Himachal Pradesh High Court
Mast Ram vs Tejinder Singh (Deceased) Through Lrs on 5 October, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 319 of 2008
Date of decision: 03.10.2018
.
Mast Ram ... Appellant
Vs.
Tejinder Singh (deceased) through LRs. ... Respondents
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1. Yes.
For the Appellant : Mr. G. D. Verma, Sr. Advocate, with
Mr. B.C. Verma, Advocate.
For the Respondents : Mr. G. S. Rathore, Advocate.
Justice Tarlok Singh Chauhan, Judge (Oral)
Entries in Revenue Records are the paradise of the Patwari. This quote from the judgment of the Hon'ble Supreme Court in Baleshwar Tewari (deceased) by LRs and others vs. Seo Jatan Tiwary and others (1997) 5 SCC 112, is fully applicable to the facts of the instant appeal.
2. The defendant is the appellant and aggrieved by the judgment and decree passed by the learned first appellate Court whereby he reversed the judgment and decree passed by the learned trial Court and decreed the suit of the plaintiff, has filed the instant appeal.
3. On 07.07.2008, this appeal was admitted on the following substantial questions of law:
1Whether the reporters of the local papers may be allowed to see the Judgment? Yes.::: Downloaded on - 06/10/2018 22:58:23 :::HCHP 2
1. Whether Civil Court has no jurisdiction to try the suit with respect to same subject matter of dispute between the same parties keeping in view the fact that dispute in question had already been decided in the previous .
litigation?
2. Whether suit filed by Respondent is based upon wrong revenue entries, especially on the basis of mutation No. 435, which has been brought on record as Exhibit DW1/A and in view of fact that this mutation has already been set- aside by Ld. Collector, Shimla, Sub Division Shimla vide order dated 06.12.2007, therefore, suit was required to be dismissed?
3. That whether in the previous suit exhibit DW2/A respondent did not claim declaration of his ownership with respect to suit land and thus claim having not been put to trial nor such a claim was set up in the present subsequent suit, therefore, Respondent has failed to establish his ownership over the same and what is its effect?
4. Since all these questions are intrinsically inter-linked and interconnected, they are taken up together for consideration and are being disposed of by a common reasoning.
5. Admittedly, this is second round of litigation between the parties and suit earlier filed by the plaintiff for injunction and possession against the defendant qua land bearing khata khatauni No. 163/210 Min. old khasra Nos. old 1175/905/547 Min.
and 1178/905/547 Min., new khasra Nos. 638, 639, 640 and 642 situated in Sanjauli was though dismissed by the learned trial Court, however, the said judgment and decree was set aside by the learned first appellate Court.
::: Downloaded on - 06/10/2018 22:58:23 :::HCHP 36. As regards khasra Nos. 638 and 640, the ownership and possession thereof was held to be that of the plaintiff and it was specifically held that this part of the land had not been .
purchased by Mast Ram i.e. Appellant.
7. As regards khasra Nos. 639 and 642, the defendant was specifically restrained by issuing of prohibitory injunction from encroaching upon any part of the land of khasra Nos. 642 and 639 on the spot.
8. The defendant being feeling aggrieved aforesaid judgment and decree passed by the learned first appellate Court preferred RSA No. 350 of 2004, which was by the dismissed by this Court by observing as under:-
"In appeal preferred by the plaintiff, the learned District Judge did not agree with the findings by the learned trial court. He came to the conclusion that the plaintiff was the owner and in possession of the land of post settlement khasra Nos. 640 and 642. The plaintiff was, therefore, held to be the owner and in possession of the land comprising of khasra No. 642 and accordingly he was held entitled to the relief of permanent injunction qua this land. In so far as the land comprising of khasra No. 639 is concerned, though the plaintiff was held to be the owner therefore, it was found that such land was left as a passage by the plaintiff for the use of all plots holders being a passage. The defendant was held to be not entitled to encroach upon this land also and he was, therefore, restrained by way of a permanent injunction from encroaching upon the land comprising of khasra No. 639 as well.
Aggrieved the defendant is in appeal before this Court.::: Downloaded on - 06/10/2018 22:58:23 :::HCHP 4
The question involved in the present case as to the nature, ownership and possession of the land in dispute, are purely questions of fact. The findings of the learned first appellate court holding the plaintiff to be the owner of .
the land in dispute and further holding the plaintiff in possession of the land comprising of khasra Nos. 642 and land comprising of khasra No. 639 to be a passage are based upon proper appreciation of evidence coming on the record.
No question of law, much less, a substantial question of law is involved in the present case. Resultantly, the appeal is dismissed."
9. It appears that during settlement, the defendant in collusion with revenue agency got the entries changed in his name constraining the plaintiff to once again to approach the Civil Court, wherein he prayed a decree for possession of the land comprised in khasra Nos. 640 and 642 measuring 111-66 sq. yards, on the allegation that despite the earlier judgment and decree having been passed in favour of the plaintiff, the defendant during settlement operation had encroached upon the suit land and got changed the revenue entries in his name.
