Himachal Pradesh High Court
Shri Roshan Lal Son Of Shri Khajan vs Government Of on 26 August, 2022
Author: Satyen Vaidya
Bench: Satyen Vaidya
1
REPORTABLE/NON-REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 26th DAY OF AUGUST, 2022
BEFORE
HON'BLE MR. JUSTICE SATYEN VAIDYA
REGULAR SECOND APPEAL No. 657 of 2008 a/w CROSS
OBJECTIONS No. 259 of 2009
Between:
SHRI ROSHAN LAL SON OF SHRI KHAJAN
SINGH, HOUSE NO. 254, WARD NO.4
(OPPOSITE VETERINARY HOSPITAL),
VILLAGE SALAH, PO SUNDER NAGAR-1,
TEHSIL SUNDERNAGAR, DISTRICT MANDI,
H.P.-175018.
........PLAINTIFF-APPELLANT
( BY MR. BHUPINDER GUPTA, SR. ADVOCATE
WITH MS. RINKI KASHMIRI, ADVOCATE)
AND
1.SHRI JAGAT SINGH SON OF SHRI KRISHAN
SINGH.
2. SMT. BRINDA WIFE ]
3.SHRI PANKAJ, SON ]
4. SHRI ATUL, SON ]OF SHRI JAGAT SINGH
ALL RESIDENTS OF VILLAGE SALAH, PO
SUNDER NAGAR-I, TEHSIL SUNDERNAGAR,
DISTRICT MANDI, H.P-175018.
......DEFENDANTS/RESPONDENTS
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5.SHRI KULDEEP SINGH (SINCE
DECEASED) THROUGH HIS LEGAL
REPRESENTATIVES.
.
(A) SHRI SURESH SEN( SINCE
DECEASED) THROUGH HIS LEGAL
REPRESENTATIVES;
(I) SHRI CHIRAG SEN, SON ]
(II) SHRI MUNISH SEN, SON ]
(III) SMT. SARITA SEN, WIFE ]
OF LATE SHRI SURESH SEN
ALL RESIDENTS OF VILLAGE SALAH PO
SUNDERNAGAR-I, TEHSIL
SUNDERNAGAR DISTRICT MANDI, H.P.-
175018.
(B) SHRI KAMAL KISHORE, SON ]
(C) SHRI LALIT SEN, SON ]
(D) SMT. CHAMPA DEVI, WIDOW]
OF SHRI KULDEEP SINGH.
ALL RESIDENTS OF VILLAGE SALAH, PO
SUNDER NAGAR-I, TEHSIL
SUNDERNAGAR, DISTRICT MANDI, H.P.-
175018.
6.SHRI AMARDEEP SINGH, SON OF SHRI
JAI SINGH, RESIDENT OF VILLAGE
SALAH, PO SUNDER NAGAR-1, TEHSIL
SUNDER NAGAR, DISTRICT MANDI, H.P.
175018.
7.SMT. RAM DEI (SINCE DECEASED)
NAME ORDERED TO BE DELETED VIDE
ORDER DATED 10.09.2012 PASSED BY
THE HON'BLE COURT.
8. SHRI RAM LAL, SON ]
9. SHRI JAGDISH CHAND, SON ]
10. SHRI MAYA SINGH, SON ]
11. SHRI BALAK RAM, SON ]
12. SHRI BHOOP SINGH, SON ]
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13. SHRI AMAR SINGH, SON ]
14. SMT. KAMLI DEVI, DAUGHTER ]
15. SMT. NIRMALA DEVI, DAUGHTER]
OF SHRI HUKAM CHAND.
.
ALL RESIDENT OF VILLAGE JADYALA
(HARIPUR), PO SUNDER NAGAR-I TEHSIL
SUNDERNAGAR, DISTRICT MANDI
H.P.174401.
16. SHRI AMAR SINGH, SON]
17. SHRI PIAR SINGH, SON] OF SHRI
KHAJAN SINGH
PO SUNDERNAGAR-I
SUNDERNAGAR,
H.P.175018.
r to
BOTH RESIDENTS OF VILLAGE SALAH,
DISTRICT
TEHSIL
MANDI,
18. SMT. RUKMANI(SINCE DECEASED0
NAME ORDERED TO BE DELETED VIDE
ORDER DATED 10.09.2012 PASSED BY
THE HON'BLE COURT.
