Himachal Pradesh High Court
Chandi Prasad vs State Of H. P. And Others on 25 May, 2017
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
CWP No. 976 of 2017 with
RSA No. 222 of 2013.
.
Reserved on: 19.5.2017.
Decided on: 25th May, 2017
1. CWP No. 976 of 2017
Chandi Prasad ...Petitioner.
Versus
State of H. P. and others ...Respondents.
2. RSA No. 222 of 2013
State of H.P. ....Appellant
r Versus
Chandi Parshad ...Respondent.
___________________________________________________________________
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting? 1 No
For the Petitioner: Mr. G.R. Palsra, Advocate and for the
respondent in RSA No. 222 of 2013.
For the Respondent: Mr. V.S. Chauhan, Addl. A.G. with Mr.
Puneet Rajta, Dy. A.G. and Mr.J.S. Guleria,
Asstt. A.G. for the appellant in RSA No.
222 of 2013.
_________________________________________________________
Justice Tarlok Singh Chauhan, Judge:
As two, out of the three pieces of land, are the subject matter of both, Regular Second Appeal as also the writ petition, we deem it proper to club the same.
1Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 28/05/2017 00:01:20 :::HCHP 2
2. Since the proceedings in Regular Second Appeal (for short 'appeal') came to be instituted by Chandi Prasad .
prior to the State initiated action against him, which forms subject matter of the writ petition, we deem it proper to first adjudicate and decide the appeal.
RSA No. 222 of 2013:
3. The facts are not in dispute. Chandi Prasad filed a suit for permanent prohibitory and mandatory injunction on the plea that the land comprised in Khata No. 162 min, Khatauni No. 193 min, Khasra No. 750/209 measuring 10- 16-13 bighas and the land comprised in Khata No. 162 Khatauni No. 193, Khasra No. 500 measuring 0-6-8 bigha, situated at Village Chadyara, P.O. Ghutker, Tehsil Sadar, District Mandi was though shown in the ownership and possession of the State of H.P. in the revenue record, however this entry was wrong to some extent as it was he who was in exclusive possession of the land comprised in Khasra No. 750/409/1 measuring 1-17-0 bigha and Khasra No. 500 measuring 0-6-8 bigha since the settlement operation. The basis for injunction was the plea of adverse possession raised by Chandi Prasad. However, he failed to prove such plea, but having been found in possession of the suit land, the suit was partly decreed for injunction and the ::: Downloaded on - 28/05/2017 00:01:20 :::HCHP 3 State was restrained from interfering in the peaceful possession of the suit land.
.
4. The judgment and decree dated 27.2.2012 was assailed only by the State before the learned appellate Court, which however came to be dismissed vide judgment and decree passed by the learned appellate court on 30.8.2012.
5. It is against the judgment and decree passed by the Courts below that the State has preferred the present appeal, which was admitted on 11.4.2013 on the following substantial questions of law:
1. Whether the Courts below has mis-appropriated and mis-appreciated the evidence on record?
2. Whether the first appellate Court has wrongly held the respondents to be the owners of the suit land by way of adverse possession?
6. We would first advert to the substantial question of law No.2 as in our considered opinion, this question does not at all arise for consideration. The first appellate Court has nowhere held Chandi Prasad to have become owner of the suit land by way of adverse possession and has rather endorsed the findings of the learned trial Court that since he is in settled possession of the property he therefore cannot be dispossessed from the same save and ::: Downloaded on - 28/05/2017 00:01:20 :::HCHP 4 except in accordance with law. This would be clearly evident from para 38 of the judgment, which reads thus:
.
"38. The learned trial Court has held that the plaintiff is in settled possession of the suit land and he cannot be dispossessed from the same without following due process of law. After re- appreciating of the pleadings of the parties and evidence on record, I also reached at the same conclusion that the plaintiff is in settled possession of the suit land and he cannot be dispossessed from the suit land, otherwise than in due course of law. Thus, the learned trial Court has passed the impugned judgment and decree after proper appreciation of oral and documentary evidence. Hence, the point No.1 is decided against the appellant."
