Himachal Pradesh High Court
Manoj Singh vs Union Of India & Ors on 27 May, 2015
Bench: Chief Justice, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 4087 of 2014.
.
Judgement reserved on: 20.5.2015.
Date of decision: 27.5.2015.
Manoj Singh ...... Petitioner.
Vs.
Union of India & ors. ..... 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? Yes. 1
For the petitioner : Mr. S.D. Sharma, Advocate.
For the respondents : Mr. Ashok Sharma, Assistant Solicitor
General of India.
Tarlok Singh Chauhan, Judge.
The petitioner is aggrieved by the order passed by the Appellate Authority under the Public Premises (Eviction of Unauthorized Occupants Act, 1971) (for short, the Act) whereby it affirmed the order passed by the Estate Officer on 28.11.2011 ordering the eviction of the petitioner from the unauthorized premises.
2. The case of the petitioner is that since 1937 his grand father late Udai Singh had been in possession of the land and property, comprised in khata/ khatauni No 56/72, khasra No. 220, measuring 33.75 sq. meters situate at Shimla. After his death in 1989, the same is possessed by the petitioner.
Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 18:15:32 :::HCHP
3. In 1958 the then Administrator of Union territory of Himachal Pradesh accorded sanction to carry out additions and .
alterations and re-construction of stall. The then Shimla Municipality sanctioned the plan, pursuant to which the grand father of the petitioner carried out extensive additions and alterations in the existing premises in the year 1959.
4. It is the further case of the petitioner that he had been earning his livelihood from the premises in question and had been paying house tax to the Municipal Committee/ Corporation, Shimla.
5. In 1974 the Estate Officer, CPWD issued notice and thereafter initiated proceedings under the Act and the predecessor-in-
interest of the petitioner was ordered to be evicted vide order dated 19.11.1975. On appeal, the order was set-side and the case was remanded back to the Estate Officer, Shimla. It was thereafter only in the year 2005 that petitioner again received a notice under section 4 of the Act and ultimately the petitioner was ordered to be evicted vide order dated 28.11.2011. This order was challenged further before the learned Appellate Authority, who too dismissed the appeal and upheld the order of eviction.
6. The petitioner has challenged this order on the ground that authorities have erred in concluding that petitioner was in unauthorized occupation. It was proved on record that petitioner had become owner of the premises by way of adverse possession and further that the impugned order was not sustainable as the petitioner's right to live had been gravely infringed. The respondents ::: Downloaded on - 15/04/2017 18:15:32 :::HCHP have supported the orders and have prayed for the dismissal of the writ petition.
.
7. The respondents have opposed the petition by filing the reply. The factum of possession of the predecessor-in-interest since the year 1937 has been disputed, rather it has been stated that since the ownership was undisputedly that of the respondents, it had rightly initiated the aforesaid proceedings. It was further averred that the ownership of the respondent was duly supported by the revenue record and once the factum of ownership of the respondents is not disputed then they can take no exception to the lawful orders passed by the competent authority and affirmed by the Appellate Authority.
We have heard the learned counsel for the parties and have gone through the records of the case.
8. At the outset, it may be observed that the claim of the petitioner rests solely on the basis of two letters, dated 2.1.1958 (P-3) and dated 3.1.1959 (Annexure P-4), respectively. The letter dated 2.1.1958 (Annexure P-3) reads thus:-
"No.Sty-25-75/57 HIMACHAL PRADESH ADMINISTRATION SECRETARIAT ADMINISTRATION.
From:
Shri M.S. Jandrotia, Assistant Secretary (SAD) To Himachal Pradesh Administration.
To The Secretary, Simla Municipal Committee, SIMLA.
SUBJECT: CONSTRUCTION OF A STALL.
DATED SIMLA-4, the 2nd JANUARY, 1958.
MEMO An application, dated the 26th December, 1957 alongwith form 'A" and a plan received from Sh. Udey Singh, Hawker, Himachal Pradesh Secretariat building for the ::: Downloaded on - 15/04/2017 18:15:32 :::HCHP construction of a stall are enclosed for necessary action. There is no objection, if permission is accorded by the Municipal Committee to the applicant for the construction of a .
stall at the proposed site.
Sd/-
M.S.Jandrotia, ASSISTANT SECRETARY.
No. Sty- 25.75/57. Dated Simla-4, the 2 nd January, 1958.
