Himachal Pradesh High Court
Satpal Singh vs State Of H.P. And Others on 8 August, 2016
Bench: Mansoor Ahmad Mir, Tarlok Singh Chauhan
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CWP No. 306 of 2016 Reserved on: 26.07.2016 Decided on: August 8, 2016.
Satpal Singh ...Petitioner
of
Versus
State of H.P. and others
rt ...Respondents
Coram
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1Yes For the Petitioner: Mr. Rajiv Rai, Advocate.
For the Respondents : Mr. Shrawan Dogra, Advocate General with Mr. Anup Rattan, Addl. Advocate General, Mr. J.K. Verma and Mr. Kush Sharma, Deputy Advocate Generals.
_____________________________________________________ Tarlok Singh Chauhan J.
The petitioner has been found to be an encroacher over government forest land by both the authorities below under the H.P. Public Premises and Land (Eviction and Rent Recovery) Act, 1971 (for short the 'Act') and has filed the instant writ petition for the following substantive reliefs:
"A. That the impugned order dated 17.11.2015 passed by the learned Divisional Commissioner, Mandi Division in Case No. 457/2012 vide Annexure P/1 and the impugned decision dated 24.06.2011 passed by the learned Whether the reporters of the local papers may be allowed to see the Judgment? Yes.::: Downloaded on - 15/04/2017 20:59:01 :::HCHP 2
Collector-cum-DFO in case No. 96/2001-2 may kindly be .
quashed and set-aside.
B. That in alternatively the matter may kindly be remanded back to the learned Collector-cum-DFO to decide the matter afresh by answering all the objections/contentions raised by the petitioner and his of predecessor in interest with speaking order."
2. The facts giving rise to the present petition are that rt based upon the demarcation conducted by the Settlement Patwari and Field Kanungo, a case of encroachment came to be filed against the petitioner for having encroached upon the forest land in Baragarh-III area measuring 00-06-00 hectares by fencing and planting fruit plants and also by constructing a wooden Khokha. These proceedings culminated in the order of eviction being passed against the petitioner.
3. Aggrieved by the order dated 24.6.2011 passed by the Collector-cum-DFO, Kullu, the petitioner filed an appeal before the learned Divisional Commissioner, who too, dismissed the appeal vide order dated 17.11.2015.
4. This has led the petitioner to file the instant writ petition wherein it is contended that the reply filed by the petitioner to show cause notice has not been considered and the orders passed by both the authorities below are non-
speaking orders bereft of any reasons and thus not sustainable in the eyes of law. It is further contended that the ::: Downloaded on - 15/04/2017 20:59:01 :::HCHP 3 Patwari was not competent to conduct the demarcation and .
the same otherwise had been conducted without associating the petitioner or his predecessor-in-interest. It is also contended that the Collector has not correctly decided the issue of adverse possession.
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5. The respondents in their reply have categorically rt stated that the petitioner was well aware of the fact that he was in unauthorized occupation of the premises in dispute and, therefore, the eviction proceedings were rightly initiated against his father, who failed to substantiate his claim of adverse possession as there was no documentary proof on record to buttress such claim.
We have heard the learned counsel for the parties and also gone through the material placed on record.
6. As regards, the first contention of the petitioner regarding the orders passed by the authorities below being non-speaking and devoid of any reasons, suffice it to say that the objection has been raised only for the sake of objection as evidently both the orders are not only speaking, but self contained orders spelling out clearly as to why the petitioner is to be evicted.
7. At this stage, we may notice that the order by the Collector-cum-DFO, Kullu has been passed after he ::: Downloaded on - 15/04/2017 20:59:01 :::HCHP 4 formulated the points for determination, recorded the evidence .
of the parties and only thereafter by discussing the pleadings and scanning the evidence in detail, the petitioner has been ordered to be evicted from the land encroached by his father.
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8. Similarly, the Divisional Commissioner while affirming the order of eviction has not simply dittoed the order rt passed by the Collector-cum-DFO, Kullu, but has given independent reasoning to uphold the order, to which no exception can be taken by the petitioner.
9. Insofar as the second contention regarding the demarcation having been conducted by a person not competent to do so, we really find no substance in this plea for the simple reason that this plea was though available to the predecessor-in-interest of the petitioner against whom the eviction proceedings had been initiated, yet he did not choose to question the competence of the officer conducting the demarcation. The petitioner is only the successor of Sh.