7. Now, adverting to the first question, it would be noticed r that both the learned Courts below have conclusively found Chandi Prasad to be in possession of the suit land and, therefore, it is on this basis that the injunction has been granted in his favour. Obviously, such possession is not even disputed by the State or else there was no question of their having issued eviction notices against him (Chandi Prasad), which otherwise form the subject matter of CWP No. 976 of 2017.
8. It is by now well settled legal position that where a person is in settled possession of the property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the actual owner of the property, except by recourse to law and reference in this regard can conveniently be made to the judgment of the ::: Downloaded on - 28/05/2017 00:01:20 :::HCHP 5 Hon'ble Supreme Court in Krishna Ram Mahale Vs. Shobha Venkat Rao, AIR 1989 SC 2097. Relevant .
observation of the judgment reads thus:
"8.........It is a well-settled law in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. If any authority were needed for that proposition, we could refer to the decision of a Division Bench of this Court in Lallu Yeshwant Singh v. Rao Jagdish Singh, (1968) 2 SCR 203 at pp.208-210: (AIR 1968 SC 620 at pp.622-23). This Court in that judgment cited with approval the well-known passage from the leading Privy Council case of Midnapur Zamindary Company Limited v. Naresh Narayan Roy 51 Ind App 293 at p. 299: (AIR 1924 PC 144) where it has been observed (p-208) (of SCR): (at p.622 of AIR):
"In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court."
9. This legal position was reiterated by the Hon'ble Supreme Court in Walter Louis Franklin(Dead) through LRs Vs. George Singh(Dead) through LRs, (1997) 3 SCC
503.
10. Yet, again when the matter came before the Hon'ble three Judges in Rame Gowda (Dead) by LRs. Vs. M.Varadappa Naidu(Dead) by LRs & anr (2004) 1 SCC ::: Downloaded on - 28/05/2017 00:01:20 :::HCHP 6 769, it was reiterated by the Hon'ble Supreme Court that an occupant in "settled possession" cannot be dispossessed .
without recourse to law. The relevant observations are re-
produced here-in-under:
"6. The law in India, as it has developed, accords with the jurisprudential thought as propounded by Salmond. In Midnapur Zamindary Co. Ltd. Vs. Kumar Naresh Narayan Roy and Ors. 1924 PC 144, Sir John Edge summed up the Indian law by stating that in India persons are not permitted to take forcible possession;
they must obtain such possession as they are entitled to through a Court.
7. The thought has prevailed incessantly, till date, the last and latest one in the chain of decisions being Ramesh r Chand Ardawatiya Vs. Anil Panjwani (2003) 7 SCC
350. In-between, to quote a few out of severals, in Lallu Yeshwant Singh (dead) by his legal representative Vs. Rao Jagdish Singh and others (1968) 2 SCR 203, this Court has held that a landlord did commit trespass when he forcibly entered his own land in the possession of a tenant whose tenancy has expired. The Court turned down the submission that under the general law applicable to a lessor and a lessee there was no rule or principle which made it obligatory for the lessor to resort to Court and obtain an order for possession before he could eject the lessee. The court quoted with approval the law as stated by a Full Bench of Allahabad High Court in Yar Mohammad Vs. Lakshmi Das (AIR 1959 All. 1,4), "Law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess a person in actual possession without having recourse to a court. No person can be allowed to become a judge in his own cause."(AIR p.5, para 13) In the oft- quoted case of Nair Service Society Ltd. Vs. K.C. Alexander and Ors. (1968) 3 SCR 163, this Court held that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. When the facts disclose no title in either party, possession alone decides. The court quoted Loft's maxim - 'Possessio ::: Downloaded on - 28/05/2017 00:01:20 :::HCHP 7 contra omnes valet praeter eur cui ius sit possessionis (he that hath possession hath right against all but him that hath the very right)' and said: (AIR p.1175, para
20).
