Himachal Pradesh High Court
Amit Garg And Others vs The State Of Himachal Pradesh And Others on 8 September, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 137 of 2005.
Reserved on 01.09.2016.
.
Decided on: 08.09.2016.
Amit Garg and others ....Appellants.
Versus
The State of Himachal Pradesh and others ... Respondents.
of ________________________________________________________ Coram The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
rt Whether approved for reporting?1 Yes.
________________________________________________________ For the appellants. : Mr. Rajnish K. Lal, Advocate.
For respondent No. 1 : Mr. V.S. Chauhan, Addl. AG.
For respondents No. 2(a) : Mr. Dhanjay Sharma, Advocate.
2(c), 2(i), 2(j), 2(k), 2(l)
and 2(m)
For respondent No. 2(b), : Ex Parte.
2(d), 2(e), 2(f), 2(g), &2 (h)
Ajay Mohan Goel, Judge.
This appeal has been filed by the appellants-plaintiffs against the judgment and decree passed by the Court of learned District Judge, Sirmaur District at Nahan, in Civil Appeal No. 59/1 of 2002 dated 03.01.2005, vide which, learned Appellate Court, while 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:11:36 :::HCHP 2upholding the judgment and decree passed by the Court of learned Civil Judge (Jr. Divn.) Rajgarh, Camp at Sarahan, District Sirmour, in .
Civil Suit No. 59 of 2002 dated 19.12.2003, dismissed the appeal so filed against the same.
2. This appeal was admitted on 04.08.2006 on the following substantial question of law:
of "Whether the two Courts below have not appreciated the evidence, particularly the entries in the copies of the Jamabandis, while dealing with the plea of the plaintiffs that there had been their Abadi on the suit land for more than thirty years and thus they had acquired titled by rt prescription?"
3. On 05.08.2016, on an application filed by the appellants, it was agreed that the appeal shall also be heard on following substantial questions of law:
"Whether the findings of the court below are perverse, based on misreading of oral and documentary evidence and particularly the pleadings of the parties and the document of PW-2/A?
Whether in view of the fact that ejectment proceedings were only against Beni Prashad?
Whether the oral sale was permissible when TPA was not applicable to the H.P. and it only applied after 1970 and the courts have rightly held that the property earlier in the name of His Highness Sirmaur and findings contrary to that there was oral sale, was not permissible was sustainable in the eyes of law?"
4. Brief facts necessary for the adjudication of this case are that the appellants-plaintiffs (hereinafter referred to as 'plaintiffs') ::: Downloaded on - 15/04/2017 21:11:36 :::HCHP 3 filed a suit for declaration and injunction on the ground that the suit land in issue was earlier recorded in Jamabandi Misal Haquiat 1987- .
88 Samvat i.e. Christen era 1931-32 in the ownership of Sarkar Daulatmadar i.e. His Highness, Sirmaur and possession of Mahkma District Board. His Highness, Sirmaur, invited people from different places for the purpose of developing Sarahan village as town and in of this process, Jadon alongwith others, came to Sarahan and approached His Highness to purchase the suit land from His Highness. According rt to the plaintiffs, His Highness sold the suit land in favour of Jadon by way of an oral sale and Jadon constructed a building on the said land i.e. Khasra No. 326 min. After the death of Jadon, he was succeeded by his representatives (sons) Banarsi Dass, Munna Lal and Ram Swarup. Banarsi Dass died issueless and Munna Lal and Ram Swarup succeeded him. After the death of Munna Lal, he was succeeded by his widow Smt. Krishna and after the death of Ram Swarup, he was succeeded by his widow Shakuntla Devi, sons Surender Prakash, Prem Chand and daughters Prem Lata, Raj Rani and Shyam Lal.
Further as per the plaintiffs, the successors became absolute owners in possession of Khasra No. 326 min. on which building was constructed before settlement. Further as per the plaintiffs, by way of a private partition, abovementioned persons separated their shares and became ::: Downloaded on - 15/04/2017 21:11:36 :::HCHP 4 absolute owners in possession of Khasra No. 326 min. old and 1005 new, situated in village Sarahan Kalan, Tehsil Pachhad, District .