1. Copy forwarded to Udey Singh, Hawker Himachal Pradesh Secretariat Building, Simla for information with reference to his application referred to above.
2. All further correspondence on the subject may please be addressed direct to the above officer.
Sd/-
r ASSISTANT SECRETARY."
Whereas the letter dated 3.1.1959 only accords sanction to make certain additions and alterations, re-construction of the stall. These letters are not of much help to the petitioner for the simple reason that respondents are not denying the existence of a stall at the site.
9. The only question to be determined is as to whether the petitioner is in authorized possession of the premises.
10. The respondents in order to prove their ownership examined two witnesses. PW 1 Dev Raj Sharma, Assistant Engineer, CPWD proved on record the copies of the revenue record alongwith the site plan and also the report prepared by the Junior Engineer.
11. PW 2 Hameer Singh is the Junior Engineer, who has stated that he had personally visited the spot and measured the land and prepared the lay out plan. The unauthorized construction was shown by him in the site plan Ex. PW 2/A.
12. While on the other hand the petitioner appeared as RW 1 and claimed that premises were in possession of his predecessor-
::: Downloaded on - 15/04/2017 18:15:32 :::HCHPin-interest ever since 1939 till his death on 15.1.1989 and thereafter it was the petitioner who had been in possession of the premises.
.
13. To the similar effect is the statement of RW 2 Rangeela Ram. RW 3 Hem Chand has proved on record the water connection installed in the premises by the predecessor-in-interest of the petitioner on 17.6.1977.
14. RW 4 Diwan Chand, Taxation Inspector has proved on record that the property was assessed to tax, which are being paid by the petitioner. However, he has stated that as per the revenue record it is the respondent who is the owner of the property.
15. RW 5 Radhay Shyam, Senior Assistant is an official from the HPSEB, who has proved on record the installation of electricity meter in the premises in the name of one of the predecessor-in-interests of the respondents.
16. The statements of RW 1 to RW 5 categorically proved on record the possession of the petitioner, but then who is disputing his possession. Even the respondents are not disputing his possession and it is only on account of his possession that the necessity of filing of the eviction petition under the Act has arisen.
The dispute therefore is only qua the ownership.
17. The petitioner merely on the basis of letters dated 2.1.1958 (Annexure P-3) and 3.1.1959 (Annexure P-4) cannot be held to be the owner of the premises. The petitioner was required to produce contemporaneous records to prove his ownership. The "Public Premises" under the Act has been defined to mean:-
"2 [(e) "public premises" means--::: Downloaded on - 15/04/2017 18:15:32 :::HCHP
(1) any premises belonging to, or taken on lease or requisitioned by, or on behalf of the Central Government, and includes any such premises which have been placed by that Government, whether .
before or after the commencement of the Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 1980 (61 of 1980), under the control of the Secretariat of either House of Parliament for providing residential accommodation to any member of the staff of that Secretariat; (2) any premises belonging to, or taken on lease by, or on behalf of,--
(i) any company as defined in section 3 of the Companies Act, 1956 (1 of 1956), in which not less than fifty-one per cent. of the paid up share capital is held by the Central Government or any company which is a subsidiary (within the meaning of that Act) of the first-mentioned company;
(ii) any corporation (not being a company as defined in section 3 of the Companies Act, 1956 (1 of 1956) r or a local authority) established by or under a Central Act and owned or controlled by the Central Government;
(iii) any University established or incorporated by any Central Act.
(iv) any Institute incorporated by the Institutes of Technology Act, 1961 (59 of 1961);
(v) any Board of Trustees constituted under the Major Port Trusts Act, 1963 (38 of 1963);
(vi) the Bhakra Management Board constituted under section 79 of the Punjab Reorganisation Act, 1966 (31 of 1966), and that Board as and when re- named as the Bhakra-Beas Management Board under sub-section (6) of section 80 of that Act; 3 [***] 4 [(vii) any State Government or the Government of any Union Territory situated in the National Capital Territory of Delhi or in any other Union Territory;
(viii) any Cantonment Board constituted under the Cantonments Act, 1924 (2 of 1924); and] (3) in relation to the 5[National Capital Territory of Delhi]--
(i) any premises belonging to the Municipal Corporation of Delhi, or any Municipal Committee or notified area committee; 3 [***]
(ii) any premises belonging to the Delhi Development Authority, whether such prem ises are in the possession of, or leased out by, the said Authority;] [and] 5 4 [(iii) any premises belonging to, or taken on lease or requisitioned by, or on behalf of any State Government or the Government of any Union Territory;] "
18. The petitioner has set up self contrary case wherein he has firstly tried to establish his lawful ownership and has thereafter attempted to canvass that he has become owner by way of adverse possession.::: Downloaded on - 15/04/2017 18:15:32 :::HCHP
19. It is more than settled that long possession is not necessarily adverse possession. What would constitute adverse .
possession has repeatedly been subject matter of the courts.