.
"A defendant in such a case must show in himself or his predecessor a valid legal title, or probably a possession prior to the plaintiff's and thus be able to raise a presumption prior in time".
In M.C. Chockalingam and Ors. Vs. V. Manickavasagam and Ors. (1974) 1 SCC 48, this Court held that the law forbids forcible dispossession, even with the best of title. In Krishna Ram Mahale (dead) by his Lrs. Vs. Mrs. Shobha Venkat Rao (1989) 4 SCC 131, it was held that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. In Nagar Palika, Jind Vs. Jagat Singh, Advocate (1995) 3 SCC 426, this Court held that disputed questions of title r are to be decided by due process of law, but the peaceful possession is to be protected from the trespasser without regard to the question of the origin of the possession. When the defendant fails in proving his title to the suit land the plaintiff can succeed in securing a decree for possession on the basis of his prior possession against the defendant who has dispossessed him. Such a suit will be founded on the averment of previous possession of the plaintiff and dispossession by the defendant.
8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of ::: Downloaded on - 28/05/2017 00:01:20 :::HCHP 8 title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of .
being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of he cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.
9. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram and Ors. Vs. Delhi Administration (1968) 2 SCR 455, Puran Singh and Ors. Vs. The State of Punjab (1975) 4 SCC 518 r and Ram Rattan and Ors. Vs. State of Uttar Pradesh (1977) 1 SCC 188. The authorities need not be multiplied. In Munshi Ram & Ors.'s case (supra), it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and re- instate himself provided he does not use more force than is necessary.
Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh and Ors.'s case (supra), the Court clarified that it is difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into settled possession. The 'settled possession' must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase 'settled possession' does not carry any special charm or magic ::: Downloaded on - 28/05/2017 00:01:20 :::HCHP 9 in it; nor is it a ritualistic formula which can be confined in a strait-jacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical .
possession. The court laid down the following tests which may be adopted as a working rule for determining the attributes of 'settled possession'(SCC p.527, para 12):
i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;
ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;
iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and
iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession.
10. In the cases of Munshi Ram and Ors.(supra) and Puran Singh and Ors. (supra), the Court has approved the statement of law made in Horam Vs. Rex AIR 1949 Allahabad 564, wherein a distinction was drawn between the trespasser in the process of acquiring possession and the trespasser who had already accomplished or completed his possession wherein the true owner may be treated to have acquiesced in; while the former can be obstructed and turned out by the true owner even by using reasonable force, the latter, may be dispossessed by the true owner only by having recourse to the due process of law for re-acquiring possession over his property."
::: Downloaded on - 28/05/2017 00:01:20 :::HCHP 1011. The Courts below have correctly appreciated the evidence as also the pleadings of the parties and the .
substantial questions of law are answered accordingly.
12. In view of the aforesaid discussion and bearing in mind the settled legal position, we find no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their costs.
CWP No. 976 of 2017.
13. Issue notice. Mr. V.S. Chauhan, learned Additional Advocate General waives service of notice on behalf of the respondents. At the outset, it is represented by learned Additional Advocate General that as only the orders passed by the adjudicatory authority have been questioned, therefore, they do not intend to file any reply and would be relying upon the material already placed on record.
14. The instant writ petition emanates from the three orders dated 2.4.2014, Annexure P-1 (colly.) passed by Assistant Collector 1st Grade, Sadar, District Mandi, H.P. for eviction of Chandi Prasad from the Government land comprised in:
(i) Khasra No. 500 measuring 0-6-8 bighas,
(ii) Khasra No. 750/409/1 measuring 0-15-11 bighas and ;
(iii) Khasra No. 555/1 measuring 0-11-11 bigha.::: Downloaded on - 28/05/2017 00:01:20 :::HCHP 11
15. It is not in dispute that the ejectment orders have been upheld even by the Financial Commissioner .
which is the final authority under the provisions of the H.P. Land Revenue Act.