Sirmaur, H.P. Thereafter, vide sale deed No. 88, dated 14.8.1978, Shakuntla and others sold the land alongwith building in favour of Manmohan s/o Beni Prashad for a sale consideration of Rs. 35,00/-
which sale deed was duly registered by Sub Registrar, Pachhad. On of the basis of this sale deed, Manmohan became absolute owner in possession of Khasra No. 326 min old and 1005 new, measuring 57.25 rt sq. meter. After the death of Manmohan, plaintiffs No. 1 to 3 being sons and widow of Manmohan, succeeded him. It was further the case of the plaintiffs that Manmohan Garg had constructed a double storeyed building on the suit land and when the land in issue was purchased by him he had also purchased alongwith the land two rooms, one kitchen, courtyard and a latrine. It was further the case of the plaintiffs that there was an adjoining house of Sumer Chand, son of Pyare Lal which was purchased by plaintiff No. 4 vide sale deed dated 16.7.1948. According to plaintiffs, entries in Jamabandi showing the State of Himachal Pradesh as owner of the suit land were illegal, inoperative void and were not binding on the rights of the Plaintiffs No. 1 to 3. According to the plaintiffs, Beni Prashad and Manmohan Garg were owners in possession of different parcels of ::: Downloaded on - 15/04/2017 21:11:36 :::HCHP 5 land but in the recent settlement, the lands owned and possessed by them separately, were shown as joint, which was illegal and wrong.
.
Further as per the plaintiffs, is it was proved by the defendant that the plaintiffs were not owners in possession of the suit land then the plaintiffs had become owner in possession of suit land by virtue of adverse possession. On these bases, it was prayed that they had of become owners in possession of the suit land and defendants had no right, title or interest on the suit land. On these pleadings, the rt plaintiffs have prayed for the following reliefs:
"a) That the plaintiffs No. 1 to 3 are owners in possession of the land comprised in Khara Khatauni No. 201 Min/448 min Khasra No. 326 old and 1005 new by way of sale deed situated in village Sarahan Kalan, Tehsil Pachhad, District Sirmour, H.P.
b) That in the alternative the plaintiffs No. 1 to 3 are owner in possession of the land comprised in Khata Khatauni No. 201 min/488 min Khasra No. 326 old and 1005 new vide recent settlement situated in village Sarahan Kalan Tehsil Pachhad, District Sirmour, H.P. by way of adverse possession.
c) That the entries in revenue papers showing the defendant as owner in possession of the land comprised in Khata Khatauni No. 201 min/488 min Khasra No. 326 old and 1005 bnew situated in village Sarahan Kalan, Tehsil Pachhad, District Sirmaur, H.P. is illegal, inoperative and void and is not binding on the rights of the plaintiffs.
d) That the order passed by the settlement Collector Shimla in the case titled as state V/S Beni Prashad passed on ::: Downloaded on - 15/04/2017 21:11:36 :::HCHP 6 6.4.2002 is illegal, void, inoperative and is not binding on the rights of the plaintiffs.
e) That the decree permanent injunction restraining the defendants from dispossessing of the plaintiffs in the land .
comprising situated in village Sarahan Kalan Tehsil Pachhad, Distt. Sirmour, H.P. through himself through his agent servant or assignee or through any manner what so ever may kindly be passed in favour of the plaintiffs and against the defendants with cost of suit."
5. In the written statement, which was filed on behalf of of State, it was averred that the plaintiffs had come up with a false story just to grab the government land which they had encroached during rt settlement and from which they had been ordered to be legally ejected. According to the defendant-State, Khasra No. 326 was recorded to be owned by Sarkar Daulatmandar and it continued to be as such and there was no entry in the revenue record regarding sale to Jadon and had there been any such sale, same would have been reported to the revenue authorities and entries should have been incorporated in the revenue record. As such, as per State, Jadon was not owner of the suit land and there was no question of inheritance or possession of suit land by his legal representatives. It was also averred that during recent settlement, plaintiff No. 4, Beni Prashad was found in unauthorized possession of Khasra No. 326 min old measuring 71 sq. meters which had been given new Khasra No. 1000 and ::: Downloaded on - 15/04/2017 21:11:36 :::HCHP 7 accordingly ejectment proceedings had been initiated against plaintiff No. 4. Remaining averments made in the plaint were also denied and .
