Punjab-Haryana High Court
Raghbir Singh vs State Of Haryana And Ors on 12 January, 2024
Author: Sudeepti Sharma
Bench: Sureshwar Thakur, Sudeepti Sharma
Neutral Citation No:=2024:PHHC:004435-DB
CWP-13855 of 1995 (O&M) -1- 2024:PHHC:004435-DB
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP-13855 of 1995 (O&M)
Reserved on :12.12.2023.
Date of Decision:12.01.2024
Raghbir Singh (since deceased) represented by LRs
... Petitioners
Versus
State of Haryana and others
... Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MS. JUSTICE SUDEEPTI SHARMA
****
Present: Mr. R. S. Longia, Advocate,
for the petitioner.
Mr. Ankur Mittal, Addl. A.G., Haryana with
Mr. Saurabh Mago, DAG, Haryana and
Mr. P. P. Chahar, DAG, Haryana
****
SUDEEPTI SHARMA, J.
1. The petitioner (since deceased) represented through his LRs in the present writ petition has assailed the order dated 27.01.1995 (Annexure P-8) passed by the Assistant Collector Ist Grade, Pehowa, whereby the application filed by the Gram Panchayat, Sayonsar, under Section 7(2) of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter to be referred to as "the Act of 1961") was disposed of holding the respondent (the petitioner herein) in unauthorised possession since 01.04.1976 and was ordered to be evicted from the land of the Gram Panchayat with immediate effect. Against the said order dated 27.01.1995 (Annexure P-8), the respondent (the petitioner herein) preferred an appeal and the same was dismissed vide order dated 15.03.1995 (Annexure P-9) 1 of 15 ::: Downloaded on - 16-01-2024 23:41:55 ::: Neutral Citation No:=2024:PHHC:004435-DB CWP-13855 of 1995 (O&M) -2- 2024:PHHC:004435-DB passed by the Collector, Kurukshetra, and further he filed a revision against the order dated 15.03.1995 and the said revision was also dismissed vide order dated 26.07.1995 (Annexure P-10) passed by the learned Commissioner, Ambala Division.
2. The brief facts of the present case are that Gram Panchayat, Sayonsar, filed an application under Section 7(2) of the Act of 1961 in the Court of Assistant Collector 1st Grade, Pehowa, with the averments that the land in dispute belongs to the Gram Panchayat and the petitioner (in the present writ petition) is in unauthorised possession of the same and he should be evicted and possession be got handed over to the Gram Panchayat. The Assistant Collector concerned summoned the petitioner (in the present writ petition) who came in the Court and filed written statement in defence against the suit, with the averments that he is in long possession of the land and the Gram Panchayat has nothing to do with the same. The Assistant Collector concerned afforded opportunities to lead evidence to both the parties and after hearing both the parties, admitted the adverse possession of the petitioner (in the present writ petition) for the last more than 12 years. Holding the petitioner (in the present writ petition) as owner vide order dated 22.04.1993. Assistant Collector 1st Grade, Pehowa dismissed the ejectment petition of the Gram Panchayat. Feeling aggrieved against the said order dated 22.04.1993, Gram Panchayat, Sayonsar, preferred an appeal in the Court of Collector, Kurukshetra. The Collector, Kurukshetra, after hearing both the parties, set aside the order dated 22.04.1993 passed by the Assistant Collector 1st Grade, Pehowa, vide his order dated 30.08.1993 and held that the possession of the petitioner starts as per the Jamabandies for the year 1976-77 and the case needs reconsideration.
