Himachal Pradesh High Court
Khazan Singh & Others vs Ravinder Singh & Others on 25 April, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Regular Second Appeal No.221 of 2003.
.
Judgment Reserved on: 10.04.2017
Date of decision: 25.04.2017
Khazan Singh & Others ....Appellants-Plaintiffs
Versus
Ravinder Singh & Others ....Respondents-Defendants
Coram
The Hon'ble Mr.Justice Sandeep Sharma,Judge.
Whether approved for reporting ?1 Yes.
For the Appellants: Mr.N.S. Chandel, Advocate.
For Respondents 1(a to e): Mr.Rajnish K.Lall, Advocate
vice Mr.Sanjeev Sood,
Advocate.
Sandeep Sharma,J.
This Regular Second Appeal filed under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 17.3.2003, passed by learned District Judge, Bilaspur in Civil Appeal No.96 of 1995, affirming the judgment and decree dated 4.5.1995 passed by learned Sub Judge Ist Class, Bilaspur, H.P., whereby suit for permanent prohibitory injunction having been filed by the plaintiffs-appellants (hereinafter referred to as the `plaintiff') 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes.
::: Downloaded on - 29/04/2017 23:57:21 :::HCHP 2has been dismissed and the counter claims filed by the defendants have partly been decreed.
.
2. Briefly stated facts, as emerged from the record, are that the plaintiff filed a suit for permanent prohibitory injunction against defendant No.1 in the Court below on the allegations that the he is owner in possession of land comprised in Khata No.7min, Khatauni No.7 min, Khasra No.87, measuring 0-12 bighas, situated in village Dali, Pargana and Tehsil Sadar, District Bilaspur, H.P.. It is averred by the plaintiff that defendants have no right, title or interest in the suit land as they have started interfering with his ownership and possession over the suit land w.e.f.
25.1.1991, for which act the plaintiff requested the defendants not to do so, but without any result. It is further averred by the plaintiff that the defendants threatened him to dispossess him from the suit land by raising construction over the same as defendant No.1 has claimed himself to be the owner of Khasra No.80, which is adjacent to the suit land. The plaintiff has prayed that the defendants be restrained from raising any construction or interfering with the possession of the plaintiff over the suit land by issuance of a decree of perpetual injunction, in the alternative, the plaintiff prayed for a decree of possession.
::: Downloaded on - 29/04/2017 23:57:21 :::HCHP 33. Defendants, by way of detailed written statement, refuted the aforesaid claim having been put forth .
on behalf of the plaintiff. Defendants No.1 and 2 admitted the ownership and possession of defendant No.1 over Khasra No.80, which has a common boundary with Khasra No.87 of the plaintiff. The defendants denied the allegation that they are interfering with the ownership and possession of the plaintiff over the suit land. It is averred that a portion of the suit land described in Khasra No.87/1, measuring 0-1 biswa, was under the possession of defendant No.1 and his predecessor-in-interest for the last more than 12 years, prior to the institution of the suit over which defendant No.1 and his predecessor-in-interest constructed water tank and a platform. It is further averred that there was a water tap in a portion of the house of defendant No.1 and his predecessor-
in-interest in Khasra No.87/1 over which they were having open, continuous, un-interrupted, peaceful and hostile possession and were also having acquired rights of ownership by way of adverse possession.
4. Defendants No.1 and 2 also filed counter claim, thereby claiming ownership of Khasra No.87/1, measuring 0- 1 biswa by adverse possession and the plaintiff was sought to be restrained from interfering with the ownership and possession of defendant No.1 over said Khasra number, by ::: Downloaded on - 29/04/2017 23:57:21 :::HCHP 4 issuance of a decree of perpetual injunction. Defendants No.1 and 2 also denied the allegation that they are/were .
interfering in any manner with the ownership and possession of the plaintiff over the rest of the area measuring 0-11 biswas of Khasra No.87 and prayed that the plaintiff is not entitled to any relief of permanent injunction as well as for possession. In this background, the defendants prayed for dismissal of the suit filed by the plaintiff.