it was reiterated that the suit land was owned by State of Himachal Pradesh and whereas earlier it was in the ownership of Sakar Daulatmandar and in the possession of Mahkma District Board, later on as per Jamabandi for the year 1960-61, suit land was in possession of of Territorial Council, Himachal Pradesh and same was recorded as 'gair mumkin abadi uftada'. It was further stated in the written rt statement that during recent settlement, plaintiff No. 4 was found in unauthorized possession of the suit land and plaintiff had come up with a false story just to grab the government land. It was further mentioned in the written statement that when encroachment made by Beni Prashad was found during recent settlement, same was reported to the authorities and after giving him due opportunity of hearing, Settlement Officer had passed valid and legal order thereupon which was binding on the plaintiffs, which had attained finality. On these grounds, claim of the plaintiffs was denied by the defendants.
6. On the basis of pleadings of the parties, learned trial Court framed the following issues:-
"1.Whether the suit land was earlier in the ownership of Sarkar Daulatmandar i.e. His Highness Sirmaur and possession of Mehkma Distt. Board, as alleged? OPP.::: Downloaded on - 15/04/2017 21:11:36 :::HCHP 8
2. Whether Sh. Jadon the predecessor-in-interest of the plaintiff had purchased the suit land through oral sale from His Highness Sirmaur, as alleged, if so its effect? OPP.
3. Whether Smt. Shakuntla etc sold the land alongwith building in .
favour of Manmohan S/o Sh. Beni Prashad by registered sale deed, as alleged? OPP.
4. Whether the plaintiffs are entitled to the alternative of adverse possession, as alleged? OPP.
5. Whether the revenue entry in favour of defendant as owner in possession of suit land is illegal, as alleged? OPP
6. Whether order passed by Settlement Collector Shimla Dt. 6.4.02 of is illegal, void and without jurisdiction, as alleged?OPP
7. Whether the plaintiffs are entitled to the relief of permanent injunction, as alleged? OPD.
rt
8. Whether the suit is not maintainable? OPD.
9. Whether this court has no jurisdiction to try the present suit, as alleged? OPD.
10.Whether the plaintiffs are estopped to file the present suit by their own act and conduct, as alleged? OPD.
11.Whether the suit is bad for want of notice u/s 80 CPC, as alleged? OPD.
12. Relief."
7. On the basis of evidence produced on record by the parties, the following findings were returned by the learned trial Court on the issues so framed:-
"Issue No.1 : Yes.
Issue No. 2 : No.
Issue No. 3 : No.
Issue No.4 : No.
Issue No.5 : No.
Issue No.6 : No.
Issue No. 7 : Yes.
Issue No. 8 : No.
Issue No. 9 : No.
Issue No. 10 :No.
Issue No. 11 :No.
Relief :Suit partly decreed as per operative part of the
judgment."
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9
8. Accordingly, the suit filed by the plaintiffs was partly decreed by learned trial Court by passing a decree for permanent .
injunction in favour of plaintiffs and against the defendant, restraining the defendant from forcibly dispossessing the plaintiffs, from suit land till they were evicted in due course of law. Rest of the suit was dismissed.
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9. Feeling aggrieved by the said judgment passed by the learned trial Court, the plaintiffs filed an appeal and the learned rt Appellate Court, vide judgment and decree dated 03.01.2005, while upholding the judgment and decree passed by learned trial Court, dismissed the appeal so filed by the plaintiffs.
10. Mr. Rajnish K. Lal, learned counsel appearing for the appellants has argued that the judgments and decrees passed by both the learned Courts below are not sustainable in law as both the learned Courts below had erred in not appreciating that the suit land was purchased by Jadon by way of oral sale which was permissible in law, from the original owner of the land i.e. His Highness, Sirmaur and after the death of Jadon, the suit land was succeeded by Banarasi Dass, Munna Lal and Ram Swarup, from whom the property devolved upon the predecessor in interest of plaintiffs No. 1 to 3 on 14.08.1978 by way of a sale deed. Learned counsel for the appellants further ::: Downloaded on - 15/04/2017 21:11:36 :::HCHP 10 submitted that it stood proved from the record that Ram Swarup was succeeded by Shakuntla, Surender Prakash, Prem Chand, Prem Lata, .