2 of 15 ::: Downloaded on - 16-01-2024 23:41:55 ::: Neutral Citation No:=2024:PHHC:004435-DB CWP-13855 of 1995 (O&M) -3- 2024:PHHC:004435-DB The case was remanded back to the Assistant Collector with a direction that the case should be decided afresh after hearing both the parties. On the receipt of the case file, Assistant Collector afforded opportunities to both the parties to lead their evidence. The Assistant Collector after hearing both the parties, vide order dated 27.01.1995 ordered the ejectment of the petitioner (in the present writ petition) from the land of the Gram Panchayat with immediate effect and after admitting the possession of the petitioner (in the present writ petition) to be illegal from 01.04.1976, imposed a penalty of Rs.9,20,000/- @ Rs.10,000/- per hectare. Feeling aggrieved against the order dated 27.01.1995 passed by the Assistant Collector 1st Grade, the petitioner herein filed an appeal in the Court of Collector, Kurukshetra. The Collector, Kurukshetra, after hearing both the parties, dismissed the appeal of the petitioner vide his order dated 15.03.1995 and reduced the rate of penalty from Rs.10,000/- per hectare to Rs.7500/- per hectare and held that as per the Jamabandies for the years 1976-77, 1981-82 and 1986-87 in the Column No.5 of ownership, Panchayat Deh is entered and in Column No.6 of cultivation, the name of Raghbir Singh son of Mewa Singh 'Sakan Deh Tehat Charand' is entered and in Column No.11, adverse possession without payment of rent is entered. The possession of the petitioner is, as per Jamabandi for the year 1976-77 and no case of ownership is made out. The petitioner Raghbir Singh feeling aggrieved against the impugned order dated 15.03.1995 passed by the Collector, Kurukshetra, filed the revision in the Court of the learned Commissioner, Ambala Division, under Section 13-B of the Act of 1961. The learned Commissioner, Ambala Division dismissed the revision filed by the present petitioner vide order dated 26.07.1995. The relevant portion of the order is reproduced as under:-
3 of 15 ::: Downloaded on - 16-01-2024 23:41:55 ::: Neutral Citation No:=2024:PHHC:004435-DB CWP-13855 of 1995 (O&M) -4- 2024:PHHC:004435-DB "4. I have heard the counsel for both the parties in detail and perused the case file carefully. The main plea of the counsel for the petitioner has been that since the petitioner is in possession of the land in question for the last more than 12 years, so the question of title is not prima-facie proved and the plea of the petitioner is discarded, and in the case of question of title, being prima-facie involved, the same is to be decided in a regular suit. To decide as whether the question of title is involved or not, the Revenue Officers have only revenue record before them. In this case, there is no decree or evidence in favour of the petitioner to prove the question of title.
As per revenue record, the ownership of the Gram Panchayat over the land in dispute is proved. This land is Grazing Field and the petitioner is in adverse possession of the same without payment of any rent. Therefore, it is undoubtedly established from the revenue record that the land is under the ownership of the Gram Panchayat. Otherwise also, any grazing land vests with the Gram Panchayat. As such, no question of title is made out in the present case. As far as question of adverse possession is concerned, the petitioner could have claimed the benefit under Section 4(3) of the Punjab Village Common Lands Act if he had been in possession of the land in question preceding 12 years from the commencement of the Act. The rulings cited by the petitioner are not applicable to the present case as the facts of that case are different.
5. In view of the above, I do not find any illegality or infirmity in the orders of the Courts below, under challenge in the present revision, and finding no ground for interference, dismiss the present revision."
3. Learned counsel for the petitioner contend that the orders as impugned in the present writ petition of the Courts below are non-speaking and non- reasoned, since the learned Courts below did not discuss the evidence produced by 4 of 15 ::: Downloaded on - 16-01-2024 23:41:55 ::: Neutral Citation No:=2024:PHHC:004435-DB CWP-13855 of 1995 (O&M) -5- 2024:PHHC:004435-DB the petitioner.
4. Per contra, Mr. P. P. Chahar, learned DAG, Haryana has argued on the lines of the impugned orders order dated 27.01.1995 (Annexure P-8), order dated 15.03.1995 (Annexure P-9) and order dated 26.07.1995 (Annexure P-10).
5. We have heard learned counsel for both the parties and have perused the impugned order and the records as available on the case file, we conclude as under:-
i) In the present case Section 7 of the Act of 1961 is relevant and therefore the same is reproduced as under:-
"7. Power to put Panchayat in possession of certain lands.-- (1) An Assistant Collector of the first grade having jurisdiction in the village may, either suo moto or on an application made to him by a Panchayat ro an inhabitant of the village or the Block Development and Panchayat Officer or Social Education and Panchayat Officer, or any other Officer authorised by the Block Development and Panchayat Officer, after making such summary enquiry as he may deem fit and in accordance with such procedure as may be prescribed, eject any person who is in wrongful or unauthorised possession of the land or other immoveable property in the shamilat deh of that village which vests or is deemed to have been vested in the Panchayat under this Act and put the panchayat in possession thereof and for so doing the Assistant Collector of the first grade may exercise the powers of a revenue court in relation to the execution of a decree for possession of land under the Haryana Tenancy Act, 1887.
Provided that if in any such proceedings the question of title is raised and proved prima facie on the basis of documents that the question of title is really involved, the Assistant Collector of the first grade shall record a finding to that effect and first decide the question 5 of 15 ::: Downloaded on - 16-01-2024 23:41:55 ::: Neutral Citation No:=2024:PHHC:004435-DB CWP-13855 of 1995 (O&M) -6- 2024:PHHC:004435-DB of title in the manner laid down hereinafter."