5. Learned trial Court on the basis of pleadings of the parties framed the following issues:-
"1. Whether the plaintiff is owner in possession of the suit land comprising in Khasra No.87 land measuring 0-12 bighas as alleged in para No.1 of the plaint? OPP.
2. Whether the defendant No.1 has become full fledged owner of land measuring one biswas comprising in Khasra No.87/1 by way of adverse possession? OPD-1/counter Claimant.
3. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for? OPP.
4. Whether the plaintiff is entitled for the alternative relief of possession by way of dismantling the structure if raised during the pendency of the suit? OPP.
5. Whether no cause of action has arisen to the plaintiff OPD/counter claimant.
6. Relief."
6. Learned trial Court vide common judgment and decree dated 4.5.1995 dismissed the suit of the plaintiff for ::: Downloaded on - 29/04/2017 23:57:21 :::HCHP 5 permanent prohibitory injunction and partly decreed the counter claim filed by the defendants.
.
7. Feeling aggrieved and dissatisfied with the aforesaid judgment and decree passed by the learned trial Court, whereby suit filed by the plaintiff was dismissed and the counter claim filed by the defendants was partly decreed, plaintiff as well as defendants filed separate appeals bearing Civil Appeal Nos.75 of 1995 and 96 of 1995 respectively under Section 96 of the Code of Civil Procedure (for short `CPC') assailing therein common judgment and decree dated 4.5.1995 passed by learned Sub Judge Ist Class, Bilaspur.
8. Learned District Judge, Bilaspur vide a common judgment and decree dated 17.3.2003 allowed the appeal preferred by the defendants against the plaintiff by declaring defendant No.1 as owner of the suit land by way of adverse possession and dismissed the appeal preferred by the plaintiff against defendants No.1 and 2 and restrained him from interfering with the ownership and possession of defendant No.1 over the suit land by issuance of a decree of perpetual injunction against him.
9. In the aforesaid background the present appellants-plaintiffs filed this Regular Second Appeal before this Court, details whereof have already been given above.
::: Downloaded on - 29/04/2017 23:57:21 :::HCHP 610. This second appeal was admitted on the following substantial question of law:
.
"(1) Whether there exist sufficient material justifying the learned District Judge in substituting his findings to the contrary arrived at by the learned Trial Court to the effect that the possession of the respondent over the suit land in question is adverse and perfected in title to it.
2. Whether the learned Court below have overlooked or misread the evidence existing on the record of the case which if taken into consideration or perused in proper prospective would lead to finding r contrary to those returned by the Court."
11. Mr.N.S. Chandel, learned counsel appearing for the appellants-plaintiffs, vehemently argued that the impugned judgment passed by learned District Judge is not sustainable in the eye of law as the same is not based upon correct appreciation of evidence as well as law on the point and as such the same deserves to be quashed and set aside.
While referring to the impugned judgment passed by learned appellate Court, Mr.Chandel contended that bare perusal of the same suggests that evidence led on record by the respective parties has not been taken in to consideration in its right perspective, as a result of which erroneous findings have come on record to the detriment of plaintiff, who ::: Downloaded on - 29/04/2017 23:57:21 :::HCHP 7 successfully proved on record that he is owner in possession of the suit land. Mr.Chandel further stated that the finding .
returned by learned District Judge to the effect that defendant No.1 Sohan Lal acquired title of the suit land described as Khasra No.87/1, measuring 0-1 biswas by way of adverse possession is totally perverse and by no stretch of imagination could be returned that too on the basis of evidence led on record by the plaintiff. Mr.Chandel contended that there is no evidence available on record suggestive of the fact that the said defendant and his predecessor-in-interest had constructed their house more than 30 years back treating the land, underneath the house, under their ownership.
12. With a view to substantiate his aforesaid submissions, Mr.Chandel, learned counsel appearing for the appellants, invited the attention of this Court to the statement having been made by defendant; namely; Sohan Singh, wherein he has stated that construction over the suit land was raised on the presumption that the same belongs to them. Similarly, learned counsel invited the attention of this Court to the admission having been made by defendant that prior to 1991 i.e. when demarcation of land was given, it was not in their knowledge that ownership of land vests with the appellants. Mr.Chandel further contended that learned first ::: Downloaded on - 29/04/2017 23:57:21 :::HCHP 8 appellate Court below miserably failed to appreciate statement having been made by defendant, wherein he, while .
making statement, offered another land to the appellant in exchange of the suit land and as such by no stretch of imagination, findings, if any, could be returned by the learned first appellate Court to the effect that the defendant has become owner by way of adverse possession.