16. Indubitably, as regards Khasra Nos. 500measuring 0-6-8 bighas and 750/409/1 measuring 0-15-11 bighas, Chandi Prasad himself had approached the Civil Court (RSA No. 222 of 2013) which though found him in possession of these lands, however, a categorical finding was returned that such possession has not ripened into adverse possession by the learned trial Court. The learned trial Court negated the plea of ownership by way of adverse possession and decreed the suit only with respect to injunction as it found Chandi Prasad to be in possession of the aforesaid land. It is further not in dispute that such findings rendered by the learned trial Court were not assailed by Chandi Prasad, who accepted the same and it is only the State Government, which initially filed first appeal, which was dismissed by the learned first Appellate Court and thereafter filed RSA No. 222 of 2013, which too, has been dismissed by us today (supra).
17. In that view of the matter, the plea of adverse possession as set up before the revenue authorities by Chandi Prasad obviously are not available to him as it is ::: Downloaded on - 28/05/2017 00:01:20 :::HCHP 12 more than settled that the findings recorded by the Civil court are binding on the revenue Courts and not vice versa.
.
18. Now, as regards Khasra No. 555/1, it would be noticed that no plea of adverse possession was raised qua this khasra number when he filed earlier suit regarding other Khasra Nos. 500 and 750/409/1, respectively.
19. Having failed to file a suit at that time, the plea that he is in continuous, peaceful, uninterrupted and hostile possession of these lands fall flat on the face.
20. Mr. G.R. Palsra, learned counsel for the petitioner (Chandi Prasad) would next contend that the learned authorities erred in deciding the case in a slipshod manner and were required to convert themselves as Civil Court, thereafter follow the procedure prescribed for the same and thereafter rendered its findings atleast qua Khasra No. 555, if not, other khasra numbers. Even this contention is equally without merit as Chandi Prasad has failed to establish his continuous, peaceful, uninterrupted and hostile possession over the aforesaid pieces of land, that too, for statutory period as prescribed.
21. Moreover, it has come on record that the proceedings against Chandi Prasad were already initiated in the year 1981-82 under the H.P. Roadside Control Act and thereafter proceedings for eviction were initiated ::: Downloaded on - 28/05/2017 00:01:20 :::HCHP 13 against Chandi Prasad vide orders dated7.8.1991 in File No. 174/91, therefore, the possession of Chandi Prasad cannot .
be regarded as either peaceful or continuous.
22. As noticed, the only plea put-forth by Chandi Prasad is that 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 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.
::: Downloaded on - 28/05/2017 00:01:20 :::HCHP 1423. 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 involves destruction of right/title of the State to immoveable property and conferring upon a third party encroacher title where he had none. (Refer: State of Rajasthan vs. Harphool Singh (dead) through his LRs (2000) 5 SCC
652).
24. r In P. Periasami vs. P. Periathambi (1995) 6 SCC 523, the Hon'ble Supreme Court ruled that:
"Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property."
25. In Karnataka Board of Wakf vs. Government of India and others (2004) 10 SCC 779, the Hon'ble Supreme Court held that one who pleads adverse possession should be very clear about the origin of title over the property. He must specifically plead it.
26. Over the years there has been a new paradigm to Limitation Act as the same has undergone a change. The burden of proof is now on the person who alleges his adverse possession, particularly once a party has proved its title. The starting point of limitation commences not from ::: Downloaded on - 28/05/2017 00:01:20 :::HCHP 15 the date when the right of ownership arises in favour of the original owner but from the date a party claims his .
possession to have become adverse.
27. Now, adverting to the plea of adverse possession, Chandi Prasad has not filed on record the pleadings of the case. However, what we can make out and gather from the orders passed by the various adjudicatory authorities is that the claim of Chandi Prasad was that he was coming in continuous, peaceful, uninterrupted and hostile possession over the land in dispute for more than 40 years. Chandi Prasad has not even cared to mention the date from which his possession actually became adverse.