19. SMT. DURGI DEVI, WIFE OF SHRI
SALIG RAM, RESIDENT OF VILLAGE
SALNOO, TEHSIL SADAR, DISTRICT
BILASPUR, H.P.
20. SMT. KAMLA DEVI, WIDOW OF SHRI
BISHAN SINGH, CHANDEL, RESIDENT OF
VILLAGE AND PO GHAMANI VIA
KANDRAUR, TEHSIL GHUMARWIN,
DISTRICT BILASPUR, H.P.
........PROFORMA DEFENDANTS-PROFORMA RESPONDENTS
(BY MR. SANJEEV KUTHIALA, SR. ADVOCATE
WITH MS. ANAIDA KUTHIALA, ADVOCATE, FOR
R-1 TO 4/CROSS-OBJECTORS)
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4
CROSS OBJECTIONS No. 259 of 2009
Between
.
1.SHRI JAGAT SINGH SON OF SHRI KRISHAN
SINGH.
2.SMT. BRINDA WIFE ]
3.SHRI PANKAJ, SON ]
4.SHRI ATUL, SON ]OF SHRI JAGAT SINGH
5.SH. KULDEEP SINGH, S/O LATE SH. JAI SINGH.
(A) SURESH SEN, SO LATE SH. KULDEEP
SINGH (SINCE DECEASED THROUGH HIS
LR'S)
(I)SMT. SARITA, WIDOW OF LATE SH.
SURESH SAIN.
(II) SH. MUNISH, S/O LATE SH. SURESH
SAIN.
(III) SH. CHIRAG, S/O LATE SH. SURESH
SAIN.
(IV) SMT. CHAMPA DEVI, MOTHER OF
LATE SH. SURESH SAIN.
ALL RESIDENTS OF VILLAGE SALAH, PO
SUNDER NAGAR-I, TEHSIL SUNDERNAGAR,
DISTRICT MANDI, H.P.-175018.
(b) KAMAL KISHORE, S/O LATE SH.
KULDEEP SINGH.
(C ) LALIT SEN, S/O LATE SH. KULDEEP
SINGH
(D) SMT. CHAMPA DEVI, WIDOW OF
LATE SH. KULDEEP SINGH.
6.SHRI AMARDEEP SINGH, S/O LATE SH. JAI
SINGH
7.SMT. RAM DEI, WIDOW OF LATE SH. JAI
SINGH.
ALL R/O VILLAGE SALAH, POST OFFICE
SUNDERNAGAR-I TEHSIL SUNDERNAGAR,
DISTRICT MANDI, H.P.
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5
....CROSS OBJECTORS/RESPONDENTS/APPLICANTS
8. SHRI RAM LAL, SON ]
9. SHRI JAGDISH CHAND, SON ]
.
10. SHRI MAYA SINGH, SON ]
11. SHRI BALAK RAM, SON ]
12. SHRI BHOOP SINGH, SON ]
13. SHRI AMAR SINGH, SON ]
14. SMT. KAMLI DEVI, DAUGHTER ]
15. SMT. NIRMALA DEVI, DAUGHTER]
OF SHRI HUKAM CHAND.
ALL RESIDENTS OF VILLAGE JADYALA
(HARIPUR), PO SUNDER NAGAR-I TEHSIL
SUNDERNAGAR, DISTRICT MANDI H.P.
16. SHRI AMAR SINGH, SON]
17. SHRI PIAR SINGH, SON] OF LATE
SHRI KHAJAN SINGH
18. SMT. RUKMANI, WIDOW OF LATE
SH. KHAJAN SINGH
(RESPONDENTS 16 TO 18, R/O VILLAGE
SALAH, POST OFFICE SUNDERNAGAR-I,
TEHSIL SUNDERNAGAR, DISTRICT
MANDI, H.P.
19. SMT. DURGI DEVI, WIFE OF SHRI
SALIG RAM, RESIDENT OF VILLAGE
SALNOO, TEHSIL SUNDERNAGAR,
DISTRICT MANDI, H.P.
20. SMT. KAMLA DEVI, WIDOW OF SHRI
BISHAN SINGH, CHANDEL, RESIDENT OF
VILLAGE AND PO GHAMANI VIA
KANDRAUR, TEHSIL GHUMARWIN,
DISTRICT BILASPUR, H.P.
........PROFORMA RESPONDENTS/DEFENDANTS
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(BY MR. SANJEEV KUTHIALA, SENIOR
ADVOCATE, WITH MS. ANAIDA KUTHIALA,
ADVOCATE, FOR R-1 TO 4/CROSS
OBJECTORS)
.