Raj Rani and Shyam Lata and they had sold the suit land in favour of Manmohan i.e. predecessor in interest of plaintiffs No. 1 to 3. It was further contended by learned counsel for the appellants that even otherwise the findings which were returned by both the learned Courts of below were totally perverse as the true intent of Ext. PW2/A was not appreciated by both the learned Courts below and this aspect of the rt matter was not appreciated by both the learned Court below that as the ejectment proceedings had been initiated only against Beni Prashad, other plaintiffs could not be made to suffer and put to loss on account of and in the process of ejectment proceedings in which they were not even a party. He also argued that both the learned Courts below erred in not accepting the alternative plea of adverse possession as it stood proved on record that appellants had perfected their title by way of adverse possession. On these bases, it was urged by learned counsel for the appellants that judgments and decrees passed by both the learned Courts below were perverse and not sustainable in law.
11. Mr. V.S. Chauhan, learned Additional Advocate General, on the other hand, argued that there was neither any perversity not any infirmity with the findings which were returned by both the learned ::: Downloaded on - 15/04/2017 21:11:37 :::HCHP 11 Courts below because plaintiffs had miserably failed to prove that any sale, oral or otherwise, took place by virtue of which, Jadon became .
owner of the suit land. Mr. Chauhan further argued that the findings returned by both the learned Courts below to the effect that no sale as was alleged by plaintiffs was ever proved on record and that the plaintiffs were encroachers on the suit land, were based on material of produced on record. Mr. Chauhan further argued that even otherwise whether or not sale was entered into between Jadon and His Highness rt of Sirmaur was a question of fact which stood decided concurrently against the appellants by both the learned Courts below and the findings so returned by both the learned Courts below did not warrant any interference in the second appeal. Mr. Chauhan further argued that there was not even an iota of evidence on record to substantiate that Jadon had purchased any property from His Highness Sirmaur by way of any oral sale as was the case put forth by the plaintiffs.
According to Mr. Chauhan, the edifice of the case of the plaintiffs was so called oral sale qua the suit land between Jadon and His Highness, Sirmaur and when the plaintiffs had failed to prove that any such sale took place, the findings which were returned by both the learned Courts below holding that the plaintiff were nothing but encroachers over the suit land were the correct finding. According to Mr. Chauhan, ::: Downloaded on - 15/04/2017 21:11:37 :::HCHP 12 there was no mis-appreciation or misreading of any document on record including Ext. PW2/A. He further argued that contention of .
learned counsel for the appellants that persons not party in the ejectment proceedings could not be made to suffer on account of a proceeding which was only initiated against Beni Prashad was also without any merit because the judgment passed by learned trial Court of very clearly and categorically mentioned that the plaintiffs can be evicted from the suit land only in due process of law and the said rt judgment, duly protected the interests of plaintiffs. Mr. Chauhan also argued that the findings returned by both the learned Courts below to the effect that plaintiffs had failed to prove that they had become the owners of the suit land by way of adverse possession also calls for no interference because plaintiffs had failed to prove that their possession of suit land was open, peaceful and hostile as to the knowledge of real owners. On these bases, it was argued by Mr. Chauhan that there was no merit in the appeal and the same be dismissed.
12. Learned Counsel for the private respondents supported the case of appellants.
13. I have heard the learned counsel for the parties and I have also gone through the records of the case as well as the judgments passed by both the learned Courts below.
::: Downloaded on - 15/04/2017 21:11:37 :::HCHP 1314. A perusal of the issues framed by learned trial Court demonstrates that there was a specific issue framed by learned trial .
Court whether Jadon had purchased the suit land through an oral sale from His Highness, Sirmaur or not. It was held by learned trial Court on the basis of evidence produced on record that there was nothing on record which showed that Jadon had purchased suit land from His of Highness Sirmaur. Learned trial Court held that there was no convincing evidence on record to substantiate that Banarasi Dass, rt Munna Lal and Ram Swarup had succeeded Jadon after his death. It was further held by the learned trial Court that the contention of the plaintiffs that in a partition proceedings between Krishna Devi and Shakuntla, suit land came to the share of Shakuntla, was also not substantiated from any material on record as no partition whatsoever was reflected in any revenue record. It was further held by the learned trial Court that Ext. PW2/A in fact reflected Shakuntla Devi, a power of attorney holder of others, having sold the suit property in favour of Manmohan Singh son of Beni Prashad. This sale deed was shown to be executed on 14.08.1978 and registered on the same date. Learned trial Court held that a perusal of the sale deed demonstrated that there were no particulars of khasra numbers mentioned in the same qua the property which purportedly was the subject matter of sale in favour of ::: Downloaded on - 15/04/2017 21:11:37 :::HCHP 14 Manmohan. It was further held by learned trial Court that it was the admitted position that said sale deed was never incorporated in any .
