Himachal Pradesh High Court
Huma Nand & Ors vs Dharam Singh And Others on 13 June, 2023
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 635/2008 Decided on: 13.06.2023 .
Huma Nand & Ors. ....Appellants
Versus
Dharam Singh and others ....Respondents.
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Coram Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting?1 For the appellants : Mr. V.S. Chauhan, Sr. Advocate with Mr. Ajay Singh Kashyap, Advocate.
For the respondents : Mr. Romesh Verma, Sr.
r Advocate with Mr. Hitesh
Thakur, Advocate, for
respondent No.1.
Jyotsna Rewal Dua, J
Respondent No.1 was the plaintiff before the learned Trial Court. He filed the civil suit for possession of the suit land on the strength of his title. Original contesting defendant No.1 (predecessor-in-interest of the present appellants) took the defence of adverse possession over the suit land. Civil suit was decreed by both the learned Courts below. Aggrieved, the successors of defendant No.1 have come up in the instant regular second appeal. This 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 14/06/2023 20:31:06 :::CIS 2appeal was admitted on 06.05.2010 on the following substantial question of law:-
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"1. Whether the findings of the Court below are a result of complete misreading, misinterpretation of the evidence and material on record and against the settled position of law?"
2. Heard learned Senior Counsel on both sides on the above substantial question of law. My observations are as under:-
2(i) Ownership over suit land.
Plaintiff's ownership over the suit land is amply demonstrated by the documentary evidence available on record. Ext.P1 is the copy of Nakal Khatauni of old Khasra No. 2826 min, new No. 284, prepared during the settlement. Plaintiff is depicted therein as owner of the suit land alongwith proforma defendants. Ext.P2 is the copy of jamabandi dated 02.08.1994 reflecting plaintiff as co-owner of the suit land alongwith proforma defendants. Ext.P3 is Khasra Girdawari for the years 1983-84, wherein again name of plaintiff figures in ownership column. Ext.P4 is Khasra Girdawari for the year 1992, wherein name of the plaintiff is under the head of ownership column. All documents on record reflect the plaintiff as owner of the suit land. In fact this factual position has not even been ::: Downloaded on - 14/06/2023 20:31:06 :::CIS 3 disputed by the learned Senior Counsel for the appellants/defendants. The factual findings returned by .
both the learned Courts below that plaintiff is owner of the suit land do not call for any interference.
2(ii) Adverse possession 2(ii)(a) The case of the plaintiff was that he was owner in possession of the suit land. He had planted apple orchard over the suit land but in the month of June 1992, defendant No.1 forcibly encroached upon the suit land giving cause of action to the plaintiff to institute the civil suit seeking possession of the same on the strength of his title.
2(ii)(b) In his written statement, defendant No.1 claimed that he was owner of adjoining land bearing Khasra Nos.285-286. He was occupying the suit land for the last 53 years. His possession over the suit land was open, hostile and adverse against the true owner. It was stand of the defendant that his such possession had been duly recorded in the revenue record. To sum up, defendant No.1 took the plea of adverse possession over the suit land.
2(iii) Before proceeding further with the case, it will be appropriate at this stage to first take into consideration the relevant legal position.::: Downloaded on - 14/06/2023 20:31:06 :::CIS 4
In (2004) 10 SCC 779 (Karnataka Board of Wakf Vs. Government of India and Ors.), the Hon'ble .
Apex Court reiterated the well settled principles that a party claiming adverse possession must prove that his possession 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. Such possession must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.
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 such like cases. It was further held that plea of adverse possession is not a pure question of law but a blended one of fact and law. 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. It was also held that a person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true ::: Downloaded on - 14/06/2023 20:31:06 :::CIS 5 owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.
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To the same effect is the law laid down in (2006) 7 SCC 570 (T. Anjanappa and Ors. Vs. Somalingappa and Anr.), wherein it was held that the possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action.
2(iv) In the background of above legal position, facts of instant case may now be examined viz-a-viz the plea of adverse possession set up by the defendant.
Unauthorized possession of the suit land by the defendant in the year 1992 is the pleaded case of the plaintiff. As already noticed above, the plaintiff has been shown to be owner as well as in possession of the suit land in the revenue record prior to the year 1992. This position is not disputed by learned Senior Counsel for the appellants. Defendant No.1's name figured in the column of possession over the suit land for the first time in Ext.P1 i.e. copy of Nakal Khatauni of the suit land prepared during the settlement on 23.06.1993. It is the case of the parties that ::: Downloaded on - 14/06/2023 20:31:06 :::CIS 6 the settlement took place around the years 1990-91. This leads credence to the testimony of the plaintiff, who as PW-
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1 stated that the defendant had encroached over the suit land around the year 1992. All documents prior to this date show the plaintiff to be not only the owner but also in possession of the suit land. Presumption of truth is attached to the revenue entries until and unless cogently rebutted. In the instant case but for the self serving stand of the defendant, there is no other cogent evidence on record, be it oral or documentary to establish that the defendant was even in possession of the suit land prior to the year 1992 much less to show that the said possession was adverse. In fact while stepping in the witness box, defendant No.1 himself stated that he did not even know as who was the actual owner of the suit land. That being the admitted position, the claim of ownership by way of adverse possession is bound to fail. Possession and adverse possession are not the same in the eyes of law. The defendant who did not even know the identity of the real owner of the suit land, cannot claim to be owner of the same by way of adverse possession.
3. Substantial question of law is accordingly answered against the appellants.
::: Downloaded on - 14/06/2023 20:31:06 :::CIS 74. Both the learned Courts below did not commit any error either on facts or in law in decreeing the suit of .
the plaintiff for possession of the suit land. There is no infirmity in the impugned judgments and decrees passed by the learned Courts below. Accordingly, the present appeal being devoid of merit, is dismissed. Pending application(s), if any, also stand disposed of accordingly.
13th June 2023
r to Jyotsna Rewal Dua
Judge
(rohit)
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