Sunder Singh and by stepping into his shoes cannot raise the plea which his predecessor had failed to raise and is, therefore, clearly estopped from raising such plea at this stage.
10. Now, adverting to the question of adverse possession, it is well recognized proposition in law that mere ::: Downloaded on - 15/04/2017 20:59:01 :::HCHP 5 possession however long does not necessarily mean that it is .
adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in of continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of rt acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. It is equally settled that a person pleading adverse possession has no equities in his favour and since such a person is trying to defeat the rights of the true owner, it is for him to clearly plead and establish necessary facts to establish his adverse possession. In the eyes of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Even non-use of the property by the owner for a long time won't affect his title.
11. So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immoveable property and conferring upon a third party encroacher title ::: Downloaded on - 15/04/2017 20:59:01 :::HCHP 6 where he had none. (Refer: State of Rajasthan vs. Harphool .
Singh (dead) through his LRs (2000) 5 SCC 652).
12. In P. Periasami vs. P. Periathambi (1995) 6 SCC 523, the Hon'ble Supreme Court ruled that:
of "Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property."
rt
13. In Karnataka Board of Wakf vs. Government of India and others (2004) 10 SCC 779, the Hon'ble Supreme Court held that one who pleads adverse possession should be very clear about the origin of title over the property. He must specifically plead it.
14. Over the years there has been a new paradigm to Limitation Act as the same has undergone a change. The burden of proof is now on the person who alleges his adverse possession, particularly once a party has proved its title. The starting point of limitation commences not from the date when the right of ownership arises in favour of the original owner but from the date a party claims his possession to have become adverse.
15. At this stage, it would be necessary to advert to the plea of adverse possession as has been raised by the petitioner before the authorities below and the same reads thus:
::: Downloaded on - 15/04/2017 20:59:01 :::HCHP 7"As a matter of fact, the respondent in the year 1968, .
had purchased the land in Patlikuhal and the possession of the same was also delivered to him by the previous owners, who had duly fenced the land purchased by the respondent and immediately after purchase of the land, the respondent has constructed two storeyed residential house. Besides this, the respondent has constructed the cowshed, toilet and has also raised the orchard consisting of the apples of and almond etc. and maintained the same. In any case, if any land underneath the aforesaid structure and orchard, the possession of which was delivered to him by predecessors in interest, is found to be owned by the State at any time, even in that event the rt respondent has in open, peaceful, continuous, hostile, uninterrupted of the same for more than 30 years, to the notice of every body else. This possession of the respondent has been open, peaceful continuous, uninterrupted, hostile, to the notice and knowledge of the State of H.P. the Forest Department, general public and every body else and the respondent has never allowed anybody else including the State of H.P. to cause any sort of interference or interruption in such possession of the respondent and he has been openly stacking his claim over the disputed land as owner thereof and has not allowed any body else to cause any sort of unlawful interference and as such the long long possession of the respondent which is since the year 1968, when he purchased the land, which is even prior to his predecessor in interest and as such he has already acquired the title thereon by adverse possession and the long long possession of the respondent has already been perfected into absolute title, and the right, title or interest of the State, if any, has already been extinguished and therefore, he cannot be dispossessed or evicted therefrom over which the State has got no right, which is not public premises."
16. It would be noticed that the main plea of the petitioner was that he was the owner of the land as he had purchased the same from previous owner in the year 1968 and thereafter had constructed two storeyed residential house, cow-shed, toilet and has also raised an orchard over the same. He in the earlier part of his reply has categorically ::: Downloaded on - 15/04/2017 20:59:02 :::HCHP 8 stated that the Forest Department was not even the owner of .
the land allegedly encroached by him as would be evident from para-2 of the preliminary objections, which reads thus:
"2. That the land allegedly encroached upon is not the land owned by the Forest Department and as such the of proceedings have been illegally initiated before this learned Court and consequently the proceedings are liable to be dropped."
17. rt It would further be evident that the petitioner actually does not know, who in fact is the real owner of the property and has rather set up a lawful title in himself over the property on the basis of the same having been purchased in the year 1968.
18. In T. Anjanappa and others vs. Somalingappa and another (2006) 7 SCC 570, the Hon'ble Supreme Court held as under:
"21. The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise. Above being the position the High Court's judgment is clearly unsustainable."
[See also Des Raj and Ors. v. Bhagat Ram (Dead) By LRs. and Ors., 2007 (3) SCALE 371; Govindammal v. R. Perumal Chettiar & Ors., JT 2006 (10) SC 121 : (2006) 11 SCC 600]."