28. This Court in Kamla and others vs. Baldev Singh and others 2008(1) Shim. LC 215, 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.::: Downloaded on - 28/05/2017 00:01:20 :::HCHP 16
There 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 r 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."
29. 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 ::: Downloaded on - 28/05/2017 00:01:20 :::HCHP 17 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 r 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 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. "
30. 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 ::: Downloaded on - 28/05/2017 00:01:20 :::HCHP 18 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 any evidence be permitted to be r 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."
31. 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."
32. Similar reiteration of law on the question of adverse possession over the public property can be found in ::: Downloaded on - 28/05/2017 00:01:20 :::HCHP 19 a detailed judgment rendered by this Court in CWP No. 4087 of 2014 titled Manoj Singh vs. Union of India and .
others, decided on 27.5.2015 and notably the said judgment was affirmed by the Hon'ble Supreme Court in SLP(C)No. 17169 of 2015, decided on 02.07.2015 except that the amount of costs awarded by this Court was reduced from `1,00,000/- to `25,000/- subject to the condition that the premises would be vacated by the petitioner therein within a period of three months from the order and it was further made clear that in case he does not voluntarily hand over the possession of the premises to the Estate Department within the stipulated period, the amount of costs awarded by this Court shall get restored.
33. It has to be remembered that whenever an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the court is duty bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/ title of the State to immovable property and give upper hand to the encroachers, unauthorized occupants or land grabbers.
34. In this context, it shall be fruitful to refer to the following observations of the Hon'ble Supreme Court in ::: Downloaded on - 28/05/2017 00:01:20 :::HCHP 20 Mandal Revenue Officer vs. Goundla Venkaiah and another (2010) 2 SCC 461:-
.
"47. In this context, it is necessary to remember that it is well neigh impossible for the State and its instrumentalities including the local authorities to keep every day vigilance/watch over vast tracts of open land owned by them or of which they are the public trustees. No amount of vigil can stop encroachments and unauthorised occupation of public land by unscrupulous elements, who act like vultures to grab such land, raise illegal constructions and, at times, succeeded in manipulating the State apparatus for getting their occupation/possession and construction regularized. It is our considered view that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the Court is duty bound to act with greater seriousness, care and r circumspection. Any laxity in this regard may result in destruction of right/title of the State to immovable property and give upper hand to the encroachers, unauthorised occupants or land grabbers.
48. In State of Rajasthan v. Harphool Singh (Dead) through Lrs. 2000 (5) SCC 652, this Court considered the question whether the respondents had acquired title by adverse possession over the suit land situated at Nohar-Bhadra Road at Nohar within the State of Rajasthan. The suit filed by the respondent against his threatened dispossession was decreed by the trial Court with the finding that he had acquired title by adverse possession. The first and second appeals preferred by the State Government were dismissed by the lower appellate Court and the High Court respectively. This Court reversed the judgments and decrees of the courts below as also of the High Court and held that the plaintiff-respondent could not substantiate his claim of perfection of title by adverse possession. Some of the observations made on the issue of acquisition of title by adverse possession which have bearing on this case are extracted below:-
"12. 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 involves destruction of right/title of the State to immovable property and ::: Downloaded on - 28/05/2017 00:01:20 :::HCHP 21 conferring upon a third-party encroacher title where he had none. The decision in P. Lakshmi Reddy v. L. Lakshmi Reddy adverted to the 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."
49. A somewhat similar view was expressed in A.A. Gopalakrishnan v. Cochin Devaswom Board 2007 (7) SCC 482. While adverting to the need for protecting the properties of deities, temples and Devaswom Boards, the Court observed as under:-
"The properties of deities, temples and Devaswom Boards, require to be protected and r safeguarded by their trustees/ archakas/ shebaits/ employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of "fences eating the crops" should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation."