AND
SHRI ROSHAN LAL SON OF SHRI KHAJAN
SINGH, HOUSE NO. 254, WARD NO.4
(OPPOSITE VETERINARY HOSPITAL),
VILLAGE SALAH, PO SUNDER NAGAR-1,
TEHSIL SUNDERNAGAR, DISTRICT MANDI,
H.P.-175018.
........NON-CROSS OBJECTOR/APPELLANT/NON-APPLICANT
( BY MR. BHUPINDER GUPTA, SR. ADVOCATE
WITH MS. RINKI KASHMIRI, ADVOCATE)
RESERVED ON : 22.08.2022
DECIDED ON : 26.08.2022
This appeal coming on for pronouncement of
judgment this day, this Court passed the following:
JUDGMENT
Appellant assails the judgment and decree dated 30.09.2008, passed by learned Presiding Officer, Fast Track Court, Mandi, District Mandi, H.P., in Civil Appeal No. 11 of 2007, whereby the appeal of the appellant has been dismissed by affirming the judgment and decree dated 12.10.2007, passed by learned Civil ::: Downloaded on - 26/08/2022 20:05:55 :::CIS 7 Judge( Sr. Division), Sundernagar, District Mandi, H.P., in Civil Suit No. 51 of 1997.
.
2. Parties hereafter shall be referred to by the same status as they held before learned Trial Court. Appellant herein was the plaintiff and respondents herein were the defendants before the learned Trial Court.
3. Plaintiff filed a suit for possession of land measuring 56 sq. meters as entered in jamabandi for the year 1990-1991 of Muhal Pungh/26/7, Tehsil Sundernagar, District Mandi, H.P and described as Khewat No. 43, Min Khatauni No.102, Khasra No. 1635( here-in-after to be referred as the 'suit land' ) by way of demolition of boundary wall illegally constructed by the defendants thereon in May, 1991. Plaintiff claimed the ownership of suit land alongwith proforma defendants No. 16 to 20. It was averred in the plaint that possession of the suit land was with plaintiff and proforma defendants No. 16 to 20 till the month of April, 1991. In May 1991, defendants taking benefit of the absence of plaintiff and his brothers from the suit land, raised a wall enclosing the suit land from its front as well as southern side. As per plaintiff, a request was made to defendants to remove the wall and not to interfere in ::: Downloaded on - 26/08/2022 20:05:55 :::CIS 8 the possession of plaintiff and proforma defendants No. 16 to 20 and also to restore the suit land in its original position but remained .
unsuccessful. Plaintiff could not institute the suit till 1997 as he was posted at far off stations out of his home district.
4. It was also averred in the plaint that though proforma defendants No. 5 to 7 have also been shown to be co-owners in the suit land alongwith plaintiff and proforma defendants No. 16 to 20, but in partition proceedings the suit land has been allotted in favour of the plaintiff and proforma defendants No. 16 to 20 exclusively.
5. Land comprised in Khasra No. 1636 was allotted to one of the co-owners Charan Dass and others, who further sold the said land to late Sh. Hukam Chand, father of proforma defendants No. 8 to 15. Sh. Hukam Chand constructed a shop on Khasra No. 1636 and subsequently sold the said shop alongwith land comprised in Khasra No. 1636 in favour of the predecessor-in-
interest of defendants No. 1 and 2 including defendant No. 2 himself. Defendant No. 1 purchased the share of Khasra No. 1636 in the shape of shop from Sh. Kahan Singh etc. on 23.02.1989 being 1/3rd share measuring 48 sq. meters. As per plaintiff, ::: Downloaded on - 26/08/2022 20:05:55 :::CIS 9 proforma defendants No. 5 to 7 never raised any objection against the sale of this Khasra number by the predecessor-in-interest of .
plaintiff and proforma defendants No. 16 to 20 in favour of Charan Dass and they never exerted their right on the suit land. Proforma defendants No. 8 to 15 have been arrayed as proforma defendants since the name of their father is recorded in revenue records as one of the person in possession of the suit land. This entry is stated to be wrong neither the proforma defendants No. 8 to 15 nor their predecessor-in-interest ever remained in possession of the suit land.