13. While concluding his arguments, Mr.Chandel made this Court to travel through the evidence led on record by the respective parties to demonstrate that there is no iota of evidence suggestive of the fact that the defendant was able to prove on record by way of cogent and convincing evidence that he had acquired ownership by way of adverse possession because, defendant neither in the pleadings nor in his statement stated anything specific with regard to time when his possession qua the suit land turned hostile.
Mr.Chandel, while inviting the attention of this Court to the statement of PW-1, made an attempt to persuade this Court to take a view that possession of the respondent over the land in question, if any, was permissive and finding contrary to the same, as returned by the first appellate Court, deserves to be quashed and set aside being contrary to the evidence led on record by the respective parties. While making prayer to accept the instant appeal, Mr.Chandel ::: Downloaded on - 29/04/2017 23:57:21 :::HCHP 9 contended that there has been total mis-appreciation and mis-construction of evidence by learned first appellate court .
and as such finding returned by the learned trial Court, whereby plea of adverse possession taken by the defendant was rejected, is required to be restored after setting aside the judgment and decree passed by the first appellate Court.
Mr.Chandel, during arguments having been made by him, fairly conceded that there is concurrent findings of fact recorded by the Courts below with regard to possession of the respondent over the land in question for the last more than 30 years and as such eviction, if any, can be sought by the true owner in accordance with law by way of filing suit for possession, if any.
14. Mr.Rajnish K.Lall, learned counsel representing the defendants, supported the impugned judgment passed by learned first appellate Court. Mr.Lall with a view to refute the contention having been made by learned counsel representing the plaintiff made this Court to travel through the impugned judgment passed by learned first appellate Court to demonstrate that evidence adduced on record by the respective parties, especially the defendant, has been read in its right perspective and there is no mis-appreciation as claimed by the counsel representing the plaintiff. While referring to the statement having been made by PW-1 i.e. ::: Downloaded on - 29/04/2017 23:57:21 :::HCHP 10 power of attorney of plaintiff; namely; Prabhu Ram, Mr.Lall contended that the plaintiff himself admitted the possession .
of defendant No.1 over the suit land for the last more than 30 years and as such there is no illegality and infirmity in the findings returned by the learned first appellate Court.
Learned counsel representing the defendants, while refuting the contention of the learned counsel for the plaintiff that candid admission has been made by the defendant that construction over the suit land was raised by them under presumption that they are actual owner of the suit land, invited attention of this Court to the statement of DW-1 to demonstrate that if statement having been made by defendant No.1 read in its entirety, it clearly suggests that construction over the suit land was raised 30 years back by the forefathers of the defendant and at no point of time resistance, if any, was shown by the plaintiff or his predecessor-in-interest Mr.Lall further contended that the plaintiff cannot be allowed to read certain portion of statement of DW-1 in isolation to conclude that possession/ construction, if any, over the suit land was permissive in nature, rather close reading of statement having been made by DW-1 as well as other defendant witnesses proves beyond reasonable doubt that defendants have become owners by way of adverse possession. Mr.Lall also invited the attention ::: Downloaded on - 29/04/2017 23:57:21 :::HCHP 11 of this Court to the written statement filed by the defendants to refute the contention having been made on behalf of the .
plaintiff that no specific pleadings, if any, have been made with regard to the adverse possession as claimed by the defendants.
15. While concluding his arguments, Mr.Lall contended that since both the Courts below have dealt with each and every aspect of the matter meticulously, there is no scope of interference, especially in view of the concurrent findings of fact recorded by Courts below. In this regard, to substantiate his aforesaid plea, he placed reliance upon the judgment passed by Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264.
16. I have heard learned counsel for the parties and gone through the record of the case carefully.
17. At the very outset, it may be stated that this Court need not to look into the validity and correctness of findings returned by the Courts below with regard to possession of defendants over the suit land as well as entitlement of plaintiff for decree of permanent prohibitory injunction, in view of concurrent findings of fact and law recorded on the point by both the Courts below and more particularly in view of fair stand adopted by learned counsel representing the appellants-plaintiffs.