10. The suit was contested by the defendant wherein strangely enough he took the plea that the suit in view of the earlier litigation was barred under Order-2 Rule-2 CPC.
11. That apart, he had averred that against the decision in RSA No. 350 of 2004, he was in process of approaching the Supreme Court. The learned trial Court dismissed the suit mainly on two grounds firstly by holding that the suit was barred by the ::: Downloaded on - 06/10/2018 22:58:23 :::HCHP 5 provisions contained under Order 2 Rule 2 CPC and also by the principle of res judicata. However, on an appeal, the findings rendered by learned Courts below were set aside and the suit of .
the plaintiff was ordered to be decreed.
12. Now, adverting to the first question, it cannot be disputed that since the title of the plaintiff was in dispute, therefore, it was the Civil Court alone which could have jurisdiction to entertain the suit and in case the decision in the previous litigation is to be taken into consideration then the defendant probably had no legs to stand and could not have managed to prolong this litigation since the year 2004.
13. Admittedly, the plaintiff is found to be the owner in possession of Khasra Nos. 638, 639, 640 and 642 and it is only on account of the mischief of the revenue agency that the plaintiff was driven to un-necessary litigation.
14. As regards question No. 2, to say the least, merely because the mutation No. 432 had been set aside, that too, in favour of the plaintiff by the learned Collector vide order dated 06.12.2007, it could not be claimed that the suit had been rendered infructuous. The reason for the same is obvious. Firstly, this order was passed when the appeal against the judgment and decree of the trial Court was pending before the learned first appellate Court. That apart, it was not that the defendant had obeyed the decree by handing over the possession of the suit ::: Downloaded on - 06/10/2018 22:58:23 :::HCHP 6 land to the plaintiff which alone could have rendered the suit to be infructuous.
15. Having failed to hand over the possession, it does not .
lie in the mouth of the appellant to claim that the suit was rendered infructuous or ought to have been dismissed.
16. As regards question No. 3, it was on account of the mischief of the revenue officials that the plaintiff was constrained to file the suit out of which the present appeal has arisen. As already observed above, in the earlier suit, there was a declaration regarding the title of the plaintiff and therefore, he had every right to claim possession on the strength of his title.
17. It would be noticed that while admitting the appeal on 07.07.2008, the question of limitation has been kept open.
However, since the suit filed by the plaintiff was based upon title and the plaintiff had failed to prove his plea of adverse possession, no exception to the findings rendered by the first appellate Court can be taken on the point of limitation.
18. Article 65 of the Limitation Act reads as under:-
Art. 65 Twelve When the For possession of immovable years possession of the property or any interest herein defendant based on title. becomes adverse to the plaintiff Explanation.- For the purposes of this article-
(a) where the suit is by a remainderman, a reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to ::: Downloaded on - 06/10/2018 22:58:23 :::HCHP 7 become adverse only when the estate of the remainderman, reversioner or devisee, as the case may be, falls into possession;
.
(b) Where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies;
(c) where the suit is by a purchaser at a sale in execution of a decree when the judgment-
debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment-debtor who was out of possession.
19. The title of the plaintiff is not in dispute in view of the findings rendered in the earlier litigation that have attained finality. Once that be so, then the suit of the plaintiff can only be held to be barred by limitation if the defendant can prove his title by way of adverse possession.
20. The learned Single Judge of this Court in case titled as Tilak Raj vs. Bhagat Ram and another, (1997) 1 Sim LC 281 has held that once the defendant has failed to establish his adverse possession for statutory period of twelve years, the suit for possession based on title cannot be dismissed as being time barred on the ground that the same was filed after the expiry of twelve years from the date of dispossession.::: Downloaded on - 06/10/2018 22:58:23 :::HCHP 8
21. Subsequently, the learned Division Bench of this Court in Smt. Kimtu vs. Smt. Rama Dogra and others (1997) 2 SLJ 1518 has gone to the extent of holding that in a suit for .
possession based on title there is no period of limitation prescribed save in the case where the defendant has set up the plea of adverse possession. It shall be appropriate to refer para 43 of the judgment which reads thus:-
"43. It is well settled that in a suit for possession based on title, there is no period of limitation prescribed save in the case where the defendant has set up the plea of adverse possession."
22. The judgment in Tilak Raj's case (supra) has subsequently been followed in RSA No. 366 of 1999, titled Surat Ram vs. Jyoti (since deceased) through her LRs & others, decided on 21.09.2010, wherein it was observed as under:-
"16. The Tilak Raj vs. Bhagat Ram and another, 1997 (1) S.J.J. 84, this Court has also held that once the defendant has failed to establish his adverse possession for the statutory period, a suit for possession based on title cannot be dismissed as being time barred on the ground that the same was filed after the expiry of twelve years from the date of dispossession."