35. Even otherwise, it is settled that all lands which are not the property of any person or which are not vested in a local authority, belong to the Government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This ::: Downloaded on - 28/05/2017 00:01:20 :::HCHP 22 presumption available to the Government is not available to any person or individual. Establishing title/possession for a .
period exceeding twelve years may be adequate to establish title in a declaratory suit or any other proceeding against any individual.
36. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit or any other proceeding for title against the Government. This follows from Article 112 of the Limitation Act, 1963, which prescribes a longer period of thirty years as limitation in regard to suits by Government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire State and it is not always possible for the Government to protect or safeguard its properties from encroachments. This was so held by the Hon'ble Supreme Court in R. Hanumaiah and another vs. Secretary to Government of Karnataka, Revenue Department and others (2010) 5 SCC 203 wherein it was held as under:
"19. Suits for declaration of title against the government, though similar to suits for declaration of title against private individuals differ significantly in some aspects. The first difference is in regard to the presumption available in favour of the government. All lands which are not the property of any person or ::: Downloaded on - 28/05/2017 00:01:20 :::HCHP 23 which are not vested in a local authority, belong to the government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption .
available to the government, is not available to any person or individual. The second difference is in regard to the period for which title and/or possession have to be established by a person suing for declaration of title. Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit for title against government. This follows from Article 112 of Limitation Act, 1963, which prescribes a longer period of thirty years as limitation in regard to suits by government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire state and it is not always possible for the government to protect or safeguard its properties from encroachments. Many a time, its own officers who are expected to protect its properties and maintain proper records, either due to negligence or collusion, create entries in records to help private parties, to lay claim of ownership or possession against the government. Any loss of government property is ultimately the loss to the community. Courts owe a duty to be vigilant to ensure that public property is not converted into private property by unscrupulous elements.
20. Many civil courts deal with suits for declaration of title and injunction against government, in a casual manner, ignoring or overlooking the special features relating to government properties. Instances of such suits against the government being routinely decreed, either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray revenue entries are common. Whether the government contests the suit or not, before a suit for declaration of title against a government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years. In such suits, courts cannot, ignoring the presumptions available in favour of the government, grant declaratory or injunctive decrees against the ::: Downloaded on - 28/05/2017 00:01:20 :::HCHP 24 government by relying upon one of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted."
.
37. The Hon'ble Supreme Court in its decision rendered in State of Haryana vs. Mukesh Kumar and others, (2011) 10 SCC 404) pointed out the need to have a fresh look at the law of adverse possession. The law on adverse possession was described as irrational, illogical and wholly disproportionate and extremely harsh for the true owner and a windfall for dishonest person who had illegally taken possession of the property.After referring to the earlier judgments in Hemaji Waghaji vs. Bhikhabhai Khengarbhai (2009) 16 SCC 517 and P.T. Munichikkanna Reddy vs. Revamma (2007) 6 SCC 559, the Hon'ble Supreme Court reiterated the observations therein that the law ought not to benefit a person who in clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner. The Hon'ble Supreme Court expressed its difficulty to comprehend why the law should place premium on dishonesty by legitimizing possession of a rank trespasser and compelling the owner to lose its possession only ::: Downloaded on - 28/05/2017 00:01:20 :::HCHP 25 because of his inaction in taking back the possession within limitation. It was observed as follows:
.
"In our considered view, there is an urgent need of fresh look regarding the law on adverse possession. We recommend the Union of India to seriously consider and make suitable changes in the law of adverse possession. A copy of this judgment be sent to the Secretary, Ministry of Law and Justice, Department of Legal Affairs, Government of India for taking appropriate steps in accordance with law".
38. It is evidently clear from the aforesaid discussion that the petitioner has successfully managed to keep out the true owner from the possession of the land by encroaching upon the same and has enjoyed the usufruct thereof by reaping the benefit of such user and thereby turned the litigation into a fruitful industry.