::: Downloaded on - 29/04/2017 23:57:21 :::HCHP 1218. Otherwise also, in the instant Regular Second Appeal, this Court is only bound to answer substantial .
questions of law framed at the time of admission of the appeal. Perusal of substantial questions of law, as reproduced hereinabove, nowhere suggests that dispute, if any, with regard to findings qua possession over the suit land as well as entitlement of plaintiff for decree of permanent prohibitory injunction is/was in issue, rather, controversy at hand is with regard to findings returned by learned first appellate Court, whereby defendant has been held to be in adverse possession of the suit land.
19. Perusal of pleadings available on record suggests that plaintiff filed a suit for permanent prohibitory injunction against the defendants praying therein that defendants be restrained permanently from interfering in the suit land in any manner or in the alternative plaintiff claimed that if plaintiff is dispossessed during the pendency of the suit or is not found in possession of any portion of the suit land or any construction is found in any portion of the suit land, the same may be ordered to be dismantled and possession of vacant land be restored to the plaintiff. In nutshell, plaintiff claimed that the suit land bearing Khasra No.87, Khewat No.7min, Khatauni No.7 min, land measuring 0-12 bighas, situated in village Dali, Pargana and Tehsil ::: Downloaded on - 29/04/2017 23:57:21 :::HCHP 13 Sadar, District Bilaspur, H.P. is under the ownership as well as possession of plaintiff. He further claimed that the .
defendants have no right, title or interest in the suit land in any manner, whatsoever.
20. Defendants by way of written statement refuted the aforesaid claim of the plaintiff and claimed that plaintiff is not the owner of the suit land and defendant No.1 has become full fledged owner of the land measuring one biswa by way of adverse possession. Defendant No.1 further claimed that his father was in adverse possession of the same for the last more than 60 years and after his death in the year 1972, he continued to be in adverse possession of the land. Defendants further claimed that they constructed houses in the years 1962 and 1982 on the part of the suit land. Apart from above, defendants also claimed that they constructed a water tank and Tulsi Chaura in 1964 on the part of suit land as owner of this land.
21. Before proceeding to explore answer to the substantial questions of law, as referred hereinabove, this Court deems it fit to take note of paras 1 and 2 of the written statement filed by the defendants, which are reproduced here-in-below:
"1. That para No.1 of the plaint is not admitted to be correct and is denied. The plaintiff is not in the possession of the land measuring 1 biswa comprised in ::: Downloaded on - 29/04/2017 23:57:21 :::HCHP 14 Khasra No.87/1 as shown in the Tatima attached herewith. The plaintiff is not the owner of this land as well and the defendant No.1 has become full-fledged .
owner of land measuring 1 biswa as shown in the Tatima and marked as 87/1 as the father of defendant No.1 was in the adverse possession of the same for the last more than 60 years and after his death in 1972 the defendant No.1 continued to remain in adverse possession of this land as owner. The defendant has constructed houses in 1962 and 1982 part of which is located on the land mentioned in this para. The defendant has also constructed a water tank and Tulsi Chaura in 1964 and fixed a tap in the part of this land mentioned in Khasra No.87/1 as owner of this land. These constructions were made in the presence of the plaintiff and he did not object at any time to the constructions made by the defendant. The passage of the defendant and his family members & acquaintances is also in existence in this Khasra No.87/1 and we have been passing through this passage as considering ourselves owners of this Khasra No. openly as a matter of right without any objection or resistance from the plaintiff.
2. That para No.2 of the plaint is admitted to be correct to the extent of defendants residence but it is incorrect to say that the defendants have no right, title or interest in the suit land. The defendants are in the possession of Khasra No.87/1 adversely, openly, as a matter of right of being owner in possession from the time of defendant No.1's father who became the owner of this Khasra No.87/1 in 1942."