::: Downloaded on - 15/04/2017 20:59:02 :::HCHP 919. It is more than settled that the plea of ownership .
simpliciter is based on the concept of title, which one may acquire through various sources like succession, gift, will, sale, exchange, grant etc. etc. and the person in possession is essentially to be treated as being in lawful possession.
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20. While on the other hand when the plea of adverse rt possession is projected, inherent is the plea that someone else is the owner of the property. (See: P. Periasami (dead) by L.Rs. vs. P. Periathambi and others (1995) 6 SCC 523.
Having said so, it can safely be concluded that the pleas based on title and simultaneously on adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. (Ref: Mohan Lal (deceased) vs. Mira Abdul Gaffar and another (1996) 1 SCC 639 and L.N. Aswathama & anr. vs. P. Prakash (2009) 13 SCC 229.
21. It was, therefore, incumbent upon the petitioner to have chosen one line of defence and could not have raised the plea of ownership and also the plea of adverse possession.
22. Moreover, the plea of adverse possession as raised by the petitioner is absolutely vague as the petitioner has not cared to mention the date from which his possession ::: Downloaded on - 15/04/2017 20:59:02 :::HCHP 10 in fact became adverse. This question assumes importance .
as the petitioner initially had set up a lawful title in himself.
23. In Kamla and others vs. Baldev Singh and others 2008(1) Shim. LC 215, this court has held as under:-
"........Moreover, in case defendant or his father of were in possession of the suit land as owner and the possession was never taken by the plaintiffs in pursuance of the decree, they can be said to be in possession as owner, but they cannot be treated to rt be in adverse possession of the suit land in any manner. The learned trial Court has not given its findings that the defendant or his father continued to be owner of the suit land even after passing of the decree since the decree was never executed, but has given the findings in the alternative that the defendant has become owner by way of adverse possession. This plea was taken by the defendant in the alternative but he never pleaded as to from which date his permissive possession as owner became adverse to the true owners i.e. plaintiffs and what overt act was done by him to show his hostile title to the suit land. There were no allegations as to when the possession became adverse, in which year or month or in what manner and the simple general allegation made by the defendant in the alternative were accepted by the trial Court without looking into the question that the original possession of the defendant over the suit land or that of his father was permissive being an owner and it never became adverse as against the true owner and if it became adverse in what manner and from which date, month or year. The permissive possession as owner does not itself become adverse as against the true owner until and unless some overt act is done by the defendant to show his hostile title towards the true owner which pleadings were very much lacking in the written statement and as such, the defendant was never proved to be in adverse possession of the suit land as owner. Those findings were rightly reversed by the learned first Appellate Court and the learned first Appellate Court had rightly observed that there was complete lack of animus on the part of the defendant to hold the suit land adversely to the plaintiffs. It was also observed that it has also not been shown as to what time possession of the defendant became hostile to that of the plaintiffs which had ripened into ownership. To my mind, there was nothing for the trial Court to conclude that the defendant has become owner by way of adverse possession in the absence of specific pleadings or proof and, therefore, the ::: Downloaded on - 15/04/2017 20:59:02 :::HCHP 11 learned first appellate Court had come to a right .
conclusion in reversing the findings under Issue No. 1 in regard to the plea of adverse possession. Once the defendant had failed to prove adverse possession over the suit land, the only conclusion that can be drawn is the plaintiffs were entitled to the relief of possession and it was rightly given by the first appellate Court."
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24. This court in Brij Mohan Sood vs. Parshotam Singh and others 2014(1) Him. L.R. 556, has held as follows:-
rt "11. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is well settled principle that a party claiming adverse possession must prove that his possession is "
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. It must start with a wrongful disposition of the rightful owner and be actual visible, exclusive, hostile and continued over the statutory period. Therefore, a person who claims adverse possession has to 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 is continued; and (e) his possession was open and undisturbed. It has to be remembered that the person pleading adverse possession has no equity in his favour since he is trying to defeat the right of the true owner, therefore, it is for him to clearly plead and establish all facts necessary to establish his adverse possession (Refer Dr. Mahesh Chand Sharma vs. Raj Kumari Sharma (Smt.) and others (1996) 8 SCC 128 ).