revenue record. Learned trial Court further held that seller reflected in the sale deed was in fact not recorded either in the column of ownership or in the possession of suit land and title of Shakuntla, Surinder Prakash, Prem Chand, Prem Lata, Raj Rani and Shyam Lata of was nowhere recorded in the revenue record. It was further held by learned trial Court on the basis of documents on record that as far as rt revenue records were concerned, long standing entries appearing in the same reflected the Government of Himachal Pradesh as recorded owner of the suit land though in the latest revenue records, in the column of possession, there was entry qua illegal possession recorded as "Mukhtlif Kabjan Najayaj". Accordingly, it was concluded by learned trial Court that it could not be proved by the plaintiffs that Jadon had in fact purchased the suit land by way of an oral sale and he was succeeded by Banarasi Dass, Munna Lal and Ram Swarup etc. Learned trial Court further held that it was not established that the suit land was inherited by Shakuntla, Surender Prakash, Prem Chand, Prem Lata, Raj Rani and Shyam Lata after the death of Ram Swarup or that at the time of execution of sale deed dated 14.8.1978 by Shakuntla etc in favour of Manmohan Singh son of Sh. Beni Prashad, ::: Downloaded on - 15/04/2017 21:11:37 :::HCHP 15 said Shakuntla etc. were owner in possession of the suit land. Thus, it was held by learned trial Court that title of Jado and Ram Swarup was .
not established on record and hence question of inheritance of title by Shakuntla thereof does not arise. It was further held by learned trial Court that Kaka Ram, Reader of Tehsildar Pachhad, who had entered the witness box as DW1 had deposed that as per record at case file of No. 4/88 received on 6.4.2002, Patwari had made report of encroachment and Kanungo had also made report in this regard and rt notice under Section 163 of the H.P. Land Revenue Act had been issued to plaintiff No. 4. Learned trial Court further held that in the said proceedings, after the issuance of notice under Section 163 of said Act, warrant of ejectment under Section 163 of the H.P. Land Revenue Act had also been issued by the competent authority for the ejectment of plaintiff No. 4. It was further held by learned trial Court that DW1 had stated that the proceedings which had been initiated against plaintiff No. 4 under Section 163 of the H.P. Land Revenue Act were attended by Beni Prashad as well as his sons. DW2 Piar Chand, Kanungo also corroborated the case of defendant. It was further held by learned trial Court that there was no convincing ground to infer that possession of plaintiffs over the suit land ripened into ownership by way of adverse possession. On these bases, learned ::: Downloaded on - 15/04/2017 21:11:37 :::HCHP 16 trial Court while rejecting the other reliefs claimed by plaintiffs, partly decreed the suit restraining the defendant from forcibly dispossessing .
the plaintiffs from the suit property except in due course of law.
15. Learned Appellate Court while affirming the findings so returned by learned trial Court held that the plaintiffs were not able to make out any case for interference. It was held by learned Appellate of Court that the contention of the plaintiffs with regard to their title based on sale deed was not proved by them. Learned Appellate Court rt held that a perusal of sale deed Ext. PW2/A demonstrated that there was not even a fleeting reference as to the suit property in the so called sale deed. It was further held by learned Appellate Court that Kaka Ram, Registration Clerk, who had entered the witness box to testify Ext. DW2/A admited that there was no mention of khasra numbers in the said sale deed. Learned Appellate Court also held that Ext. PW2/A also did not reveal as to whether the house in issue was forming part of suit property which was sold by her to the plaintiffs. It was also held that revenue records categorically demonstrated that defendant was recorded as owner in possession of the suit property, however, in bandobast settlement, plaintiff No. 4 and his sons were shown in joint possession of Khasra No. 1005/1, measuring 54.25 sq. meters to the extent of half share each and plaintiff No. 4 was shown ::: Downloaded on - 15/04/2017 21:11:37 :::HCHP 17 in exclusive possession of Khasra No. 1006, measuring 21.38 Sq.