However, this concept was dealt in detail by the Hon'ble Supreme Court in P.T. Munichikkanna Reddy and others vs. Revamma and others (2007) 6 SCC 59, wherein, it was held as follows:-
"CHARACTERIZING ADVERSE POSSESSION
5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessoror 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 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.
7. To understand the true nature of adverse possession, Fairweather v St Marylebone Property Co [1962] 2 WLR 1020, [1962] 2 All ER 288 can be considered where House of Lords referring to Taylor v. Twinberrow [1930] 2 K.B. 16, termed adverse possession as a negative and consequential right effected only because somebody else's positive right to access the court is barred by operation of law:
"In my opinion this principle has been settled law since the date of that decision. It formed the basis of the later decision of the Divisional Count in Taylor v. Twinberrow [1930] 2 K.B. 16, in which it was most clearly explained by Scrutton, L.J. that it was a misunderstanding of the legal effect of 12 years adverse possession under the ::: Downloaded on - 15/04/2017 18:15:32 :::HCHP Limitation Acts to treat it as if it gave a title whereas its effect is " merely negative " and, where the possession had been against a tenant, its only operation was to bar his right to claim against the man in possession (see loc. cit. p. 23). I .
think that this statement needs only one qualification: a squatter does in the end get a title by his possession and the indirect operation of the Act and he can convey a fee simple.
If this principle is applied, as it must be, to the Appellant's situation, it appears that the adverse possession completed in 1932 against the lessee of No. 315 did not transfer to him either the lessee's' term or his rights against or has obligations to the landlord who held the reversion.
The appellant claims to be entitled to keep the landlord at bay until the expiration of the term by effluxion of time in 1992: but, if he is, it cannot be because he is the transferee or holder of the term which was granted to the lessee. He is in possession by his own right, so far as it is a right: and it is a right so far as the statutes of limitation which govern the r matter prescribe both when the rights to dispossess him are to be treated as accruing and when, having accrued, they are thereafter to be treated as barred. In other words, a squatter has as much protection as but no more protection than the statutes allow: but he has not the title or estate of the owner or owners whom he has dispossessed nor has he in any relevant sense an estate "commensurate with" the estate of the dispossessed. All that this misleading phrase can mean is that, since his possession only defeats the rights of those to whom it has been adverse, there may be rights not prescribed against, such, for instance, as equitable easements, which axe no less enforceable against him in respect of the land than they would have been against the owners he has dispossessed."
Also see Privy Council's decision in Chung Ping Kwan and Others v. Lam Island Development Company Limited (Hong Kong) [(1997) AC 38] in this regard.
8. Therefore, to assess a claim of adverse possession, two- pronged enquiry is required:
1. Application of limitation provision thereby jurisprudentially "willful neglect" element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.
2. Specific Positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper owner, to the adverse possessor.
Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.
9. It is interesting to see the development of adverse possession law in the backdrop of the status of Right to Property in the 21st Century. The aspect of stronger Property Rights Regime in general, coupled with efficient legal regimes furthering the Rule of Law argument, has redefined the thresholds in adverse possession law not just in India but also by the Strasbourg Court. Growth of Human Rights jurisprudence in recent times has also palpably affected the developments in this regard.
::: Downloaded on - 15/04/2017 18:15:32 :::HCHPNEW CONSIDERATION IN ADVERSE POSSESSION LAW
10. In that context it is relevant to refer to JA Pye (Oxford) Ltd v.
.
United Kingdom [2005] 49 ERG 90, [2005] ECHR 921 wherein the European Court of Human Rights while referring to the Court of Appeal judgment ([2001]EWCA Civ 117, [2001]Ch 804) made the following reference:
"Lord Justice Keene took as his starting point that limitation periods were in principle not incompatible with the Convention and that the process whereby a person would be barred from enforcing rights by the passage of time was clearly acknowledged by the Convention (Convention for the Protection of Human Rights and Fundamental Freedoms). This position obtained, in his view, even though limitation periods both limited the right of access to the courts and in some circumstances had the effect of depriving persons of property rights, whether real or personal, or of damages:
there was thus nothing inherently incompatible as between r the 1980 Act and Article 1 of the Protocol."