12. Having observed so, it is clear from the pleadings of the defendant that he has failed to plead the essential ingredients of adverse possession. In absence of the essential ingredients of adverse possession, no amount of evidence can be looked into by this Court. Even otherwise, the defendant has set-up a title in himself and has not acknowledged or ::: Downloaded on - 15/04/2017 20:59:02 :::HCHP 12 attorned the plaintiffs to be the owners. Apart .
from preliminary objection No.1 (supra), in paragraph-3 of the preliminary objection, the defendant has made the following averments:
"The plaintiffs are not the owners of the land rather the defendants are its owners and the plaintiffs have got no locus standi to file the suit." Throughout in the written statement, the of defendants have claimed themselves to be the owners of the suit property and thus the plea of adverse possession is not available to them. "
25. rt This court further in Deepak Parkash vs. Sunil Kumar 2014(1) Him. L.R. 654 has emphasized on the requirement of law of pleading the exact date from which the possession became adverse, in the following terms:
"14. It appears that the learned lower Appellate Court completely ignored the pleadings of the parties or else the judgment and decree passed by the learned trial Court on the basis of such pleadings would not have been disturbed much less reversed. A perusal of the written statement would show that pleadings with regard to adverse possession were not only deficient but in fact did not meet the requirement of law. The defendant even failed to specify the definite date on which his possession became adverse.
16. Faced with such situation, learned counsel for the respondent/defendant would contend that he had led sufficient evidence to prove his plea of adverse possession. I am afraid that I cannot agree with the submissions made by learned counsel for the respondent/defendant.
17. It is settled law that no amount of evidence beyond pleadings can be looked into. It is further well settled principle of law that the evidence adduced beyond the pleading would not be admissible nor can any evidence be permitted to be adduced which is at variance with the pleadings. The Court at the later stage ::: Downloaded on - 15/04/2017 20:59:02 :::HCHP 13 of the trial as also the Appellate Court having .
regard to the rule of pleading would be entitled to reject the evidence wherefor there does not exist any pleading."
26. In Om Parkash & ors. vs. Gian Chand & ors.
2014(2) Him.L.R. 1071 one of us (Tarlok Singh Chauhan, J) of dealt in detail with the question of adverse possession particularly when the defendant therein had not spelt out any rt specific date from which his possession became adverse and it was observed as follows:-
"11. Therefore, the moot question is as to whether the pleadings set out by the defendants can meet the requirement of law or not. This question assumes importance, because admittedly, the defendants have not spelt out any specific date from which their possession became adverse."
27. Similar reiteration of law on the question of adverse possession over the public property can be found in a detailed judgment rendered by this Court in CWP No. 4087 of 2014 titled Manoj Singh vs. Union of India and others, decided on 27.5.2015 and notably the said judgment was affirmed by the Hon'ble Supreme Court in SLP(C)No. 17169 of 2015, decided on 02.07.2015 except that the amount of costs awarded by this Court was reduced from `1,00,000/- to `25,000/- subject to the condition that the premises would be vacated by the petitioner therein within a period of three months from the order and it was further made clear that in case he does not voluntarily hand over the possession of the ::: Downloaded on - 15/04/2017 20:59:02 :::HCHP 14 premises to the Estate Department within the stipulated .
period, the amount of costs awarded by this Court shall get restored.
28. It has to be remembered that whenever an of encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse rt possession, the court is duty bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/ title of the State to immovable property and give upper hand to the encroachers, unauthorized occupants or land grabbers.
29. In this context, it shall be fruitful to refer to the following observations of the Hon'ble Supreme Court in Mandal Revenue Officer vs. Goundla Venkaiah and another (2010) 2 SCC 461:-
"47. In this context, it is necessary to remember that it is well neigh impossible for the State and its instrumentalities including the local authorities to keep every day vigilance/watch over vast tracts of open land owned by them or of which they are the public trustees. No amount of vigil can stop encroachments and unauthorised occupation of public land by unscrupulous elements, who act like vultures to grab such land, raise illegal constructions and, at times, succeeded in manipulating the State apparatus for getting their occupation/possession and construction regularized. It is our considered view that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the Court is duty bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State to immovable property and give ::: Downloaded on - 15/04/2017 20:59:02 :::HCHP 15 upper hand to the encroachers, unauthorised .
occupants or land grabbers.
