IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RFA 194 of 1998. Judgment Reserved on 13.11.2009. Date of decision January 7, 2010. Smt. Shakuntla Devi ….Appellant. Versus Smt. Sumitra & others ….Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes. For the appellant Mr. Bhupender Gupta, Senior Advocate with Mr. Lovnesh Kanwar, Advocate. For the respondents Mr. K.D.Sood, Advocate. Dev Darshan Sud, J. This is the plaintiff’s appeal against the judgment and decree of the learned District Judge, dismissing her suit for possession of the suit property holding the respondents-defendants have become owners by way of adverse possession. The plaintiff instituted the suit on the basis of title claiming possession by pleading that old khasra No. 118, situated in main bazaar Paonta Sahib (now khasra No. 59) was owned and possessed by Shri Laxmi Chand, predecessor in interest of the defendants. It 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - was sold to the predecessor in interest of the appellant plaintiff (Sh. Duni Chand) by a registered sale deed Ex. P-1 on 19.5.1927. Shri Laxmi Chand is pleaded to have shifted to Churpur, in Tehsil Dehradun to start his life afresh there and establish a new business. Since he did not succeed, he returned to Paonta Sahib after 5-6 years. The relations between Duni Chand and Laxmi Chand were very cordial and close and accordingly Sh. Duni Chand allowed Sh. Laxmi Chand to occupy 12 biswas of land in Khasra No. 59 on which some construction already existed so that he could tide over his financial crises. It was pleaded that Laxmi Chand had been allowed to occupy the property as a licencee. After the death of Laxmi Chand Shri Shiv Prasad, who was his successor in interest continued to be in occupation. However, in the year 1993, late Shri Shiv Prasad started interfering in the ownership of the appellant and a notice dated 29.3.1996 terminating the licence was issued. Plaintiff submits that the property has come to her share by virtue of a compromise entered into on 4.4.1994 in Civil Suit No. 85/1 of 1989 between the heirs of her late mother who succeeded to the property. - 3 - The defendants denied the ownership of the plaintiff. The specific stand taken was that the suit property was never sold to Sh. Duni Chand by late Lala Laxmi Chand. The sale deed was said to be fictitious, baseless and sham. Another objection taken was that Laxmi Chand was not competent to sell the suit property as it was Hindu undivided, ancestral and coparcenery property. The defendants plead that the sale was not for legal necessity and as such even if the sale is established, it was against law. It was denied that the possession of the property was delivered to late Shri Duni Chand. The fact of Shri Laxmi Chand having left Paonta Sahib to settle at Churpur is denied. The defendants claim exclusive possession and ownership to the property from the time of their ancestors. These two pleas have been advanced by the defendants in paras 1 and 3 of their written statement and they are being noticed here as they would have a material bearing on the respective pleas of the parties. The defendants claim open, long, uninterrupted, hostile possession and ownership on the suit property since the time of their fore fathers. The defendants also plead that in 1994, they had raised construction of three rooms by spending an amount of Rs.30,000/- to Rs.35,000/-. - 4 - Modifications were made in the shop partitioning it into two and increasing its width and raising its height in the year 1992 by spending about Rs.30,000/- to Rs.40,000/-, constructed two latrines, one bath room in the year 1985 by spending an amount of Rs.10,000/- and constructed one room in December, 1975 by spending Rs.10,000/-. The defendants also claim that in the years 1980 and 1981, they re- plastered the entire building and this was within the knowledge of the plaintiff and her predecessors-in-interest who allowed all these activities without protest. It is pleaded that the electric meters are in the name of the defendants since the year 1975 and earlier these were in the name of late Shri Shiv Prasad since the year 1952-53. The water meter is also pleaded to be in the name of the father of the defendants 2 and 3 since many decades. The defendants plead that they have been paying house tax since the year 1984. On the pleadings of the parties, the learned trial Court settled five issues. The first issue was with respect to the ownership of the plaintiff, second as to whether the predecessors in interest of the defendants were inducted as licencees in the suit property by the plaintiff and the said licence was revoked, - 5 - third whether the defendants have become owners of the disputed property by adverse possession and the fourth issue was whether the defendants are co sharers