11. This brings us to the issue of mental element in adverse possession cases-intention.
1. Positive Intention
12. The aspect of positive intention is weakened in this case by the sale deeds dated 11.04.1934 and 5.07.1936. Intention is a mental element which is proved and disproved through positive acts. Existence of some events can go a long way to weaken the presumption of intention to dispossess which might have painstakingly grown out of long possession which otherwise would have sufficed in a standard adverse possession case.. The fact of possession is important in more than one ways: firstly, due compliance on this count attracts limitation act and it also assists the court to unearth as the intention to dispossess.
13. At this juncture, it would be in the fitness of circumstances to discuss intention to dispossess vis-`-vis intention to possess. This distinction can be marked very distinctively in the present circumstances.
14. Importantly, intention to possess can not be substituted for intention to dispossess which is essential to prove adverse possession. The factum of possession in the instant case only goes on to objectively indicate intention to possess the land. As also has been noted by the High Court, if the appellant has purchased the land without the knowledge of earlier sale, then in that case the intention element is not of the variety and degree which is required for adverse possession to materialize.
15. The High Court observed:
"It is seen from the pleadings as well in evidence that the plaintiff came to know about the right of the defendants', only when disturbances were sought to be made to his possession."
16. In similar circumstances, in the case of Thakur Kishan Singh (dead) v. Arvind Kumar [(1994) 6 SCC 591] this court held:
::: Downloaded on - 15/04/2017 18:15:32 :::HCHP"5. As regards adverse possession, it was not disputed even by the trial court that the appellant entered into possession over the land in dispute under a licence from the respondent for purposes of brick-kiln. 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 licencee 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 permissible possession into adverse possession. Apart from it, the Appellate Court has gone into detail and after considering the evidence on record found it as a fact that the possession of the appellant was not adverse."
(emphasis supplied)
17. The present case is one of the few ones where even an unusually long undisturbed possession does not go on to prove the intention of the adverse possessor. This is a rare circumstance, which Clarke LJ in Lambeth London Borough Council v Blackburn (2001) 82 P & CR 494, 504 refers to:
"I would not for my part think it appropriate to strain to hold that a trespasser who had established factual possession of the property for the necessary 12 years did not have the animus possidendi identified in the cases. I express that view for two reasons. The first is that the requirement that there be a sufficient manifestation of the intention provides protection for landowners and the second is that once it is held that the trespasser has factual possession it will very often be the case that he can establish the manifested intention. Indeed it is difficult to find a case in which there has been a clear finding of factual possession in which the claim to adverse possession has failed for lack of intention."
(emphasis supplied)
18. On intention, The Powell v. Macfarlane (1977) 38 P & CR (Property, Planning & Compensation Reports) 452 _ 472 is quite illustrative and categorical, holding in the following terms:
"If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ('animus possidendi')."
** ** ** If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.
** ** ** In my judgment it is consistent with principle as well as authority that a person who originally entered another's land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was ::: Downloaded on - 15/04/2017 18:15:32 :::HCHP equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner.
** ** **
.
What is really meant, in my judgment, is that the animus possidendi involves the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow."
19. Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving (willful) or omission (negligent or otherwise) of right to defend or care for the integrity of property on the part of the paper owner of the land. Adverse possession statutes, like other statutes of limitation, rest on a public policy that do not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence.
20. While dealing with the aspect of intention in the Adverse possession law, it is important to understand its nuances from varied angles.
21. Intention implies knowledge on the part of adverse possessor. The case of Saroop Singh v. Banto and Others [(2005) 8 SCC 330] in that context held:
"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 defendants possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak)
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 Mohd. Mohd. Ali v. Jagadish Kalita, SCC para 21.)"
22. A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by this Court in Karnataka Board of Wakf v. Government of India and Others [(2004) 10 SCC 779] in the following terms:
"_Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are 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.::: Downloaded on - 15/04/2017 18:15:32 :::HCHP
Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."
.