meters, whereas in earlier revenue records, right from samvat 2001-02 .
till 1968-69, defendant was recorded in possession of the suit land. It was further held that it was for the first time, the entry in the column of possession of suit property comprised in Khasra No. 1005 was "Mukhtlif Kabjan Najayaj", which entry continued up to settlement.
of Learned Appellate Court also held that there was no document of sale pertaining to the purchase of house from Sumer Chand by plaintiff rt No. 4 nor there was any mutation etc. recorded in this regard. Learned Appellate Court also held that plaintiff No. 4 had not stepped into witness box in support of contention of purchase of said property from Sumer Chand. On these bases, it was held by the learned Appellate Court that the findings to the effect that plaintiffs had not been able to make out a case for ownership and possession of the suit property could not be faulted with. Learned Appellate Court has upheld the findings of the learned trial Court to the effect that plaintiffs could not demonstrate that they had perfected their title on the suit property by way of adverse possession. It was held by learned Appellate Court that plaintiffs were claiming their title on the basis of sale deed which though could not be proved and it was enjoined upon them to show as to since when they started proclaiming their adverse or hostile title or ::: Downloaded on - 15/04/2017 21:11:37 :::HCHP 18 since when they had animus to possess suit property adversely in denial of the title of the true owner i.e. defendant-State. On these .
bases, the appeal so filed by the plaintiffs was dismissed by learned Appellate Court.
16. In my considered view, the findings, which had been returned by both the learned Courts below holding that there was no of material on record from which it can be inferred that the suit property was ever purchased by Jadon from His Highness of Sirmaur, by way rt of oral sale, are correct findings. Case to the effect that Jadon had become owner of the suit property by way of an oral sale was put forth and propounded by the plaintiffs and obviously the onus to prove the same was on the plaintiffs. In fact, the entire edifice of the case of the plaintiffs was this oral sale of the suit land by His Highness Sirmaur in favour of Jadon. However, as has been rightly held by both the learned Courts below, plaintiffs miserably failed to prove that any oral sale was entered into between Jadon and his Highness, Sirmaur, as was the case put forth by plaintiffs. There is no revenue entry to this effect that Jadon had become owner of the suit property by virtue of oral sale entered into by him with His Highness, Sirmaur. In this view of the matter, the subsequent findings returned by both the learned Courts below to the effect that the plaintiffs could ::: Downloaded on - 15/04/2017 21:11:37 :::HCHP 19 not prove on record that the suit property was subsequently inherited by the successor in interest of Jadon and from one of such successor .
in interest, the same was legally purchased by late Shri Manmohan, the predecessor in interest of plaintiffs cannot be faulted with. During the course of arguments, learned counsel for the appellant could not point out as to what was the material on record produced by the of plaintiffs from which it could be inferred that the findings returned by both the learned Courts below to this effect were either perverse or rt erroneous. Learned counsel appearing for the appellants could not draw the attention of this Court to any of the documents on record from which it could be inferred that the persons from whom the suit property was purchased vide sale deed dated 14.8.1978 by Shri Manmohan, were owners in possession of the suit property and had any valid title over the same. In this view of the matter, it is reiterated that the findings returned by the learned Courts below that the plaintiffs had miserably failed to prove on record that the suit property was purchased by Jadon by way of an oral sale from His Highness and subsequently the same was inherited by his successors in interest are correct findings. Similarly, the findings returned by both the learned Court below to the effect that plaintiffs could not ::: Downloaded on - 15/04/2017 21:11:37 :::HCHP 20 prove on record that they had perfected their title on the suit property by way of adverse possession also cannot be faulted with.
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17. The theory of adverse possession is that an adverse possession allows a trespasser, a person guilty of tort or even crime in the eyes of law to gain legally title of land, which he has illegally possessed for 12 years or 30 years in the case of Government land.
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18. Incidentally, the appellants before this Court were the plaintiffs who had filed a suit for seeking declaration to the effect that rt they be declared owner in possession of the suit property as they had perfected the said title by way of adverse possession. The Hon'ble Supreme Court in Gurdwara Sahib Vs. Gram Panchayat Village Sirthala and another, (2014) 1 Supreme Court Cases 669 has held as under:-
"There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence."