22. If stand taken/adopted by the defendants in their written statement is perused carefully, it certainly compel this Court to agree with the contention raised by learned counsel representing the plaintiff that construction, if any, on the suit land was raised by the defendants ::: Downloaded on - 29/04/2017 23:57:21 :::HCHP 15 presuming themselves to be the owners of the land.
Defendants, while refuting the claim of plaintiff that he is .
owner in possession of the suit land, specifically stated in their written statement that they constructed their houses in 1962 and 1982. Defendants further averred in the written statement that they raised construction of water tank and Tulsi Chaura in 1964 and fixed a tap on the part of land bearing Khasra No.87/1, as an owner of this land. Once defendants in their written statement claimed themselves to be true owners of the suit land, it is not understood how plea of adverse possession could be taken by them. Apart from above, defendants also stated in the written statement that passage of defendants, his family members and acquaintances is also in existence in this Khasra No.87/1 and they have been passing through this passage considering themselves to be the owners of this Khasra number openly as a matter of right without any objection or resistance from the plaintiff.
23. Apart from above, defendants in para-2 of written statement, as reproduced hereinabove, again claimed that they are in possession of Khasra No.87/1, adversely, openly as a matter of right being owner in possession from the time of their forefathers, who became the owner of this Khasra Number in 1942. If the aforesaid stand taken by the ::: Downloaded on - 29/04/2017 23:57:21 :::HCHP 16 defendants in their written statement is perused minutely, this Court has no hesitation to conclude that construction, if .
any, over the suit land, be it of house or water tank or Tulsi Chaura, was raised by the defendants presuming themselves to be the owners of the suit land and as such plea of adverse possession, as taken by them in the present suit, could not have been taken by them, while opposing the claim of plaintiff. This Court also, with a view to ascertain genuineness and correctness of submissions having been made by learned counsel representing the plaintiff, carefully perused statement of DW-1 i.e. defendant No.1 Mr.Sohan Singh, who, at the very outset, claimed himself to be the owner of the disputed land, rather, he has gone a step ahead by stating that land is in his name. Defendants also claimed that this land is in their possession since the time of their forefathers and upon which they have raised two houses, water tank and Tulsi Chaura. Defendants also stated that their possession over the suit land is open and at no point of time plaintiff Prabhu Ram claimed it to be his land. But, interestingly, defendant No.1, in his examination-in-chief, has stated that they raised construction over the suit land presuming themselves to be the owners of the suit land.
Similarly, this Court sees substantial force in the arguments having been made by learned counsel representing the ::: Downloaded on - 29/04/2017 23:57:21 :::HCHP 17 plaintiff that there is no specific statement, if any, with regard to timing on which date defendants came into adverse .
possession of the suit land, rather defendant No.1 in his entire statement feigned ignorance with regard to specific day, month on which this land came into their possession.
Most importantly, defendant No.1 in his cross-examination admitted that till today he did not know that land measuring 1 biswa belongs to plaintiff. He further stated that had he knew that land belongs to plaintiff, he would not have raised construction of his house over the same. He also admitted that one year ago plaintiff had taken demarcation of the suit land. Defendant No.1 has further admitted in his cross-
examination that he is in possession of one biswa of land belonging to plaintiff Shri Prabhu Ram. He further stated that he did not know that when he came into possession qua the aforesaid one biswa of land and claimed that he is in possession of the same from the time of his father. Record further suggests that defendant, while answering Court questions, admitted that his uncle, plaintiff Prabhu Ram, had told him after demarcation that some land of his comes under his house, Tulsi Chaura and water tank. He also admitted that uncle had asked him to vacate that. Most importantly, while answering the aforesaid question, defendant No.2 admitted/stated that he had told his uncle ::: Downloaded on - 29/04/2017 23:57:21 :::HCHP 18 that since he is his uncle, he may take exchange of the land, as he does not want to go to Court.
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24. This Court, after carefully examining the pleadings, more particularly written statement having been filed by the defendants as well as statement of DW-1 i.e. defendant No.1 Sohan Singh, is persuaded to accept the contention having been made on behalf of the plaintiff, that learned first appellate Court while holding defendants to be in adverse possession of suit land mis-appreciated and misread the evidence, as a result of which erroneous findings have come on record.