23. It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper owner.
24. In Narne Rama Murthy v. Ravula Somasundaram and Others [(2005) 6 SCC 614], this Court held:
"However, in cases where the question of limitation is a mixed question of fact and law and the suit does not appear to be barred by limitation on the face of it, then the facts necessary to prove limitation must be pleaded, an r issue raised and then proved. In this case the question of limitation is intricately linked with the question whether the agreement to sell was entered into on behalf of all and whether possession was on behalf of all. It is also linked with the plea of adverse possession. Once on facts it has been found that the purchase was on behalf of all and that the possession was on behalf of all, then, in the absence of any open, hostile and overt act, there can be no adverse possession and the suit would also not be barred by limitation. The only hostile act which could be shown was the advertisement issued in 1989. The suit filed almost immediately thereafter."
(emphasis supplied)
25. The test is, as has been held in R.V. Oxfordshine County Council :
"... Bright v. Walker (1834) 1 Cr. M. & R. 211, 219, "openly and in the manner that a person rightfully entitled would have used it. . ." The presumption arises, as Fry J. said of prescription generally in Dalton v. Angus (1881) 6 App.Cas. 740, 773, from acquiescence.
26. The case concerned interpretation of section 22(1) of the Commons Registration Act 1965. Section 22(1) defined "town or village green" as including "...land _ on which the inhabitants of any locality have indulged in [lawful] sports and pastimes as of right for not less than 20 years."
27. It was observed that the inhabitants' use of the land for sports and pastimes did not constitute the use "as of right". The belief that they had the right to do so was found to be lacking. The House held that they did not have to have a personal belief in their right to use the land. The court observed:
"....[the words 'as of right] import the absence of any of the three characteristics of compulsion, secrecy or licence_ 'nec vi, nec clam, nec precario', phraseology borrowed from the law of easements....."::: Downloaded on - 15/04/2017 18:15:32 :::HCHP
28. Later in the case of Beresford, R (on the application of) v. City of Sunderland [2003] 3 WLR 1306, [2004] 1 All ER 160 same test was referred to.
.
29. Thus the test of nec vi, nec clam, nec precario i.e., "not by force, nor stealth, nor the license of the owner" has been an established notion in law relating to the whole range of similarly situated concepts such as easement, prescription, public dedication, limitation and adverse possession.
30. In Karnataka Wakf Board (Supra), the law was stated, thus:
"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 r 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 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."
2. Inquiry into the particulars of Adverse Possession
31. Inquiry into the starting point of adverse possession i.e. dates as to when the paper owner got dispossessed is an important aspect to be considered. In the instant case the starting point of adverse possession and Other facts such as the manner in which the possession operationalized, nature of possession: whether open, continuous, uninterrupted or hostile possession - have not been disclosed. An observation has been made in this regard in S.M. Karim v. Mst. Bibi Sakina [AIR 1964 SC 1254]:
"Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became ::: Downloaded on - 15/04/2017 18:15:32 :::HCHP adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea. Long .
possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea."
(emphasis supplied)
32. Also mention as to the real owner of the property must be specifically made in an adverse possession claim.
33. In Karnataka Wakf Board (Supra), it is stated:
"12. Plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. 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 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:
"4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right there under 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 agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."
(emphasis supplied) "3. New Paradigm to Limitation Act
34. The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned: once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession. The ingredients of adverse possession have succinctly been stated by this Court in S.M. Karim v. Mst. Bibi Sakina [AIR 1964 SC 1254] in the following terms:
"... Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found."::: Downloaded on - 15/04/2017 18:15:32 :::HCHP
[See also M. Durai v. Madhu and Others 2007 (2) SCALE 309]
35. The aforementioned principle has been reiterated by this Court in Saroop Singh v. Banto and Others [(2005) 8 SCC 330] .
stating:
"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 defendants possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak)
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 Mohd. Mohd. Ali v. Jagadish Kalita, SCC para 21.)"
36. In Mohammadbhai Kasambhai Sheikh and Others v. Abdulla Kasambhai Sheikh [(2004) 13 SCC 385], this Court held:
"But as has been held in Mahomedally Tyebally v. Safiabai the heirs of Mohammedans (which the parties before us are) succeed to the estate in specific shares as tenants-in-common and a suit by an heir for his/her share was governed, as regards immovable property, by Article 144 of the Limitation Act, 1908. Article 144 of the Limitation Act, 1908 has been materially re-enacted as Article 65 of the Limitation Act, 1963 and provides that the suit for possession of immovable property or any interest therein based on title must be filed within a period of 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. Therefore, unless the defendant raises the defence of adverse possession to a claim for a share by an heir to ancestral property, he cannot also raise an issue relating to the limitation of the plaintiffs claim."
