Punjab-Haryana High Court
Gurdip Singh vs Balwant Singh And Ors. on 28 September, 2004
Equivalent citations: (2004)138PLR791
Author: Hemant Gupta
Bench: Hemant Gupta
JUDGMENT Hemant Gupta, J.
1. The plaintiff is in second appeal aggrieved against the judgment and decree passed by the Courts below arising out of suit for declaration to the effect that the plaintiff has become owner in possession by way of adverse possession of land measuring 22 kanals 16 marlas.
2. It is pleaded case of the appellant that Waryam Singh, uncle.of the plaintiff, was owner in possession of the land in dispute, he died on 17.2.1978. The plaintiff claimed his estate on the basis of Will dated 13.2.1972. However, the plaintiff remained unsuccessful in mutation proceedings. The defendants filed the ejectment petition for the ejectment of the plaintiff wherein the plaintiff denied the ownership of the defendants in written statement dated 28.4.1978, Ex.P7. However, the said ejectment order was dismissed on 29.12.1978 on the ground that there exists no relationship of landlord and tenant between the parties.
3. The present suit has been filed on 27.7.1995 after more than 17 years of the dismissal of the suit filed by the defendant on the ground that the plaintiff has asserted hostile possession by way of written statement on 28.4.1978 and more than 12 years has since been passed but the defendants have not taken any steps for possession, therefore, the plaintiff has become owner by adverse possession. Both the courts have dismissed the suit of the plaintiff-appellant, interalia on the ground that the possession of the plaintiff was permissible as he has sought title in the property on the basis of WILL of Waryam Singh.
4. Before this Court, the learned counsel for the appellant has relied upon the judgments reported as Jai Singh v. Mehar Singh, (1995-3)111 P.L.R. 349, Bondar Singh and Ors. v. Nihal Singh, 2003(2) R.C.R. (Civil) 222 and Charan Dass and Ors. v. Rajinder Paul, (2003-1)133 P.L.R. 699 to contend that since the appellant has denied the title of the ownership in the earlier litigation and the period .of 12 years have been passed, the plaintiff has perfected his title by way of adverse possession. However, the said judgments are not applicable to the facts of the present case.
5. The learned counsel for the appellant has further contended that the plaintiff is admittedly in possession and, therefore, he is entitled to injunction restraining the defendants from taking forcible possession of the suit land.
6. The plaintiff has set up a WILL of Waryam Singh in his favour. He could not prove his right to succeed to the estate of Waryam Singh on the basis of WILL. He never admitted the defendants to be owner of the suit land and then set up title in himself. In fact, in the written statement dated 28.4.1978, the plaintiff has categorically denied that the defendants were owners of the land. One of the essential ingredients of successful plea of adverse possession is that the adverse possession should be open, continuous, hostile and to the knowledge of the true owner by asserting title in himself admitting ownership of other side.
7. In Jai Singh's case, a Single Bench of this Court found that the title of the appellant was denied earlier with a notice and rent was not paid for a period of 30-40 years. The plaintiff has perfected his title. In Charan Dass's case, a Single Bench of this Court decreed the suit for claiming declaration as owner, on the basis of adverse possession, as it was found that the plaintiffs are in continuous possession of the property in question since 1947 but denial of the title of the true owner will not debar the plaintiff to seek the declaration of ownership. However, the principles laid down in the said judgment are not applicable in the facts of the present case. In view of the judgments of the Hon'ble Supreme Court reported as D.N.Venkatarayappe and Anr. v. State of Karnataka and Ors., A.I.R. 1997 Supreme Court 2930, and Deva (Dead through LRs v. Sajjan Kumar (Dead) by LRs, (2003)7 Supreme Court Cases 481. The judgments were considered by this Court in R.S.A. No. 2671 of 1982 (Bakshish Singh v. Madan Lal and Ors., decided on 4.2.2004 and in R.S.A. No. 565 of 1984 (Jangir Singh etc. v. Sarup Singh and Ors., decided on 17.3.2004. It was held in Bakshish Singh's case (supra) to the following effect:-
"For successful plea of adverse possession, it was for the plaintiffs to set up the plea of adverse possession only after admitting the title than assert hostile possession. Reference may be made to the Supreme Court judgment in D.N. Venkatarayappa and Anr. v. State of Karnataka and Ors., A.I.R. 1997 Supreme Court 2930 wherein it was held to the following effect:-
"If the purchaser remained to be in possession in his own right de hors the title, necessarily he has to plead and prove the date from which he disclaimed the title and asserted possessory title as against the State and perfected his possession to the knowledge of the real owner viz. the State. Such a plea not having been taken or argued nor any evidence adduced in that regard, the plea of adverse possession against the state cannot be accepted at all at this stage."
Similarly in Deva (Dead through LRs v. Sajjan Kumar (Dead) by LRs, (2003)7 Supreme Court Cases 481, while considering the cases of lack of animus possidendi, the Hon'ble Supreme Court held that the land adverse to the title of true owner can be said to have started only when the defendant derived knowledge that his possession over the suit land has been held to be an act of encroachment. Para Nos. l 1 and 12 of the judgment reads as under:-
"11. The deposition extracted above, in any case, negatives the defendant's case of having prescribed title by adverse possession from the year 1940. The animus to hold the land adversely to the title of the true owner can be said to have started only when the defendant derived knowledge that his possession over the suit land had been alleged to be an act of encroachment - on the plaintiffs survey number -
12. The above quoted admission contained in the defendant's deposition, does not make out a case in his favour of having acquired title by adverse possession. Mere long possession of the defendant for a period of more than 12 years without intention to possession the suit land adversely to the title of the plaintiff and to the latter's knowledge cannot result in acquisition of title by the defendant to encroached the suit land."
In view of the above, since the defendants have not admitted the ownership of the plaintiffs, it cannot be the finding recorded by the Courts below that the defendants have perfected their title by adverse possession by tacking the possession of vendors is not sustainable. Neither the defendants nor their vendors have accepted the ownership of the plaintiffs in the property. Mere long possession is not sufficient to return the finding of adverse possession against the plaintiff."
8. The plaintiff having failed to prove his title is not entitled to injunction against the true owner. However, it is well settled that the true owner can take possession from an authorised occupant in establishing possession only in accordance with law.
No substantial question of law arises. Dismissed.