25. This Court, after carefully perusing the evidence led on record, sees no basis of findings returned by learned first appellate Court that defendants have perfected their title by way of adverse possession. Since plea of adverse possession was taken by the defendants in their written statement, burden was upon them to specifically prove on record that at what point of time his possession has become hostile to the plaintiff and at what point of time it matured into title by way of adverse possession after the lapse of period of 12 years. But, in the instant case, for the reasons stated hereinabove, it can be safely concluded that defendants have failed to prove hostile animus, if any, towards the plaintiff, rather entire defence, if perused ::: Downloaded on - 29/04/2017 23:57:21 :::HCHP 19 carefully juxtaposing written statement as well statement of DW-1, it can be easily inferred that defendant No.1 claimed .
himself to be true owner in possession of the suit land. Once defendant claimed that construction over the suit land was raised by him, presuming himself to be owner, plea of adverse possession could not have been taken by him.
Similarly, as clearly emerged from the statement of DW-1 that once the defendants have made offer for exchange of the land, no plea of adverse possession could be taken by them.
26. It is well settled law that plea of adverse possession is not a pure question of law but a blended one of fact and law. As such, a person who claims adverse possession should prove; (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. The Hon'ble Apex Court in Hemaji Waghaji Jat vs. Bhikhabhai Khengarbhai Harijan & Ors., AIR 2009 SC 103, has held that since a person claiming adverse possession intends to defeat the rights of the true owner, onus is heavily upon him to clearly plead and establish all facts necessary to establish his adverse possession. Rather, in the case referred above, Hon'ble Apex Court termed the law of adverse possession as ::: Downloaded on - 29/04/2017 23:57:21 :::HCHP 20 irrational, illogical and wholly disproportionate and recommended Union of India to seriously consider and make .
suitable changes in the law of adverse possession. The Hon'ble Apex Court has held:-
"18. In Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779 at para 11, this court observed as under:-
"In the eye of the 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 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."
The court further observed that 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 the true owner, it is for him ::: Downloaded on - 29/04/2017 23:57:21 :::HCHP 21 to clearly plead and establish all facts necessary to establish his adverse possession.
19. In Saroop Singh v. Banto (2005) 8 SCC 330 .
this Court observed:
"29. 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 becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak (2004) 3 SCC 376)
30. `Animus possidendi' is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Md.
Mohammad Ali (Dead) by LRs. v.
Jagdish Kalita and Others (2004) 1 SCC 271)"
20. This principle has been reiterated later in the case of M. Durai v. Muthu and Others (2007) 3 SCC 114 para 7. This Court observed as under:
"...In terms of Articles 142 and 144 of the old Limitation Act, the plaintiff was bound to prove his title as also possession within twelve years preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession."
21. This court had an occasion to examine the concept of adverse possession in T. Anjanappa & Others v. Somalingappa & Another [(2006) 7 SCC 570]. The court observed that a person who bases his title on adverse possession must show ::: Downloaded on - 29/04/2017 23:57:21 :::HCHP 22 by clear and unequivocal evidence that his title was hostile to the real owner and amounted to denial of his title to the property claimed. The court further observed that 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 interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action.
22. In a relatively recent case in P. T. Munichikkanna Reddy & Others v. Revamma & Others (2007) 6 SCC 59] this court again had an occasion to deal with the concept of adverse possession in detail. The court also examined the legal position in various countries particularly in English and American system. We deem it appropriate to reproduce relevant passages in extenso. The court dealing with adverse possession in paras 5 and 6 observed as under:-
"5. 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. [See Downing v. Bird 100 So. 2d 57 (Fla. 1958), Arkansas Commemorative Commission v. City of Little Rock 227 Ark. 1085 : 303 S.W.2d 569 (1957); Monnot v. Murphy 207 N.Y. 240, 100 N.E. 742 (1913); City of Rock Springs v. Sturm 39 Wyo. 494, 273 P. 908, 97 A.L.R. 1 (1929).]
