IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Regular Second Appeal No. 142 of 1998. Reserved on 15.12.2008. Decided on: 23.12.2008. __________________________________________________ Sumant Gautam … Appellant. Versus Devi Saran … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Ajay Kumar, Advocate. For Respondent : Mr. Romesh Verma, Advocate. ___________________________________________________________ Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree passed by the learned District Judge, Kinnaur Civil Division at Rampur Bushahr in Civil Appeal No. 118 of 1996 dated 12.12.1997. Brief facts necessary for the adjudication of this regular second appeal are that the respondent-plaintiff (hereinafter referred to as the plaintiff for convenience sake) had filed a civil suit in the Court of learned Sub Judge, Rampur Bushahr for possession of the land measuring 0-03-06 hectares (0-8 bighas) comprised in Khasra No. 28, Khata Khatoni No. 75/198 situated in Chak Kacheree, 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 Tehsil Kumarsain, District Shimla, H.P. The plaintiff had claimed to be owner of this land. However, in the recent settlement operation, this land had been recorded in possession of the defendant. The defendant started disturbing plaintiff’s possession in the month of February 1993. The appellant-defendant (hereinafter referred to as the defendant for convenience sake) contested the suit. The case of the defendant was that the land in dispute belonged to him and in the alternative, the defendant’s plea is that he has acquired title over the suit land by way of adverse possession. The trial Court dismissed the suit on 4.9.1996. The plaintiff preferred an appeal before the learned District Judge, Kinnaur. The learned District Judge, Kinnaur allowed the appeal on 12.12.1997. This regular second appeal has been filed against the judgment and decree dated 12.12.1997. The regular second appeal was admitted on the following substantial questions of law: 1. Where a person continues to be in exclusive possession of land always treating it as his own and the alleged true owner does not know that the property occupied by the other belongs to him but during revenue settlement the mistake shared by both parties is discovered, will it give a cause of action to the alleged owner to claim possession? 3. What are the characteristics of adverse possession where both parties are under an honest mistake as to ownership? 3 4. What is the effect of finding of the Appellate Court if there is glaring discrepancy in the pleadings and evidence adduced by the plaintiff? 5. Whether the learned District Judge below has discarded and ignored the relevant and material evidence and has based his decision on immaterial and irrelevant evidence and has also grossly misread the evidence leading to palpably erroneous findings and if so to what effect? 6. Whether in the facts and circumstances of the case, the decision of the learned District Judge is based upon a complete mis-conception on a point of law? 7. Whether the findings of the District Judge below are sustainable in the face of the evidence and legal position as applicable to the facts of the case? 8. What is the legal effect on the judgment of the learned District Judge below has failed to formulate proper points for determination? Mr. Ajay Kumar had strenuously argued that the judgment and decree passed by the learned First Appellate Court is not sustainable. He then contended that his client has established his title based on adverse possession. Mr. Romesh Verma had supported the judgment and decree dated 12.12.1997 passed by the learned District Judge, Kinnaur. I have heard the parties and perused the record carefully. The substantial questions of law framed being inter- connected and inter-linked are taken up together for hearing. 4 In the Misal Haquiat Ext. PW-1/A, the plaintiff and other co- owners’ names find mention in the column of ownership of the suit land and in the column of possession, the name of defendant has been recorded. In the copy of Jamabandi for the year 1981-1982, the suit land was owned by plaintiff and his sisters, namely, Smt. Rupi and Smt. Jobnu. The defendant has also relied upon copy of another Misal Haquiat in which the suit land comprised in Khasra No. 28 was earlier part of Khasra No. 52 min. In the column of rent, there is no mention about payment of rent by the defendant. The First Appellate Court had come to just conclusion that the entry in column of possession qua the suit land came into being in favour of the defendant during the settlement proceedings. The defendant had admitted in his cross-examination categorically that he came to know only during the settlement operation that the suit land formed part of the land owned by the plaintiff. Thus, the defendant himself was not aware about the true nature of his possession over the suit land. The defendant had to prove that he was in possession of the suit land for 12 years and this fact was in the knowledge of the true owner. In the present case since the defendant himself was not aware till the settlement proceedings that the suit land belonged to the plaintiff, he could not plead possession adverse to the true owner. The defendant has also not pleaded the date on which his possession over the suit land became hostile. He had also not denied the title of the plaintiff. The defendant has failed to prove that his possession was hostile, open, un-interrupted, continuous and