6. Defendants No. 1 to 7 contested the suit of the plaintiff.
In the joint written statement filed on behalf of the said defendants preliminary objections with respect to limitation, locus-standi of plaintiff to file the suit and estoppel were raised. On merits, the averments made in the plaint were denied in generality. However, a specific plea was raised, whereby continuance, open, hostile and exclusive possession of the suit land was claimed by the defendants since the date of its purchase i.e. 06.09.1974. It was alleged that the aforesaid possession of defendants has continued for more than twelve years and as such they have perfected the ::: Downloaded on - 26/08/2022 20:05:55 :::CIS 1 title over the suit land by way of adverse possession. Defendants also claimed to have constructed their septic tank over the suit land .
besides having laid underground sewerage and water pipe lines.
The only passage available to Khasra No. 1636 was also claimed through the suit land. It was further claimed by the defendants that they had used the suit land as their courtyard (Sehan) and for that purpose had constructed a cement floor thereon. In alternative, the plea of irrevocable license was also raised by the defendants. The allegation of plaintiff with respect to construction of wall in the year 1991 was specifically denied. It was alleged that the wall was constructed much prior to the year 1991 and such fact was within the knowledge of the plaintiff.
7. In their written statement, the defendants also raised a plea that proforma defendants No. 5 to 7 were recorded co-owners of the suit land alongwith plaintiff and proforma defendants No. 16 to 20, however, the exclusive possession was claimed by defendants No. 1 to 4. They maintain the plea of accusation of title over the suit land by adverse possession as against the plaintiff, proforma defendants No. 5 to 7 and 16 to 20.
It was submitted in the written statement that previously the suit ::: Downloaded on - 26/08/2022 20:05:55 :::CIS 1 land and the land comprised in Khasra No. 1636 was in possession of S/Sh. Roshan Lal, Charan Dass, S/o Sh. Sri Ram .
from 1959 to April 1967. On 07.04.1967, Sh. Hukam Chand, S/o Sh. Jawahar, came into possession of the suit land together with land comprised in Khasra No. 1636, who had constructed a house on Khasra No. 1636 and used Khasra No. 1635 as Sehan till 1974 where after the suit land was in possession of the defendants.
8. In replication filed on behalf of the plaintiff averments made in the plaint were reiterated and the contents of the written statement were denied.
9. On the basis of pleadings of the parties, learned Trial Court framed the following issues:-
1. Whether plaintiff and proforma defendants are possessing the suit land as owners as alleged?
.....OPP
2. Whether defendants have raised wall over the suit land in illegal manner as alleged?
......OPP
3. Whether suit is not within limitation?
.......OPD
4. Whether plaintiff has no locus-standi to file the present suit?
......OPD
5. Whether plaintiff is estopped by his acts and conduct to file the present suit?
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6. Whether defendants have become owner of the suit land by way of adverse possession as alleged?
.
........OPD
7. Whether in the alternate, defendants are irrevocable licencee over the suit land as alleged?
........OPD
8. Relief.
10. Issue nos. 1,2,4,5 and 7 were decided in negative and issue nos. 3 and 6 were decided in affirmative. Defendants were held to have perfected their title over the suit land by way of adverse possession. The suit of the plaintiff was held to be beyond limitation. Accordingly, the suit was dismissed.
11. In first appeal, learned Lower Appellate Court reversed the findings on issue no.6. It was held that defendants had failed to prove the perfection of title over the suit land by way of adverse possession. Findings on issue no. 7 were also reversed and it was held that the plaintiff had impliedly created an irrevocable license in favour of the defendants and in view of such findings, the dismissal of suit was maintained.
12. I have heard learned counsel for the parties and have also gone through the records.
::: Downloaded on - 26/08/2022 20:05:55 :::CIS 113. Mr. Bhupinder Gupta, learned Senior Advocate, representing the plaintiff, raised the contentions that once learned .
Lower Appellate Court had reversed the findings on issue no.6, the suit of the plaintiff for decree of possession should have been decreed as the title of the plaintiff was not in dispute. He further submitted that defendants had miserably failed to plead and prove necessary ingredients for proving perfection of title by way of adverse possession. Further, challenge has been laid to the findings recorded by the learned Lower Appellate Court on issue no.7 being without any material on record.
14. On the other hand, defendants have filed their cross-objections and have also challenged the findings recorded by learned Lower Appellate Court on issue no.6. Mr. Sanjeev Kuthiala, learned Senior Advocate, representing defendants has contended that defendants had proved accusation of title on suit land by way of adverse possession and has thus, supported the findings recorded by the learned Trial Court on issue no.6. He has further contended that in alternative plea of the defendants with respect to irrevocable license was also duly proved. On these submissions, he prayed for dismissal of the appeal.