6. Efficacy of adverse possession law in most jurisdictions depend on strong limitation statutes by operation of which right to access the court expires through effluxion of time. As against rights of the ::: Downloaded on - 29/04/2017 23:57:21 :::HCHP 23 paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a .
long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or color of title. (See American Jurisprudence, Vol. 3, 2d, Page 81). It is important to keep in mind while studying the American notion of Adverse Possession, especially in the backdrop of Limitation Statutes, that the intention to dispossess can not be given a complete go by. Simple application of Limitation shall not be enough by itself for the success of an adverse possession claim."
34. Before parting with this case, we deem it appropriate to observe that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner.
36. In our considered view, there is an urgent need of fresh look regarding the law on adverse ::: Downloaded on - 29/04/2017 23:57:21 :::HCHP 24 possession. We recommend the Union of India to seriously consider and make suitable changes in the law of adverse possession. A copy of this judgment be sent to the Secretary, Ministry of .
Law and Justice, Department of Legal Affairs, Government of India for taking appropriate steps in accordance with law."
27. Reliance is also placed upon the judgments of Hon'ble Apex Court in Nasgabhushanammal (D) By LRs.
Vs. C.Chandikeswaralingam, AIR 2016 SC 1134, Bangalore Development Authority vs. N.Jayamma, AIR 2016 SC 1294 and Prem Nath Khanna and others vs. Narinder Nath Kapoor (Dead) Through L.Rs. and others, AIR 2016 SC 1433.
28. After bestowing my thoughtful consideration to the pleadings as well as evidence led on record by respective parties, I see no reason to uphold the findings returned by learned first appellate Court, whereby defendant No.1 has been declared owner of the suit land by way of adverse possession. Rather, after carefully examining the material evidence led on record by the respective parties, this Court is compelled to observe that learned first appellate Court has mis-appreciated, misread and overlooked the evidence made available on record by respective parties, perusal whereof certainly would not suggest that defendant No.1 was able to prove on record by leading cogent and convincing evidence that he has become owner by way of adverse possession qua ::: Downloaded on - 29/04/2017 23:57:21 :::HCHP 25 the suit land. Substantial questions are answered accordingly.
.
29. Hon'ble Apex Court in Laxmidevamma's case supra, has held as under:-
"16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained."
(p.269)
30. Perusal of the judgment, referred hereinabove, suggests that in exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. There can be no quarrel (dispute) with regard to aforesaid observation made by the Court and true it is that ::: Downloaded on - 29/04/2017 23:57:21 :::HCHP 26 in normal circumstances High Courts, while exercising powers under Section 100 CPC, are restrained from re-
.
appreciating the evidence available on record, but as emerges from the case referred above, there is no complete bar for this Court to upset the concurrent findings of the Courts below, if the same appear to be perverse.
31. In this regard reliance is placed upon judgment passed by Hon'ble Apex Court in Sebastiao Luis Fernandes (Dead) through LRs and Others vs. K.V.P. Shastri (Dead) through LRs and Others, (2013)15 SCC 161, wherein the Court held:
"35. The learned counsel for the defendants relied on the judgment of this Court in Hero Vinoth v. Seshammal, (2006)5 SCC 545, wherein the principles relating to Section 100 of the CPC were summarized in para 24, which is extracted below : (SCC pp.555-56) "24. The principles relating to Section 100 CPC relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a ::: Downloaded on - 29/04/2017 23:57:21 :::HCHP 27 question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal .
principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iii) The general rule is that High Court r will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where
(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or
(iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
We have to place reliance on the afore-mentioned case to hold that the High Court has framed substantial questions of law as per Section 100 of the CPC, and there is no error in the judgment of the High Court in this regard and therefore, there is no need for this Court to interfere with the same."
(pp.174-175) ::: Downloaded on - 29/04/2017 23:57:21 :::HCHP 28
32. In the case at hand, learned Courts below have ignored/mis-appreciated the evidence led on record by the .
defendants and have also drawn wrong inferences from the proven facts, as has been discussed in the earlier part of this judgment. Hence, this Court sees reason to interfere in the matter and set aside the judgments and decrees, which are apparently perverse.
33. Accordingly, the present appeal is allowed and the judgments and decrees passed by both the Courts below are set aside. Pending applications, if any, are disposed of.
Interim orders, if any, are vacated.
April 25 , 2017 (Sandeep Sharma)
(aks) Judge
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