peaceful. He has come to know about the nature of his 5 possession during the settlement proceedings in the year 1992- 1993. Their Lordships of the Hon’ble Supreme Court in Parsinni (Dead) by LRs and others versus Sukhi and others, (1993) 4 SCC 375 have reiterated that the possession must be peaceful, open and continuous. The burden to prove adverse possession is on the party claiming to be in adverse possession. Their Lordships have held as under: “The appellants claimed adverse possession. The burden undoubtedly lies on them to plead and prove that they remained in possession in their own right adverse to the respondents. In fact, they have pleaded and succeeded and the trial court accepted the plea finding thus: "The defendants 1 to 5 were accepted as owners to the extent of 1/3rd share in the estate of Wazira and they continued to hold their shares as such owners till the present day. There is absolutely no material on record to show that the plaintiffs were the owners or shared with the ownership of defendants 1 to 5. The oral deposition of Surjan Singh carried little weight, evidence is contradicted by Mahla Singh, DW 1 who had an interest in the suit land to the same extent as the plaintiffs.... Even if it be assumed that the ownership of the daughters of Wazira was valid till their marriages and even then the ownership of both Parsinni and Chinto or her heirs continued till the present day and on their marriage the rights of the daughters, if were extinguished, they still continued to hold as owners of the suit land and after as many as 30 years they certainly have become full owners by prescription. 6 “The entries Exs. P-3, P-4 are sufficient to show that the plaintiffs were excluded from the right of ownership by the daughters and since no steps were taken for a number of years the right is time- barred." The District Judge proceeded on the premise that the respondents continued as co- owners and that, therefore, they were not excluded. The possession of the appellants were not adverse to the right of the respondents. We find it difficult to accept the said finding. Female heirs in pre-existing law were not co-owners. Possession is prima facie evidence of title. Party claiming adverse possession must prove that his possession must be 'nec vi, nec clam, nec precario" i.e. 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. When the appellants claimed title to the suit lands it is sufficient for them to show that their possession is overt and without any attempt at concealment so that the respondents against whom time is running, ought, if to exercise due vigilance to be aware of what is happening. The possession of the appellants was adverse to the respondents inasmuch as the respondents (sic appellants) ever since the marriage of the first appellant and her sister Chinto continued to remain in possession and enjoyment of the property in derogation of the right, title and interest hitherto held by the respondents. When they openly and to the knowledge of the respondents continuously remained in possession and enjoyment and the entries in the revenue records establish that their possession and enjoyment is as owners, the 7 consent of the respondents initially given to remain in possession till their marriage or death whichever is earlier does not prevent possession being adverse after their marriage. Without any let or hindrance they remained in possession and enjoyment excluding the respondents from sharing the usufruct from those lands. The test is whether the appellants are able to show that they held lands for themselves and if they did so the mere fact that there was acquiescence or consent at the inception on the part of the respondents make no difference. Since possession and enjoyment of the first appellant and her sister Chinto was to the exclusion of the respondent- brothers, for well over 30 years it is proved that the appellants were in possession and enjoyment openly and continuously in assertion of their right as owners. The entries in the revenue recorded continuously for 30 years would corroborate their plea of adverse possession and militates against the claim of the title of the respondents. The plea that the appellants were never in possession and enjoyment is belied by the entries in the revenue records. The suit was filed in 1963 asserting their rights as owners for the first time by which date the appellants have perfected their titles by prescription. The High court did not advert to this aspect of the matter. Therefore, we have no hesitation to hold that the appellants have perfected their title to the 53 kanals 12 marlas by prescription and the suit is barred by limitation under Article 65 of the Schedule to the Act. The appeal is accordingly allowed, the decree of the High court and that of the first appellate court are set aside and that of the trial court is restored. No costs.” 