in the suit property along with the plaintiff. On the first issue, the learned trial Court on the basis of sale deed Ex.P-1, (translation Ex. P-2) dated 19.5.1927 holds that the entire disputed property was sold by Sh. Laxmi Chand to Sh. Duni Chand and after his death, his heirs were the rightful owners in possession of the suit property. However, with regard to actual possession, out of the total land of khasra No. 55, land measuring 8 biswas along with 3 shops standing thereon was held to be in possession of the plaintiff along with other heirs of Duni Chand, whereas remaining land measuring 12 biswas along with shop and houses standing thereon as depicted in the site plan Ex.P-3 was held to be in possession of the defendants. The plea of licence has been negatived. The Court holds that the plaintiff has not been able to establish that any licence was created in favour of the defendants. On issue No. 3 which was crucial, requiring determination of the nature of possession of the defendants, the Court holds that the defendants have been able to establish that they are in exclusive possession for about 70 years and this - 6 - is sufficient proof of hostile animus. On issue No. 4, the Court holds that this issue was settled inadvertently, as it was never the case of the defendants that they were co owners of the disputed property with the plaintiff. The suit of the plaintiff was, therefore, dismissed. In appeal, learned counsel for the appellant assails the findings of the trial Court on adverse possession. Learned counsel appearing for the defendants submits that the evidence on record was itself sufficient to have established the ingredients of adverse possession as it was an established fact on record that the predecessor in interest of the defendants, that is late Shri Laxmi Chand was in possession of the suit premises openly, peacefully, as of right and to the knowledge of the plaintiffs, to which she and the other co owners did not object. They also allowed/ permitted building activity etc. without protest. I have heard the learned counsel for the parties and gone through the record. The findings of the learned District Judge on the question of adverse possession are tentative and tenuous. While rightly holding that the plaintiff is the owner of the suit premises, such title having been established - 7 - beyond any shadow of doubt, the defendants and their predecessors in interest having remained in possession on part of the suit premises, the learned Court is wrong when it holds that the defendants are in adverse possession. The defendants contest the suit and challenge (a) the title of the plaintiff, (b) the factum of sale (c) the authority of Sh.Laxmi Chand to have effected the sale, if any, as the property was coparcenery property and he had sold it without any legal necessity in case sale was established and (d) adverse possession. On the first three pleas raised by the defendants, there is no evidence on record. Exts. P-1 and P-2 certified copy and translation of the registered sale deed clearly establish the title and possession of Shri Duni Chand to the suit property. The other events subsequent thereto, that is Lala Laxmi Chand entering into possession of the property as a licencee is shrouded in uncertain circumstances. There is no direct evidence on record to establish whether a licence within the meaning of Section 52 of the (Indian) Eastments Act, 1882 was created and subsequently after his death in or about the year 1951, occupation of the property by his son Shiv Prashad and subsequently after his death by his widow and - 8 - sons was also pursuant to a licence express or implied. In Associated Hotels of India Ltd. v. R.N.Kapoor AIR 1959 SC 1262, the Court held:- “27. There is a marked distinction between a lease and a licence. S. 105 of the Transfer of Property Act defines a lease of immoveable property as a transfer of a right to enjoy such property made for a certain time in consideration for a price paid or promised. Under S. 108 of the said Act, the lessee is entitled to be put in possession of the property. A lease is therefore a transfer of an interest in land. The interest transferred is called the leasehold interest. The lessor parts with his right to enjoy the property during the term of the lease, and it follows from it that the lessee gets that right to the exclusion of the lessor. Whereas S. 52 of the Indian Easements Act defines a licence thus: "Where one person grants to another, or to a definite number of other persons, a right to do or continue to do, in or upon the immoveable property of the grantor, something which - 9 - would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence." Under the aforesaid section, if a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a licence. The legal possession, therefore, continues