48. In State of Rajasthan v. Harphool Singh (Dead) through Lrs. 2000 (5) SCC 652, this Court considered the question whether the respondents had acquired title by adverse possession over the suit land situated at Nohar-Bhadra Road at Nohar within the State of Rajasthan. The suit filed by the respondent against his of threatened dispossession was decreed by the trial Court with the finding that he had acquired title by adverse possession. The first and second appeals preferred by the State Government were dismissed by the lower appellate Court and the High Court rt respectively. This Court reversed the judgments and decrees of the courts below as also of the High Court and held that the plaintiff-respondent could not substantiate his claim of perfection of title by adverse possession. Some of the observations made on the issue of acquisition of title by adverse possession which have bearing on this case are extracted below:-
"12. So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immovable property and conferring upon a third-party encroacher title where he had none. The decision in P. Lakshmi Reddy v. L. Lakshmi Reddy adverted to the ordinary classical requirement -- that it should be nec vi, nec clam, nec precario -- that is the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. It was also observed therein that whatever may be the animus or intention of a person wanting to acquire title by adverse possession, his adverse possession cannot commence until he obtains actual possession with the required animus."
49. A somewhat similar view was expressed in A.A. Gopalakrishnan v. Cochin Devaswom Board 2007 (7) SCC 482. While adverting to the need for protecting the properties of deities, temples and Devaswom Boards, the Court observed as under:-
"The properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their trustees/ archakas/ ::: Downloaded on - 15/04/2017 20:59:02 :::HCHP 16 shebaits/ employees. Instances are many where .
persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of "fences eating the of crops" should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It rt is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation."
30. Even otherwise, it is settled that all lands which are not the property of any person or which are not vested in a local authority, belong to the Government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the Government is not available to any person or individual. Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit or any other proceeding against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit or any other proceeding for title against the Government. This follows from Article 112 of the Limitation Act, 1963, which prescribes a longer period of thirty years as limitation in regard to suits by Government as against the period of 12 years for suits by private individuals. The reason ::: Downloaded on - 15/04/2017 20:59:02 :::HCHP 17 is obvious. Government properties are spread over the entire .
State and it is not always possible for the Government to protect or safeguard its properties from encroachments.
31. This was so held by the Hon'ble Supreme Court in of in R. Hanumaiah and another vs. Secretary to Government of Karnataka, Revenue Department and others (2010) 5 rt SCC 203 wherein it was held as under:
"19. Suits for declaration of title against the government, though similar to suits for declaration of title against private individuals differ significantly in some aspects. The first difference is in regard to the presumption available in favour of the government. All lands which are not the property of any person or which are not vested in a local authority, belong to the government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual. The second difference is in regard to the period for which title and/or possession have to be established by a person suing for declaration of title. Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit for title against government. This follows from Article 112 of Limitation Act, 1963, which prescribes a longer period of thirty years as limitation in regard to suits by government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire state and it is not always possible for the government to protect or safeguard its properties from encroachments. Many a time, its own officers who are expected to protect its properties and maintain proper records, either due to negligence or collusion, create entries in records to help private parties, to lay claim of ownership or possession against the government. Any loss of government property is ultimately the loss to the community. Courts owe a duty to be vigilant to ::: Downloaded on - 15/04/2017 20:59:02 :::HCHP 18 ensure that public property is not converted into .
private property by unscrupulous elements.
20. Many civil courts deal with suits for declaration of title and injunction against government, in a casual manner, ignoring or overlooking the special features relating to government properties. Instances of such suits against the government being routinely decreed, either ex parte or for want of proper contest, merely of acting upon the oral assertions of plaintiffs or stray revenue entries are common. Whether the government contests the suit or not, before a suit for declaration of title against a government is decreed, the plaintiff should establish, either his title by rt producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years. In such suits, courts cannot, ignoring the presumptions available in favour of the government, grant declaratory or injunctive decrees against the government by relying upon one of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted."
32. The Hon'ble Supreme Court in its decision rendered in State of Haryana vs. Mukesh Kumar and others, (2011) 10 SCC 404) pointed out the need to have a fresh look at the law of adverse possession. The law on adverse possession was described as irrational, illogical and wholly disproportionate and extremely harsh for the true owner and a windfall for dishonest person who had illegally taken possession of the property.After referring to the earlier judgments in Hemaji Waghaji vs. Bhikhabhai Khengarbhai (2009) 16 SCC 517 and P.T. Munichikkanna Reddy vs. Revamma (2007) 6 SCC 559, the Hon'ble Supreme Court ::: Downloaded on - 15/04/2017 20:59:02 :::HCHP 19 reiterated the observations therein that the law ought not to .
benefit a person who in 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 of wrongfully taken possession of the property of the true owner.