::: Downloaded on - 26/08/2022 20:05:55 :::CIS 115. The appeal was admitted on the following substantial questions of law:-
.
1. When the Trial Court held defendants to have become owners of the suit land by adverse possession, which findings have been set aside by the Lower Appellate Court specifically, have not Lower Appellate Court acted in erroneous and perverse manner to non suit the plaintiff on the ground that no tatima of the disputed property is filed for the reliefs claimed, by ignoring that suit was for recovery of possession of a whole number having specified area?
2. Whether both the Courts below have committed grave illegality and irregularity in recording erroneous and perverse findings that suit of the plaintiff was barred by limitation? Are not such findings the result of misunderstanding and misapplying correct provisions of Limitation Act.?
3. When the Trial Court did not hold the status of defendants to be that of a licencee, which plea was taken in the alternative invoking provisions of Section 60 of Easement Act, has not the Lower Appellate Court acted in a highly erroneous and perverse manner to hold that possession of defendants over the suit land is that of a license without recording findings as to the alleged creation of license and termination thereof? Has not Lower Appellate Court committed grave error of law and jurisdiction in recording such findings when there was no proper pleadings and evidence available on the ::: Downloaded on - 26/08/2022 20:05:55 :::CIS 1 record? Have not both the Courts below acted beyond their jurisdiction to disentitled the plaintiff for recovery of possession when the status of defendants was proved .
to be that of a trespasser and proper provision of law applicable was Section 65 of Limitation Act?
16. The cross-objections of defendants were also admitted on substantial questions of law No. 1 and 2, which reads as under:-.
1. Whether the learned First Appellate Court has misread and mis-appreciated the pleadings of the parties as also the evidence on record, both oral and documentary, and has erred in modifying the findings qua issues No. 6 and 7 and whether such modification of the findings are sustainable in law?
2. Whether on the ingredients of adverse possession having been pleaded and proved by way of cogent evidence and pleadings and the right of adverse possession having flowered into ownership and the same having been answered in favour of the Cross Objectors by the learned Trial Court, the modification of such findings are sustainable in law?
17. Article 65 of the Limitation Act prescribes a period of twelve years as limitation for filing suit for possession of immovable property or any interest therein based on title from the time when the possession of the defendant becomes adverse to ::: Downloaded on - 26/08/2022 20:05:55 :::CIS 1 the plaintiff. Thus, in a suit for possession on the basis of title, defendants seeking dismissal of suit on the plea of adverse .
possession has the burden of proving such plea. Issue No.6 was accordingly framed and the onus was rightly placed on the defendants.
18. The question is as to what is meant by adverse possession.
19. In Karnataka Board of Wakf Vs. Government of India and others (2004) 10 SCC 779, the necessary ingredients for proof of adverse possession have been articulated as under:-
"10. Now we will turn to the aspect of adverse possession in the context of the present case. Appellants averred that the plea of the respondent based on title of the suit property and the plea of adverse possession are mutually exclusive. Thus finding of the High Court that the title of Government of India over the suit property by way of adverse possession is assailed.
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.::: Downloaded on - 26/08/2022 20:05:55 :::CIS 1
It is a well- settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous.
.
The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (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.
12. Plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. (See: S M Karim v. Bibi Sakinal AIR 1964 SC 1254). In P Periasami v. P Periathambi (1995) 6 SCC 523 this Court ruled that "Whenever the plea of adverse possession is ::: Downloaded on - 26/08/2022 20:05:55 :::CIS 1 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:
"As regards the first plea, it is inconsistent with the second plea. Having come into possession under the r to 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."
20. It is also settled that necessary ingredients of adverse possession are required to be specifically pleaded and necessary factual foundation in support thereof is to be made out. Equally ::: Downloaded on - 26/08/2022 20:05:55 :::CIS 1 important is the necessity to prove all necessary ingredients of adverse possession. It is incumbent upon the defendants to plead .
and prove the date on which the possession became adverse and then the same continued uninterruptedly for twelve years. Since by plea of adverse possession, rightful title of someone is sought to be taken away, a heavy burden lies upon the defendants to prove the plea of adverse possession. In case of failure to prove the adverse possession, any other form of possession howsoever, long, cannot be held sufficient to non suit the plaintiff in his prayer for possession of the suit land on the basis of title.