39. This Court in Manoj Singh's case (supra) while dealing with an identical situation observed as under:
"30. The petitioner admittedly is squatting over a prime property at Shimla that too without paying a penny to its owner and has thereby turned the litigation into a fruitful industry. The Hon'ble Supreme Court in South Eastern Coalfields Limited vs. State of M.P. and others (2003) 8 SCC 648, held as under:
"28 ......Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the courts, persuading the court to pass interlocutory orders ::: Downloaded on - 28/05/2017 00:01:20 :::HCHP 26 favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to .
interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced. We are, therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the court withholding the release of money had remained in operation."
31. It is therefore the duty of this court to neutralize any unjust enrichment and undeserved gain made by the litigants only on account of keeping the litigation alive. In Indian Council for Enviro-
Legal-Action vs. Union of India and others (2011) 8 SCC 161, it is noticed that conduct of the parties is to be taken into consideration and it was held as follows:-
"197. The other aspect which has been dealt with in great details is to neutralize any unjust enrichment and undeserved gain made by the litigants. While adjudicating, the courts must keep the following principles in view:
1. It is the bounden duty and obligation of the court to neutralize any unjust enrichment and undeserved gain made by any party by invoking the jurisdiction of the court.
2. When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying.
An order of stay cannot be presumed to be conferment of additional right upon the litigating party.
::: Downloaded on - 28/05/2017 00:01:20 :::HCHP 273. Unscrupulous litigants be prevented from taking undue advantage by invoking jurisdiction of the Court.
.
4. A person in wrongful possession should not only be removed from that place as early as possible but be compelled to pay for wrongful use of that premises fine, penalty and costs. Any leniency would seriously affect the credibility of the judicial system.
5. No litigant can derive benefit from the mere pendency of a case in a court of law.
6. A party cannot be allowed to take any benefit of his own wrongs.
7. Litigation should not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the court.
8. The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts."
32. In view of the aforesaid discussion, we find no merit in this petition and the same is dismissed, so also the pending application (s), if any.
33. The petitioner has illegally deprived the respondents of the possession of the property of which he had no right, or title. He illegally retained the same for decades together. Therefore, it is the duty of the court to see that such wrong doers are discouraged at every stage and even if he has succeeded in prolonging the litigation, then he must suffer the costs of all these years and also bear the expenses of such unwanted and otherwise avoidable litigation. Therefore, the petitioner is burdened with costs, which is assessed at Rs.1,00,000/-."
40. It is not only high time, but it is necessary to arrest and curb immediately such unlawful activity of ::: Downloaded on - 28/05/2017 00:01:20 :::HCHP 28 encroachment over the government lands as the public order is adversely affected by such unlawful activity. It is probably .
on account of the higher returns from agricultural and horticultural or other pursuits from the encroached lands that unscrupulous persons have occupied without any semblance of right, large extents of land belonging to the Government. Therefore, unless all such cases of illegal encroachments are dealt with sternly and swiftly, this evil cannot subside and social injustice will continue to be perpetrated with impunity.
41. It is evidently clear from the aforesaid discussion that this petition not only sans merit, but the intent behind filing this petition is also not bonafide as the only endeavour of the petitioner appears to prolong the litigation so as to enable him to reap the benefits from the government land illegally encroached by him and thereby convert this litigation into a fruitful industry.
42. Accordingly, this petition is dismissed. The pending application(s), if any, also stands disposed of.
43. However, before parting, it needs to be clarified that the eviction to be carried out by the respondents shall be at the cost of the petitioner and this decision shall also not come in the way of the respondents in claiming any ::: Downloaded on - 28/05/2017 00:01:20 :::HCHP 29 other relief against the petitioner including mesne profits etc. before the competent authority or Court of law.
.
(Tarlok Singh Chauhan),
Judge
(Chander Bhusan Barowalia)
May 25, 2017 Judge
(GR)
r to
::: Downloaded on - 28/05/2017 00:01:20 :::HCHP