The Hon'ble Supreme Court expressed its difficulty to rt comprehend why the law should place premium on dishonesty by legitimizing possession of a rank trespasser and compelling the owner to lose its possession only because of his inaction in taking back the possession within limitation. It was observed as follows:
"In our considered view, there is an urgent need of fresh look regarding the law on adverse 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".
33. It is evidently clear from the aforesaid discussion that the petitioner has successfully managed to keep out the true owner from the possession of the land by encroaching upon the same and has enjoyed the usufruct thereof by reaping the benefit of such user and thereby turned the litigation into a fruitful industry.
34. This Court in Manoj Singh's case (supra) while dealing with an identical situation observed as under:
::: Downloaded on - 15/04/2017 20:59:02 :::HCHP 20"30. The petitioner admittedly is squatting over a .
prime property at Shimla that too without paying a penny to its owner and has thereby turned the litigation into a fruitful industry. The Hon'ble Supreme Court in South Eastern Coalfields Limited vs. State of M.P. and others (2003) 8 SCC 648, held as under:
of "28 ......Litigation may turn into a fruitful industry. Though litigation is not gambling yet rt there is an element of chance in every litigation.
Unscrupulous litigants may feel encouraged to approach the courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced. We are, therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the court withholding the release of money had remained in operation."
31. It is therefore the duty of this court to neutralize any unjust enrichment and undeserved gain made by the litigants only on account of keeping the litigation alive. In Indian Council for Enviro- Legal-Action vs. Union of India and others (2011) 8 SCC 161, it is ::: Downloaded on - 15/04/2017 20:59:02 :::HCHP 21 noticed that conduct of the parties is to be taken into .
consideration and it was held as follows:-
"197. The other aspect which has been dealt with in great details is to neutralize any unjust enrichment and undeserved gain made by the litigants. While adjudicating, the courts must of keep the following principles in view:
1. It is the bounden duty and obligation of rt the court to neutralize any unjust enrichment and undeserved gain made by any party by invoking the jurisdiction of the court.
2. When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying. An order of stay cannot be presumed to be conferment of additional right upon the litigating party.
3. Unscrupulous litigants be prevented from taking undue advantage by invoking jurisdiction of the Court.
4. A person in wrongful possession should not only be removed from that place as early as possible but be compelled to pay for wrongful use of that premises fine, penalty and costs. Any leniency would seriously affect the credibility of the judicial system.
5. No litigant can derive benefit from the mere pendency of a case in a court of law.
6. A party cannot be allowed to take any benefit of his own wrongs.
7. Litigation should not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the court.
8. The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts."::: Downloaded on - 15/04/2017 20:59:02 :::HCHP 22
32. In view of the aforesaid discussion, we find no .
merit in this petition and the same is dismissed, so also the pending application (s), if any.
33. The petitioner has illegally deprived the respondents of the possession of the property of which he had no right, or title. He illegally retained the of same for decades together. Therefore, it is the duty of the court to see that such wrong doers are discouraged at every stage and even if he has rt succeeded in prolonging the litigation, then he must suffer the costs of all these years and also bear the expenses of such unwanted and otherwise avoidable litigation. Therefore, the petitioner is burdened with costs, which is assessed at Rs.1,00,000/-."
35. It is not only high time, but it is necessary to arrest and curb immediately such unlawful activity of encroachment over the government lands as the public order is adversely affected by such unlawful activity. It is probably on account of the higher returns from agricultural and horticultural pursuits from the encroached lands that unscrupulous persons have occupied without any semblance of right, vast extents of land belonging to the Government. Therefore, unless all such cases of illegal encroachments are dealt with sternly and swiftly, the evil cannot subside and social injustice will continue to be perpetrated with impunity.
36. It is evidently clear from the aforesaid discussion that this petition not only sans merit, but the intent behind filing this petition is also not bonafide as the only endeavour of the ::: Downloaded on - 15/04/2017 20:59:02 :::HCHP 23 petitioner appears to prolong the litigation so as to enable him .
to reap the benefits from the vast extents of government land illegally encroached by him and thereby convert this litigation into a fruitful industry.
of
37. Accordingly, this petition is dismissed. The pending applications, if any, also stand disposed of.
38. rt However, before parting, it needs to be clarified that the eviction to be carried out by the respondents shall be at the cost of the petitioner and this decision shall also not come in the way of the respondents in claiming any other relief against the petitioner including mesne profits etc. before the competent authority or Court of law.
(Mansoor Ahmad Mir)
Chief Justice
August 8, 2016 (Tarlok Singh Chauhan),
(GR) Judge
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