21. Examining the case of the defendants in the backdrop of aforesaid legal position, I have no hesitation to say that defendants have failed in their quest to non suit the plaintiff on the plea of adverse possession. In the written statement, the defendants have only stated that since 06.09.1974, they are coming in continuance, open, hostile and exclusive possession of the suit land. There is no plea that the defendants had taken possession of the suit land by clearly asserting hostile title in denial of the title of the true owner. The basic requirement that defendant must claim the title in himself by denying the title of true owner is ::: Downloaded on - 26/08/2022 20:05:55 :::CIS 2 completely missing in the case. The continuity, exclusiveness and openness of the adverse possession will then follow in order to .
prove the perfection of title in the defendants by adverse possession. Otherwise, the continuity, exclusiveness and openness of possession with defendants without proof of adversity, as noticed above is of no use.
22. Learned Trial Court while deciding issue No. 6 in favour of the defendants has based in its findings on the oral evidence led by the parties. Admissions made by plaintiff while appearing as his own witness( PW-1) to the effect that the path of the house of defendants passed through Khasra No. 1635, defendants had constructed a septic tank over the path of Khasra No. 1635 and had further laid underground water pipes. Statement of PW-3 to the extent that suit land was used as Sehan ( Courtyard) by defendant No. 2 since the time when defendant No. 2 constructed the house. He had further stated that defendant No. 2 had purchased the house on Khasra No. 1636 on 06.09.1974 from Sh. Hukam Chand and courtyard on Khasra No. 1635 was in possession of Hukam Chand even before its sale to defendant No.
2. The depositions of PW Nos. 4 and 5 were also considered, who ::: Downloaded on - 26/08/2022 20:05:55 :::CIS 2 also stated that the possession of defendants on the suit land was existing since 1974 and that defendants had constructed their .
septic bank and had also laid underground water pipes therefrom.
To similar effect, statement of PW Nos. 6 and 7 were also relied upon by learned Trial Court. On the basis of such evidence learned Trial Court held that defendants were in possession of suit land since 06.09.1974.
23. Learned Trial Court further relied upon the statements of defendants witnesses in order to reiterate its findings as to possession of defendants on the suit land since 06.09.1974. It was on the basis of the oral evidence led by the parties that learned Trial Court also inferred the existence of hostile actual, open, uninterrupted, notorious, exclusive and continuance possession of defendants over the suit land on that premise. It was held that defendants had perfected their title over the suit land by way of adverse possession.
24. No doubt, the findings of learned Trial Court holding defendants to be in possession of suit land since 1974 are in sync with the statements of the witnesses. However, to hold such possession to be adversed, the material was clearly missing. The ::: Downloaded on - 26/08/2022 20:05:55 :::CIS 2 learned Trial Court had thus erred in deciding issue no. 6 in favour of the defendants. It was not proved as to on which date defendants .
had started exercising the right of ownership on the suit land in denial of title of the suit land. None of the witnesses have stated that the defendants claimed themselves to be the owner of the suit land and used the same by denying the title of the plaintiff. That being sine-qua-non, for establishing adverse possession, defendants could not be held to have perfected the title over the suit land by way of adverse possession. Mere continuity of possession without exercising the rights of ownership, that too, in denial of the title of true owner, would not mature as adverse possession.
25. The findings of learned Trial Court on issue no. 6 also cannot be sustained for the reason that the possession of defendants or their predecessor-in-interest in the revenue records was recorded as permissive. Exhibit PW1/D Missal Haqiat, Ext.
PW1/C jamabadi for the year 1979-80 and Ext. PW1/B jamabandi for the year 1985-86 recorded the possession of Hukam Chand, the predecessor-in-interest of defendants as "Villalagan Vavdah Rajamandie" that is the possession with permission to the owner.
::: Downloaded on - 26/08/2022 20:05:55 :::CIS 2The same was the possession in jamabandi for the year 1991, Ext.
PW1/A. The presumption is attached to the revenue records.
.
Defendants had not assailed the entry so recorded. In absence of such challenge, the probative value of revenue entries cannot be ignored.
26. Thus, the findings on issue No. 6 returned by learned Trial Court, were not sustainable. Learned Lower Appellate Court has thus, rightly held that the necessary ingredients for proving the plea of adverse possession had not been proved by the defendants.