8 The Hon’ble Supreme Court in Annasaheb Bapusaheb Patil and others versus Balwant alias Balasaheb Babusaheb Patil (Dead) by LRs and heirs and others, (1995) 2 SCC 543 has held that the possession must be shown hostile to the real owner and amounted to denial of his title to the property claimed. Their Lordships have held as under “Article 65 of the Schedule to the Limitation Act, 1963 prescribes that for possession of immovable property or any interest therein based on title, the limitation of 12 years begins to run from the date of the defendant's interest becomes adverse to the plaintiff. Adverse possession means a hostile assertion i.e. a possession which is expressly or impliedly in denial of title of the true owner. Under Article 65, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another does not by mere 9 denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.” Their Lordships of the Hon’ble Supreme Court in P. Periasami (Dead) by LRs versus P. Periathambi and others, (1995) 6 SCC 523 that plea of adverse possession implies that someone else is the owner of the property. Their Lordships of the Hon’ble Supreme Court in Dr. Mahesh Chand Sharma versus Raj Kumari Sharma (Smt.) and others, (1996) 8 SCC 128 have held that plea of adverse possession is a mixed question of law and fact and party raising the plea must clearly state when adverse possession commenced and nature of possession. Their Lordships have held as under: The plea of limitation raised by the defendant-appellant cannot be upheld for more than one reason. The reasons are the following : (a) Among the issues framed in the suit. Issue No. 5 pertains to the plea of limitation put forward by Defendants Nos. 2 to 5. The issue runs thus : "Whether the suit is within time ?" On this issue, the learned single Judge (Trial Judge)recorded a finding in favour of the plaintiff. He found the suit within limitation. The decision on the above issue was not contested by the parties before the Division Bench. The Division Bench has expressly recorded that ' the decisions on the above issues (Issues 1, 2, 3, 4, 5, and 6) are not contested by the parties in this appeal and, therefore, the findings of the learned single Judge 10 are hereby affirmed". Once this is so, it is not open to the third defendant - appellant in these appeals to seek to re-agitate the said plea. We cannot allow him to do so. A party who abandons a particular plea at a particular stage be allowed to re-agitate in appeal. (b) The plea of limitation raised in Para (8) of the defendant's written statement was in the following words:" 8. It is denied that the suit of the plaintiff is within limitation. The answering defendants and the predecessor-in-interest, Rajender Nath, have been in any case in adverse possession of the property in suit since 1954. " It is on the basis of the said plea that Issue No. 5 aforementioned was framed, Now, let us examine what does the said plea signify? The plea has to be understood in the context of other pleas raised in their written statements. The defendant's case was that the 1942 Will is not true and that after the death of Ram Nath, first defendant came into possession of all the properties including the Doctor's Lane house and was in adverse possession thereof since 1954. The plea of limitation was not based upon any other ground or fact. Once it is held that (a) the 1942 Will is true, and (b) the remainder bequest vested in the first defendant on the death of Ram Nath (as held by us hereinabove accepting the plea of the appellant) the bottom gets knocked out of this plea. It is also necessary to point out that there is no plea in the written statement that the adverse possession of the first defendant commenced under and by virtue of the 1955 settlement. There is also no plea that the adverse possession of the defendant commenced at any later point of time. It 11 is well settled that the plea of adverse possession is not a pure question of law but a mixed question of fact and law. It is also well established that the party pleading adverse possession must state with sufficient clarity as to when his adverse possession commenced and the nature of its possession. In this case, the defendant's plea is that the adverse possession of the predecessor- in-interest, i.e., the first defendant, commenced in 1954. Once that plea falls to ground, as held hereinabove, there is no alternate plea. To repeat, the defendants have not suggested that their adverse possession commenced at any later point of time.” Their Lordships of the Hon’ble Supreme Court in D.N. Venkatarayappa and another versus State of Karnataka and others, (1997) 7 SCC 567 that animus on the part of the person claiming adverse possession is necessary ingredient of adverse possession. Their Lordships have held as under: “The petitioners, admittedly, had purchased the property in the years 1962-63 and 1963-64 from the original allottees. The Government have allotted those lands as per Saguvali Chit containing prohibition of alienation of the land. Subsequently, the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 was enacted totally prohibiting the alienation up to a particular period. The proceedings were initiated against the petitioners for ejectment under the said Act. All the authorities have concurrently held that the alienation in favour of the petitioners was in violation of the above Rules and the said Act and hence the sales are voidable. When the case had 12 come up before this Court, this Court while upholding the constitutionality of the Act directed the authorities to go into the question of adverse possession raised by the petitioners. The learned single Judge has extracted the pleadings on adverse possession of the petitioners. Therein, the High Court had pointed out that there is no express plea of adverse possession except stating that after the purchase of the lands made by them, they remained in possession and enjoyment of the lands. What requires to be pleaded and proved is that the purchaser disclaimed his title under which he came into possession, set up adverse