to be with the owner of the property, but the licensee is permitted to make use of the premises for a particular purpose. But for the permission, his occupation would be unlawful. It does not create in his favour any estate or interest in the property. There is, therefore, clear distinction between the two concepts. The dividing line is clear though sometimes it becomes very thin or even blurred….” Applying the same principles, in Board of Revenue etc. etc., v. A.M.Ansari etc., AIR 1976 SC 1813, the Supreme Court reiterated these principles holding:- - 10 - “10…..A licence does not create an interest in the property to which it relates while a lease does. There is in other words transfer of a right to enjoy the property in case of a lease. As to whether a particular transaction creates a lease or a licence is always a question of intention of the parties which is to be inferred from the circumstances of each case. For the purpose of deciding whether a particular grant amounts to a lease or a licence, it is essential, therefore, to look to the substance and essence of the agreement and not to its form. We are fortified in this view by the decisions of this Court in Associated Hotels of India Ltd. v. R.N.Kapoor, AIR 1959 SC 1262..” Precedents need not be multiplied on this issue. Applying the ratio of these judgments to the facts of the present case, there is no evidence on record to show that intention of the parties was expressed in writing or otherwise to determine the true nature of possession of late Shri Laxmi Chand and his successor in interest. In evidence PW-1 says that she had been informed regarding this fact by her father and mother. So far as the - 11 - defendants are concerned, there stand is one of total denial and setting up a title in themselves. Coming to the question of adverse possession, the evidence on this issue may be noticed. The defendants had pleaded that their predecessors in interest had been coming in possession of the suit property openly, peacefully, as of right, without any interruption or hindrance from the plaintiff or her predecessor in interest, since the time of their fore fathers. The defendants pleaded improvements in the nature of construction, reconstruction, payment of municipal taxes, installation electricity and water meters in the name of their predecessors in interest or in their own name. There is no documentary evidence on record to establish these facts. No sanctioned plan(s) by the Municipal Committee, bills, vouchers evidencing the expenditure incurred on construction/ reconstruction or improvements to the property, receipts evidencing payment of house tax, property tax, documents evidencing or showing that the defendants or their predecessors in interest had applied for electricity / water connections etc. have been produced on record. There is no explanation as to why this evidence has been - 12 - withheld. The oral testimony of DW-4 Jinda Hasan and DW-5 Rattan Lal may be considered. DW-4 has stated that in 1964 he was working as a Raj Mistry in Paonta Sahib. He says that in 1965 he built three rooms on the asking of Anil Kumar, grand son of Shri Laxmi Chand. DW-5 Rattan Lal states that the rooms on the suit property have been constructed 30-35 years ago and he always considered late Shri Shiv Prasad as the owner of this property. This can hardly be considered to be sufficient evidence to establish adverse possession. Three ingredients, namely nec vi nec clam and nec precario have to be established to prove adverse possession. In State of Punjab v. Brigadier Sukhjit Singh , 1994 (2) RCR, 66, the Supreme Court holds: “13……The mere fact that the licence is of long duration dating back to the year 1925, as suggested by some of the plaintiff’s witnesses, or of 1947 as said by the witnesses of the State, is of no consequence. Permissive possession, however long, cannot by itself be said to have become hostile by a “long lapse of time”……” (Emphasis supplied). - 13 - In Thakur Kishan Singh v. Arvind Kumar, 1994 (6) SCC 591, the Supreme Court holds: “5. … … … … … … The possession thus initially being permissive, the burden was heavy on the appellant to establish that it became adverse. A possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession...” (Emphasis supplied) In Pt. Shamboo Nath Tikoo and others v. S.Gian Singh and others 1995 Supp (3) SCC 266 the Court holds: “32. The proposition of law that permissive possession cannot be converted into an adverse possession unless it is proved that the person in possession asserted an adverse title to the property to the knowledge of the true owners for a period of 12 years or more, cannot be - 14 - disputed, when it is so held by the three Judge Bench of this Court in State Bank of Travancore v. Aravindan Kunju Paniker, AIR 1971 SC 996, 