A perusal of the aforesaid proviso to Section 7 of the Act of 1961 shows that the question of title if raised that should be proved on the basis of documents.
ii) A perusal of the impugned orders shows that the petitioner was unable to prove his adverse possession since last 12 years as claimed by him before the Courts below.
iii) Further, a perusal of the impugned orders show that there was no documents or evidence in favour of the petitioner to prove the question of ttile. And as per the revenue record, the ownership of the Gram Panchayat over the land in dispute was proved and the land is grazing field as per the revenue record and the petitioner was in adverse possession of the same without the payment of any rent. Otherwise also, grazing land vests with the Gram Panchayat.
iv) The Hon'ble Supreme Court of India in a judgment of State of Rajasthan versus Harphool Singh (Dead) through his Lrs 2000(5) SCC 652 held that a plea of adverse possession cannot be upheld on the basis of vague statement. The relevant paras discussing the title by adverse possession is reproduced as under:-
"11. So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involve destruction of right/title of the State to immovable property and conferring upon a third party encroacher title where, he had none. The decision in P. Lakshmi Reddy vs L. Lakshmi Reddy [AIR 1957 SC 314], adverted to the
6 of 15 ::: Downloaded on - 16-01-2024 23:41:55 ::: Neutral Citation No:=2024:PHHC:004435-DB CWP-13855 of 1995 (O&M) -7- 2024:PHHC:004435-DB ordinary classical requirement - that it should be nec vi nec clam nec precario - that is the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. It was also observed therein that whatever may be the animus or intention of a person wanting to acquire title by adverse possession, his adverse possession cannot commence until he obtains actual possession with the required animus. In the decision reported in Secretary of State for India in Council vs Debendra Lal Khan (1933) LR (LXI) I.A. 78 (PC), strongly relied for the respondents, the Court laid down further that it is sufficient that the possession be overt and without any attempt at concealment so that the person against whom time is running, ought if he exercises due vigilance, to be aware of what is happening and if the rights of the crown have been openly usurped it cannot be heard to plead that the fact was not brought to its notice. In Annasaheb Bapusaheb Patil & Others vs Balwant alias Balasaheb Babusaheb Patil (dead) by Lrs [AIR 1995 SC 895], it was observed that a claim of adverse possession being a hostile assertion involving expressly or impliedly in denial of title of the true owner, the burden is always on the person who asserts such a claim to prove by clear and unequivocal evidence that his possession was hostile to the real owner and in deciding such claim, the Courts must have regard to the animus of the person doing those acts.
12. The High Court without even a cursory scrutiny of the legality and propriety of the findings in order to ascertain at least as to whether they are based upon any legally acceptable evidence and the necessary legal ingredients of 'adverse possession stood substantiated, mechanically seem to have accorded its approval to the claim of title made by the plaintiff merely on the basis that both the courts below have found the plaintiff to be the owner of the property. Indisputably the State was the owner and the question is as to whether its title has been extinguished and the plaintiff had acquired 7 of 15 ::: Downloaded on - 16-01-2024 23:41:55 ::: Neutral Citation No:=2024:PHHC:004435-DB CWP-13855 of 1995 (O&M) -8- 2024:PHHC:004435-DB and perfected title to the same by adverse possession. In order to substantiate such a claim of adverse possession the ingredients of open, hostile and continuous possession with the required animus, as laid down by Courts should be proved for a continuous period of 30 years. Admittedly, the plaintiff claims to have put up the construction in 1955 and absolutely there is no concrete and independent material to prove the same, except an oral assertion. The story of his father having been there even earlier to 1955 was not projected either before the A.D.M. when the plaintiff submitted his defence, or in the plaint when the suit was filed but for the first time introduced only at the stage of trial when examined as PW1. When the property was a vacant land before the alleged construction was put up, to show open and hostile possession which could alone in law constitute adverse to the State, in this case, some concrete details of the nature of occupation with proper proof thereof would be absolutely necessary and mere vague assertions cannot by themselves be a substitute for such concrete proof required of open and hostile possession. Even if the plaintiffs allegations and claims, as projected in the plaint, are accepted in toto, the period of so-called adverse possession would fall short by 5 years of the required period. There is no scrap of paper or concrete material to prove any such possession of the plaintiffs father nor was there any specific finding supported by any evidence, in this regard. The father of the plaintiff was also an employee of the Telephone Department. It is not as though, if their story of such long possession is true, there would be no correspondence or record to show that his father or the plaintiff were there before 1981. The relevance of the electricity bill to the property in question itself has been questioned and no effort has been taken by the plaintiff to correlate the electricity and water bill to the property claimed by examining any official witnesses connected with those records. While that be the factual position, it is beyond comprehension as to how anyone expected to reasonably and judiciously adjudicate a claim of 8 of 15 ::: Downloaded on - 16-01-2024 23:41:55 ::: Neutral Citation No:=2024:PHHC:004435-DB CWP-13855 of 1995 (O&M) -9- 2024:PHHC:004435-DB title by objective process of reasoning could have come to the conclusion that the legal requirement of 30 years of continuous, hostile and open possession with the required animus stood satisfied and proved on such perfunctory and slender material on record in the case. The first appellate court as well as the High Court ought to have seen that perverse findings not based upon legally acceptable evidence and which are patently contrary to law declared by this Court cannot have any immunity from interference in the hands of the appellate authority. The trial court has jumped to certain conclusions virtually on no evidence whatsoever in this connection. Such lackadaisical findings based upon mere surmises and conjectures, if allowed to be mechanically approved by the first appellate court and the second appellate court also withdraws itself into recluse apparently taking umbrage under Section 100, Cr.P.C., the inevitable casualty is justice and approval of such rank injustice would only result in gross miscarriage of justice."