possession with necessary animus of asserting open and hostile title to the knowledge of the true owner and the later allowed the former, without any let or hindrance, to remain in possession and enjoyment of the property adverse to the interest of the true owner until the expiry of the prescribed period. The classical requirement of adverse possession is that it should be nec vi, clam, aut precario nec vi, nec clam, nec precario. After considering the entire case law in that behalf, the learned single Judge has held thus : "The contention raised by the petitioners that they have perfected their title in respect of the lands in question by adverse possession, has to fail on two counts. Firstly, the crucial facts, which constitute adverse possession have not been pleaded. The pleadings extracted above, in my view, will not constitute the crucial facts necessary to claim title by adverse possession. It is not stated by the petitioners in their pleadings that the 13 petitioners at any point of time claimed or asserted their title hostile or adverse to the title of the original grantees/their vendors. In my view, mere uninterrupted and continuous possession without the animus to continue in possession hostile to the rights of the real owner will not constitute adverse possession in law. In case of Lakshmi Reddy (supra) relied upon by Sri Narayana Rao at Paragraph 7 of the judgment, the Supreme Court, following the decision of the Privy Council in Secy. of State for India v. Debendra Lal Khan, AIR 1934 PC 23, has observed that the ordinary classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario and the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. In the case of State of West Bengal v. Dalhousie Institute Society, AIR 1970 SC 1778, the Supreme Court, on the basis of the materials on record, which were referred to by the High Court, took the view that in the said case, the respondent had established his title to the site in question by adverse possession. Further, the said decision proceeds on the basis that the grant made by the Government was invalid in law. That is not the position in the present case. The alienation in question was only voidable. The petitioners came into possession of the lands in question by virtue of the sale deeds which are only 14 voidable in law. Therefore, they have come into possession by virtue of the derivative title as observed by the Supreme Court in the case of Chandevarappa (supra). Further, in the case of Kshitish Chandra (supra), the observation made by the Supreme Court at paragraph 8 of the judgment relied upon by Sri Narayana Rao in support of his contention that the only requirement of law to claim title by adverse possession is that the possession must be open and without any attempt at concealment and it is not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner concerned, I am of the view that the said observation must be understood with reference to the observations made in Paragraph-7 of the judgment. At paragraph- 7 of the judgment, the Supreme Court has observed thus: "7.............. For instance, one of the most important facts which clearly proved adverse possession was that the plaintiff had let out the land for cultivatory purposes and used it himself from time to time without any protest from the defendant. During the period of 45 years, no serious attempt was made by the municipality to evict the plaintiff knowing full well that he was asserting hostile title against the municipality in respect of the land." Further, this Court, in the case of Danappa Revappa Kolli v. Gurupadappa 15 Kallappa Pattana Shetti, ILR (1990) Karnataka 610, while referring to the decision of the Supreme Court in Kshitish Chandra's case (supra), relied upon by Sri Narayana Rao in support of the plea of adverse possession, has observed that apart from the actual and continuous possession which are among other ingredients of adverse possession, there should be necessary animus on the part of the person who intends to perfect his title by adverse possession. The observations made in the said decision reads thus : "5. ............. Apart from actual and continuous possession which are among other ingredients of adverse possession, there should be necessary animus on the part of the person who intends to perfect his title by adverse possession. A person who under the bona fide belief thinks that the property belongs to him and as such he has been in possession, such possession cannot at all be advese possession because it lacks necessary animus for perfecting title by adverse possession." Therefore, it is clear that one of the important ingredients to claim adverse possession is that the person who claims adverse possession must have set up title hostile to the title of the true owner. Therefore, I am of the view that none of the decisions relied upon by Sri Narayana Rao in support of the plea of adverse 16 possession set up by the petitioners, is of any assistance to the petitioners. Further, admittedly, there is not even a whisper in the evidence of the first petitioner with regard to the claim of adverse possession set up by the petitioners. It is not stated by the petitioners that they have been in continuous and uninterrupted possession of the lands in question. What is stated by the petitioners, in substance, is that they came into possession of the lands in question by virtue of the sale deeds executed by the original grantees. The Supreme Court, in paragraph 11 of