. (Civil) 801 (S.C.) and of this Court in Inder Singh Kataria Versus Kedar Nath, 2007 (4) R.C.R. (Civil) (P&H) and Communist Party, Ropar & others Versus Sant Saran Bhalla (Dead) through his L.Rs and others, 2007(3) R.C.R. (Civil) 361. R.S.A.No.3101 of 1997 (O&M) -17- .... In the light of the above discussion and the law laid down in the above mentioned judgments, the questions of law which arise for determination in this appeal are as under:- 1. Whether the plea