27. In their cross-objections, the defendants have assailed the findings after learned Lower Appellate Court on the issue of adverse possession. At the time of hearing of this appeal, again the adverse possession of defendants over the suit land has been claimed and argued to have been proved on record. Adverse possession can be claimed only against the true owner. The insistence of defendants on their plea of adverse possession itself suggest that the ownership of plaintiff is not denied. Ground-B of cross-objections clearly lays down that the defendants have ::: Downloaded on - 26/08/2022 20:05:55 :::CIS 2 challenged the findings of learned Lower Appellate Court regarding existence of irrevocable license in favour of the defendants.
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28. The appeal as well as suit of the plaintiff has been dismissed by learned Lower Appellate Court on the ground that from facts established on record grant of irrevocable license was proved in favour of the defendants. In my considered view, such finding is clearly erroneous over the reasons that there was no factual foundation made out by the defendants, so as to succeed in the plea of irrevocable license. As noticed above, by way of cross-objections even the defendants have assailed such findings before this Court. The findings as to existence of irrevocable license are also under challenge in appeal filed by the plaintiff except for a bald averment in the written statement that the defendants were irrevocable licensee over the suit land, there is nothing on record to suggest that such plea was seriously pressed by the defendants at any stage. Neither the defendants while appearing as DWs nor any of their witnesses have uttered even a single word regarding grant of license or irrevocability thereof.
The license becomes irrevocable on proving of the conditions laid down in Clause A and B of Section 60 of the Indian Easement Act, ::: Downloaded on - 26/08/2022 20:05:55 :::CIS 2 1882, however, sine-qua-non is creation of license. It has never been the case of defendants that license was created in their .
favour by the plaintiff. License has been defined in Section 52 of the Act ibid as under:-
"52. "License' defined- Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called as license."
When the defendants have throughout insisted on the plea of adverse possession, the alternate plea of irrevocable license being self destructive could not survive as the license is also creation of permissiveness by the grantor of a right to do, or continue to do, in or upon the immovable property, something which, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property. Learned Lower Appellate Court in the aforesaid circumstances, could not have carved out the case for defendants on its own.
::: Downloaded on - 26/08/2022 20:05:55 :::CIS 229. Once the defendants had failed to prove the perfection of title over the suit land by way of adverse possession, the legal .
consequence would be the success of the suit of plaintiff for prayer of possession.
30. Noticeably, the defendants though denied the averments made in the plaint to the effect that defendants had raised the wall on the suit land in the year 1991, but no specific plea was set-up as to when the wall was raised. Even the evidence led by the defendants was silent on this aspect. That being so, the plaintiff could not be disbelieved regarding date of construction of wall by defendants. The suit could not be held to be beyond limitation by learned Lower Appellate Court for the reasons firstly that there is no limitation for seeking the relief of possession of immovable property on the basis of title.The permissive possession may be howsoever long title holder as a right to seek possession at any time unless the same has become adverse to his title and twelve years have elapsed. Another reason is that even if by construction of wall defendants had exerted title in themselves, the same cannot be said to have matured in ownership as the suit ::: Downloaded on - 26/08/2022 20:05:55 :::CIS 2 was filed before the requisite period of twelve years that commenced from 1991.
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31. The substantial questions of law framed in the appeal as well as in the cross-objections are accordingly decided.
32. This appeal succeeds. Cross-objections are dismissed. Judgment and decree dated 30.09.2008, passed by learned Presiding Officer, Fast Track Court, Mandi, District Mandi, H.P., in Civil Appeal No. 11 of 2007, arising out of judgment and decree dated 12.10.2007, passed by learned Civil Judge( Sr. Division), Sundernagar, District Mandi, H.P., in Civil Suit No. 51 of 1997, is set-aside. The suit of the plaintiff is decreed and decree of possession of suit land comprised in Khewat No. 43, Min Khatauni No.102, Khasra No. 1635 is passed in favour of the plaintiff and against the defendants with further directions to the defendants to demolish the wall raised by them on the suit land, if so desired, within a period of two weeks, from the date of this decree, failing which plaintiff shall be entitled to the possession of the suit land with all annexures made to it including the wall raised by the defendants.
::: Downloaded on - 26/08/2022 20:05:55 :::CIS 233. The appeal is accordingly disposed of, so also the pending miscellaneous application(s), if any.
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Decree sheet be prepared accordingly.
( Satyen Vaidya )
Judge
26th August, 2022
(sushma)
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