v) The Hon'ble Apex Court in another judgment in Annakili versus A. Vedanayagam and others 2007(4) RCR (Civil) 780 held as under:-
22. Claim by adverse possession has two elements : (1) the possession of the defendant should become adverse to the plaintiff;
and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, 9 of 15 ::: Downloaded on - 16-01-2024 23:41:55 ::: Neutral Citation No:=2024:PHHC:004435-DB CWP-13855 of 1995 (O&M) -10- 2024:PHHC:004435-DB for a period of more than 12 years without anything more do not ripen into a title.
23. In Saroop Singh v. Banto & Ors. [(2005) 8 SCC 330], in which one of us was a member, this Court held as under:-
29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. (See Vasantiben Prahladji Nayak v.
Somnath Muljibhai Nayak, 2004(2) RCR (Civil) 276:2004(3) SCC 376).
30. "Animus possidendi" is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd. Mohd. Ali v. Jagadish Kalita Para 21.)"
vi) The Hon'ble Apex Court in P.T. Munichikkanna Reddy and others versus Revamma and others 2007(6) SCC 59 held that a person in possession of land for over 50 years but not knowing who was the owner-does not become owner by adverse possession. In this context, the relevant paras are reproduced as under:-
"5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessoror on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. [See Downing v. Bird, 100 So. 2d 57 (Fla. 1958), Arkansas Commemorative Commission v. City of Little Rock, 227 Ark. 1085, 303 S.W.2d 569 (1957); Monnot 10 of 15 ::: Downloaded on - 16-01-2024 23:41:55 ::: Neutral Citation No:=2024:PHHC:004435-DB CWP-13855 of 1995 (O&M) -11- 2024:PHHC:004435-DB v. Murphy, 207 N.Y. 240, 100 N.E. 742 (1913); City of Rock Springs v. Sturm, 39 Wyo. 494, 273 P. 908, 97 A.L.R. 1 (1929).]
6. Efficacy of adverse possession law in most jurisdictions depend on strong limitation statutes by operation of which right to access the court expires through effluxion of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or color of title. (See American Jurisprudence, Vol. 3, 2d, Page 81). It is important to keep in mind while studying the American notion of Adverse Possession, especially in the backdrop of Limitation Statutes, that the intention to dispossess can not be given a complete go by. Simple application of Limitation shall not be enough by itself for the success of an adverse possession claim.
7. To understand the true nature of adverse possession, Fairweather v St Marylebone Property Co [1962] 2 WLR 1020, [1962] 2 All ER 288 can be considered where House of Lords referring to Taylor v. Twinberrow [1930] 2 K.B. 16, termed adverse possession as a negative and consequential right effected only because somebody else's positive right to access the court is barred by operation of law:
"In my opinion this principle has been settled law since the date of that decision. It formed the basis of the later 11 of 15 ::: Downloaded on - 16-01-2024 23:41:55 ::: Neutral Citation No:=2024:PHHC:004435-DB CWP-13855 of 1995 (O&M) -12- 2024:PHHC:004435-DB decision of the Divisional Count in Taylor v. Twinberrow [1930] 2 K.B. 16, in which it was most clearly explained by Scrutton, that it was a misunderstanding of the legal effect of 12 years adverse possession under the Limitation Acts to treat it as if it gave a title whereas its effect is " merely negative " and, where the possession had been against a tenant, its only operation was to bar his right to claim against the man in possession (see loc. cit. p. 23). I think that this statement needs only one qualification: a squatter does in the end get a title by his possession and the indirect operation of the Act and he can convey a fee simple.