37. The question has been considered at some length recently in T. Anjanappa and Others v. Somalingappa and Another [(2006) 7 SCC 570], wherein it was opined :
"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 18:15:32 :::HCHP20. It has to be remembered that whenever 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 upper hand to the encroachers, unauthorized occupants or land grabbers.
21. 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 anot her (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 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 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 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 ::: Downloaded on - 15/04/2017 18:15:32 :::HCHP 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/shebaits/employees. Instances are many r 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 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 is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation."
22. Reverting to the facts, it would be seen that petitioner in response to the notice issued under the Act filed his reply, wherein he set up the plea of so called ownership in the following manner:-
"That the contents of notice pertaining to alleged un- authorised occupation of Respondent with regard to Khasra No. 220, measuring 33.75 sq. meters, are denied as wrong and incorrect, it is submitted that grant father of Respondent late Udai Singh had been in possession of premises in question since the year Nineteen hundred thirty seven (1937). The ownership of predecessor of the Respondent with regard to premises in question was duly acknowledged by the concerned government authorities from time to time. Accordingly the predecessor of present Respondent made extensive additions and alterations in the premises presently in occupation of the Respondent with the due approval of then Municipal body in the year 1959-60. Since the possession of predecessor/s of Respondent dates back to time before independence, with regard to premises in question, the ::: Downloaded on - 15/04/2017 18:15:32 :::HCHP ownership of the predecessor/ s of the Respondent has been much prior to time when the premises in question came under control of concerned governments i.e. Union territory Himachal Pradesh .
government and the Central government."
23. In the later part of the reply, he set up the plea in the following manner:-
"In the alternative, it is submitted that the predecessor/s of Respondent had become owner of the premises in question by way of adverse possession and that stand of the predecessor of Respondent his grandfather Sh. Udai Singh, is duly established in the judgement by the Appellate Authority Simla division, Himachal Pradesh in Case No. CHA-s/ 14 of 1975, dt. 29.5.1976 (copy enclosed);
......... The respondent has been enjoying/ using the premises in question peacefully, openly and his hostile possession with regard to premises in question, was never objected to by any quarter whatsoever......"
24. 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.
While on the other hand when the plea of adverse possession is projected inherent is the plea that someone else is the ownership 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.
::: Downloaded on - 15/04/2017 18:15:32 :::HCHP25. It was 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.
26. 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 in fact became adverse.
This question assumes importance as the petitioner initially had set up a lawful title in himself.
27. In Om Parkash & ors. vs. Gian Chand & ors. 2014(2) Him.L.R. 1071 one of us (Tarlok Singh Chauhan, J) dealt in detail with the question of adverse possession particularly when the defendant therein had not spelt out any 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.
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 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 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.::: Downloaded on - 15/04/2017 18:15:32 :::HCHP
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 r 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 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."
12. This court in Brij Mohan Sood vs. Parshotam Singh and others 2014(1) Him. L.R. 556, has held as follows:-
"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 ::: Downloaded on - 15/04/2017 18:15:32 :::HCHP 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 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 defendants have claimed themselves to be the owners of the suit property and thus the plea of adverse possession is not available to them . "
13. 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 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."
::: Downloaded on - 15/04/2017 18:15:32 :::HCHP28. It is more than settled that mere possession for a long time does not result in converti ng permissive possession into adverse .
possession.
29. The learned counsel for the petitioner has argued that the impugned order is bad in law as the right to live has been gravely infringed. This contention is absolutely fallacious as nobody much-
less an encroacher has fundamental right under Article 21 of the Constitution of India to carry on business at the place of his choice and convenience. The right to carry on business cannot be absolute but has to be limited and subservient to overall public interest. If the right of the petitioner and the similar situated persons is conceded, then they could hold the society to ransom by squatting on the center of busy thoroughfares thereby paralyzing all civic life.
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:
"28 ......Litigation may turn into a fruitful industry. Though litigation is not gambling yet 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 ::: Downloaded on - 15/04/2017 18:15:32 :::HCHP 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 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 keep the following principles in view:
1. It is the bounden duty and obligation of 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.::: Downloaded on - 15/04/2017 18:15:32 :::HCHP
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 advant age on a party by delayed action of courts."
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 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 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/-.
(Mansoor Ahmad Mir), Chief Justice.
May 27, 2015. ( Tarlok Singh Chauhan ),
(Hem) Judge.
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