19. The Hon'ble Supreme Court in Chatti Konati Rao and others Vs. Palle Venkata Subba Rao, (2010) 14 Supreme Court Cases 316, has held:-
"12. ............ What is adverse possession, on whom the burden of proof lie, the approach of the court towards such plea etc. have been the subject matter of decision in a large number of cases. In the case of T. Anjanappa ::: Downloaded on - 15/04/2017 21:11:37 :::HCHP 21 v. Somalingappa, it has been held that mere possession however long does not necessarily mean that it is adverse to the true owner and the classical requirement of acquisition of title by adverse possession is that such possessions are in denial of the true owner's title.
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Relevant passage of the aforesaid judgment reads as follows: (SCC p. 577, para 20)
"20. It is well-recognized proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order of to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true rt owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."
13. What facts are required to prove adverse possession have succinctly been enunciated by this Court in the case of Karnataka Board of Wakf vs. Government of India and Ors. It has also been observed that a person pleading adverse possession has no equities in his favour and since such a person is trying to defeat the rights of the true owner, it is for him to clearly plead and establish necessary facts to establish his adverse possession. SCC para 11 of the judgment which is relevant for the purpose reads as follows : (SCC p. 785) "11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec ::: Downloaded on - 15/04/2017 21:11:37 :::HCHP 22 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 Sakina, Parsinni v. Sukhi and D.N. Venkatarayappa v. State of Karnataka. 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.
of 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 rt possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma.)"
14. In view of the several authorities of this Court, few whereof have been referred above, what can safely be said that mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The possession must be open and hostile enough so that it is known by the parties interested in the property. The plaintiff is bound to prove his title as also possession within 12 years and once the plaintiff proves his title, the burden shifts on the defendant to establish that he has perfected his title by adverse possession. Claim by adverse possession has two basic elements i.e. the possession of the defendant should be adverse to the plaintiff and the defendant must continue to remain in possession for a period of 12 years thereafter.::: Downloaded on - 15/04/2017 21:11:37 :::HCHP 23
15. Animus possidendi as is well known a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until possessor holds property adverse to the title of the true owner for the said purpose. The person who claims adverse possession .
is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse of possession. The courts always take unkind view towards statutes of limitation overriding property rights. Plea of adverse possession is not a pure question of law but a blended one of fact and law."
20. rt Accordingly, applying these principles to the facts of the present case, I am of the considered view that appellants have miserably failed to demonstrate that they were either in possession of the suit land for more than required number of years as alleged and that their alleged possession was open, peaceful and hostile as against the true owner.
21. From the material on record it cannot be said that both the learned Courts below have misread or mis-appreciated the evidence produced on record including the jamabandis and other revenue records nor it can be said that the findings recorded by both the learned Courts below were perverse or were a result of misreading of documentary evidence produced on record including Ext. PW2/A. ::: Downloaded on - 15/04/2017 21:11:37 :::HCHP 24 It is pertinent to take note of the fact that it is not as if both the learned Courts below held that though plaintiffs were able to prove that Jadon .
had purchased the suit land by way of an oral sale, however, oral sale was not permissible in law. The clear and categorical findings returned by both the learned Courts below are to the effect that the plaintiffs had failed to prove that any sale transaction took place of between Jadon and His Highness, Sirmaur either oral or otherwise.
The contention of the learned counsel appearing for the appellants that rt both the learned Courts below have failed to appreciate that in the proceedings which had been initiated under Section 163 of the H.P. Land Revenue Act against plaintiff No. 4, all the plaintiffs could not be harassed is also misconceived because learned trial Court itself has given protection to the plaintiffs to the effect that they shall not be dispossessed from the suit land forcibly except in due process of law.
22. Therefore, in view of the above discussion, there is no merit in the present appeal. The substantial questions of law are answered accordingly.
The appeal is dismissed with costs, so also pending miscellaneous application(s), if any.
(Ajay Mohan Goel) Judge 8th September, 2016.
(narender) ::: Downloaded on - 15/04/2017 21:11:37 :::HCHP 25 .
of rt ::: Downloaded on - 15/04/2017 21:11:37 :::HCHP