If this principle is applied, as it must be, to the Appellant's situation, it appears that the adverse possession completed in 1932 against the lessee of No. 315 did not transfer to him either the lessee's' term or his rights against or has obligations to the landlord who held the reversion. The appellant claims to be entitled to keep the landlord at bay until the expiration of the term by effluxion of time in 1992: but, if he is, it cannot be because he is the transferee or holder of the term which was granted to the lessee. He is in possession by his own right, so far as it is a right: and it is a right so far as the statutes of limitation which govern the matter prescribe both when the rights to dispossess him are to be treated as accruing and when, having accrued, they are thereafter to be treated as barred. In other words, a squatter has as much protection as but no more protection than the statutes allow: but he has not the title or estate of the owner or owners whom he has dispossessed nor has he in any relevant sense an estate "commensurate with" the estate of the dispossessed. All that this misleading phrase can mean is that, since his possession only defeats the 12 of 15 ::: Downloaded on - 16-01-2024 23:41:55 ::: Neutral Citation No:=2024:PHHC:004435-DB CWP-13855 of 1995 (O&M) -13- 2024:PHHC:004435-DB rights of those to whom it has been adverse, there may be rights not prescribed against, such, for instance, as equitable easements, which axe no less enforceable against him in respect of the land than they would have been against the owners he has dispossessed."
Also see Privy Council's decision in Chung Ping Kwan and Others v. Lam Island Development Company Limited (Hong Kong) [(1997) AC 38] in this regard.
9. Therefore, to assess a claim of adverse possession, two- pronged enquiry is required:
1. Application of limitation provision thereby jurisprudentially "willful neglect" element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.
2. Specific Positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper owner, to the adverse possessor.
Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.
It is interesting to see the development of adverse possession law in the backdrop of the status of Right to Property in the 21st Century. The aspect of stronger Property Rights Regime in general, coupled with efficient legal regimes furthering the Rule of Law argument, has redefined the thresholds in adverse possession law not just in India but also by the Strasbourg Court. Growth of Human Rights jurisprudence in recent times has also palpably affected the developments in this regard."
6. A perusal of the verdicts of the Hon'ble Apex Court (supra), concludes 13 of 15 ::: Downloaded on - 16-01-2024 23:41:55 ::: Neutral Citation No:=2024:PHHC:004435-DB CWP-13855 of 1995 (O&M) -14- 2024:PHHC:004435-DB that the essential ingredient for establishing adverse possession against any individual, the requirement is the possession of minumum 12 years and in case of the Government, it is a period of 30 years or more and in the present case, the petitioner was having the possession of the disputed lands for a period of about 8 to 10 years.
7. In the present case, the petitioner was not able to prove his adverse possession before the Courts below. Further, as per the revenue record, the ownership of Gram Panchayat concerned over the land in dispute was proved and the land was grazing field.
8. A perusal of orders impugned in the present writ petition shows that according to Jamabandies for the years 1976-77, 1981-82 and 1986-87 in the Column No.5 of ownership, Panchayat Deh is entered and in Column No.6 of cultivation, the name of Raghbir Singh son of Mewa Singh son of Daya Ram 'Sakan Deh Tehat Charand' is entered and in Column No.11, adverse possession without payment of rent is mentioned. Further, in the Column No.11 unauthorised possession without payment of rent is mentioned, from which it is clear that as per Jamabandi for the year 1976-77 the possession of Gram Panchayat, Sayonsar is shown, therefore, the petitioner could not prove his ownership.
9. Further, the petitioner before the Courts below could not adduce any evidence to prove even his prima facie possession as owner. Since the possession of the petitioner was illegal and unauthorised and without the payment of rent, therefore the penalty has rightly been imposed upon the petitioner.
10. In view of the discussion made above, the present writ petition is dismissed. The impugned orders order dated 27.01.1995 (Annexure P-8), order 14 of 15 ::: Downloaded on - 16-01-2024 23:41:55 ::: Neutral Citation No:=2024:PHHC:004435-DB CWP-13855 of 1995 (O&M) -15- 2024:PHHC:004435-DB dated 15.03.1995 (Annexure P-9) and order dated 26.07.1995 (Annexure P-10) are affirmed.
11. Since the main petition is decided, all the pending applications are disposed of accordingly.
(SURESHWAR THAKUR) (SUDEEPTI SHARMA)
JUDGE JUDGE
January 12, 2024
dinesh
Whether speaking : Yes/No
Whether reportable : Yes/No
Neutral Citation No:=2024:PHHC:004435-DB
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