998……” This principle has been first considered and explained in Gaya Parshad Dikshit v. Dr. Nirmal Chander and another, AIR 1984 SC 930:- “1…..we find ourselves wholly in agreement with the view taken by the High Court that mere termination of the licence of a licensee does not enable the licensee to claim adverse possession, unless and until he sets up a title hostile to that of the licensor after termination of his licence. It is not merely unauthorized possession on termination of his licence that enables the licensee to claim title by adverse possession but there must be some overt act on the part of the licensee to show that he is claiming adverse title. It is possible that the licensor may not file an action for the purpose of recovering possession of the premises from the licensee after terminating his licence but that by itself cannot enable the licensee to claim title by adverse - 15 - possession. There must be some overt act on the part of the licensee indicating assertion of hostile title. Mere continuance of unauthorized possession even for a period of more than 12 years is not enough. Here in the present case there is nothing to show that at any time after termination of his licence by Dr. Rama Shanker or by the first respondent the appellant asserted hostile title in himself. The High Court was, therefore, right in taking the view that the appellant had not established any title by adverse possession and in that view of the matter, the suit of the first respondent for recovery of possession of the premises from the appellant was not barred under Article 65 which is the only Article of the Limitation Act, 1963 applicable in the present case. We accordingly confirm the judgment of the High Court and dismiss the appeal.” (Emphasis supplied) In Karnataka Board of Wakf v. government of India and others, (2004) 10 SCC 779, the Supreme Court succinctly summed up the law on adverse possession holding: - 16 - “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 true owner. It is a well settled principle that 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. (See : S M Karim v. Bibi Sakinal AIR 1964 SC 1254, Parsinni v. Sukhi (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 exclusion to the actual owner are - 17 - the most important factors that are to be accounted 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, (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. 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 Sharma (1996) 8 SCC 128). 12. A plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. (See: S M Karim v. Bibi Sakinal AIR 1964 SC 1254). In P Periasami v. P Periathambi (1995) 6 SCC 523 this Court ruled that - "Whenever the plea of adverse possession is projected, inherent in the - 18 - plea is that someone else was the owner of the property." The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639 that is similar to the case in hand, this Court held: "As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of land lawfully under the - 19 - agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant." One other judgment of the Supreme Court in T. Anjanappa and others v. Somalingappa and another, (2006) 7 SCC 570, may be considered. The Court rules: “12. The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed - 20 - against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property. 13. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. “24. It is a matter of fundamental principle of law that where possession can be referred to a lawful title, it will not be considered to be adverse. It is on the basis of this principle that it has been laid down that since the possession of one co-owner can be referred to his status as co-owner, it cannot be considered adverse to other co-owner. (See Vidya Devi v. Prem Prakash and Ors. (1995 (4) SCC 496).” These principles have been reiterated by the Supreme Court in P.T.Munichikkanna Reddy and Others v. Revamma and Others, (2007) 6 SCC 59 and Des Raj & others vs. Bhagat Ram (Dead) by LRs. and Others, (2007) 9 SCC 641. I need not multiply precedent on the point. All that I need say is that the - 21 - defendants have been unable to establish their case for adverse possession. A reading of the evidence of the defendants only establishes that they were in possession which at best can be termed as permissive possession. Some improvements may have been made on the property which fact have not been corroborated by documentary evidence in the nature of sanctioned municipal plans, sanction orders, house tax receipts, expenditure vouchers, evidence of the expenditure for construction etc. There is nothing on record to show that acts consistent with the ownership of the defendants openly, denying the title of the plaintiff have been proved on record of the case. The defendants