23. Thus, as far as this Court is concerned, the consistent view taken by it, is that once the defendant has failed to establish the plea of adverse possession for the statutory period, a suit for possession based on title cannot be dismissed as being time ::: Downloaded on - 06/10/2018 22:58:23 :::HCHP 9 barred on the ground that the same was filed after the expiry of twelve years from the date of dispossession.
24. Adverting to the plea of adverse possession raised by .
the defendant, it would be seen that a very stereotype plea has been raised wherein defendant has claimed the land in question to be in his possession since 1975 as would be evident from para
-4 of the written statement, which reads thus:
"4.The contents of para-4 as alleged are wrong and hence denied. Replying defendant is owner in possession of land in his occupation over which he has raised 4 storeyed house much prior to Dec. 1981. Plaintiff is ceased to have any right title and interest of any kind over any portion of area in question which is covered by built up construction of replying defendant and in his possession. The claim of plaintiff is barred by limitations. Even otherwise, the continuous, open, peaceful and uninterrupted possession of replying defendant on the spot has matured into complete ownership. The claim of the plaintiff is vague, indefinite and confusing. He has not disclosed as to in respect of which particular area he is claiming decree for possession. Since there is no merit and substance in his claim, therefore, suit merit outright dismissal. As submitted earlier above, even if any land is found to be belonging to plaintiff even then, since same is in possession of the replying defendant continuously since 1975, therefore, possession of the replying defendant which has been throughout to the knowledge of the plaintiff has matured into complete ownership."
25. It would be noticed that no exact date of possession has been set out in the pleadings. As per settled law, mere ::: Downloaded on - 06/10/2018 22:58:23 :::HCHP 10 possession is not enough to prove the plea of adverse possession and it does not result in conversion of peaceful possession into adverse possession.
.
26. This issue has been considered in detail by learned Division Bench of this Court in CWP No. 306 of 2016, titled as Satpal vs. State of H.P., decided on 08.08.2016, wherein, it was observed as under:-
"22. Moreover, the plea of adverse possession as raised by the petitioner is absolutely vague as the petitioner has not cared to mention the date from which his possession in fact became adverse. This question assumes importance as the petitioner initially had set up a lawful title in himself.
23. In Kamla and others vs. Baldev Singh and others 2008(1) Shim. LC 215, this court has held as under:-
"........Moreover, in case defendant or his father 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. There ::: Downloaded on - 06/10/2018 22:58:23 :::HCHP 11 were no allegations as to when the possession became adverse, in which year or month or in what manner and the simple general allegation made by the defendant in the alternative were accepted by the trial .
Court without looking into the question that the original possession of the defendant over the suit land or that of his father was permissive being an owner and it never became adverse as against the true owner and if it became adverse in what manner and from which date, month or year. The permissive possession as owner does not itself become adverse as against the true owner until and unless some overt act is done by the defendant to show his hostile title towards the true owner which pleadings were very much lacking in the written statement and as such, the defendant was never proved to be in adverse possession of the suit land as owner. Those findings were rightly reversed by the learned first Appellate Court and the learned first Appellate Court had rightly observed that there was complete lack of animus on the part of the defendant to hold the suit land adversely to the plaintiffs. It was also observed that it has also not been shown as to what time possession of the defendant became hostile to that of the plaintiffs which had ripened into ownership. To my mind, there was nothing for the trial Court to conclude that the defendant has become owner by way of adverse possession in the absence of specific pleadings or proof and, therefore, the 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."::: Downloaded on - 06/10/2018 22:58:23 :::HCHP 12
24. 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 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 ::: Downloaded on - 06/10/2018 22:58:23 :::HCHP 13 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. "
25. 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 ::: Downloaded on - 06/10/2018 22:58:23 :::HCHP 14 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."
26. 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."
27. What is adverse possession has been dealt in detail in Para 10 of Satpal's case supra, which reads thus:-
"10. Now, adverting to the question of adverse possession, 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 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 owner's title must be peaceful, open and continuous. It is equally settled that a person pleading adverse possession has no equities in his favour and since such a person is trying to defeat the rights of the true owner, it is for him to clearly ::: Downloaded on - 06/10/2018 22:58:23 :::HCHP 15 plead and establish necessary facts to establish his adverse possession. In the eyes of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Even non-use of the property by the owner for a long time .
won't affect his title."
28. Moreover, the plea of adverse possession is otherwise not available to the defendant as in the earlier part of the written statement he has clearly claimed to be in permissive possession when he claimed that the land bearing khasra Nos. 638, 639, 640 and 642 were agreed to be sold by the plaintiff and by his mother and the defendant was in physical possession thereof. Therefore, since the defendant himself claimed to be in permissive possession, therefore, there is no question of his being in adverse possession. Obviously, therefore, the suit filed by the plaintiff on the basis of title cannot be held to be beyond the period of limitation.
29. All the substantial questions of law including the question of limitation are answered accordingly.
30. In view of the aforesaid discussion, I find no merit in this appeal and consequently the same is dismissed, leaving the parties to bear their own costs.
October 3, 2018 (Tarlok Singh Chauhan),
(sanjeev) Judge
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