Himachal Pradesh High Court
Krishan Chand vs Amar Nath & Others on 1 June, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 121 of 2007.
Reserved on 13.5.2016.
.
Decided on: 01.06.2016.
Krishan Chand ....Appellant/Plaintiff.
Versus
Amar Nath & others. ... Respondents/Defendants.
of
....................................................................................
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
rt
Whether approved for reporting?1 Yes.
For the appellant . : Mr. G.R. Palsra, Advocate.
For the respondents. : Ex parte.
Ajay Mohan Goel, J.
This appeal has been filed against judgment and decree passed by the learned District Judge, Mandi dated 5.3.2007 in Civil Appeal No. 72 of 2006, vide which judgment the learned First Appellate Court accepted the appeal filed by the present respondents/defendants and set aside the judgment and decree passed by the Court of learned Civil Judge (Junior Division), Jogindernagar, Distt. Mandi dated 1.6.2006 in Civil Suit No. 179 of 2004.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:29:54 :::HCHP 22. Brief facts necessary for adjudication of the present case are that appellant/plaintiff had filed a suit for declaration and .
injunction against respondents/defendants with regard to the suit land, on the pleadings that his father was coming in exclusive possession of the suit land since April, 1970 and his father used to consider this land to be his own land being situated adjoining to other land owned by of him and respondents/defendants never objected to his such possession. It was further averred that the suit land was under
rt cultivable possession of the father of the plaintiff. According to the plaintiff, in October, 1990 defendants created dispute with his father on the plea that the suit land and remaining land comprised in khasra No. 563 had been granted by the Government by way of 'Nautaur' to the predecessor-in-interest of defendants and called upon the father of the plaintiff to part with the possession of the suit land in their favour.
It was further pleaded in the plaint that respondents/defendants tried to forcibly plough the suit land but father of the plaintiff foiled their attempts. After the death of his father, plaintiff continued in possession and cultivates the same. He further stated in the plaint that even if possession is reckoned from 15th October, 1990, the possession over the suit land of his father was open, peaceful, exclusive and hostile to the knowledge of the defendants and said possession had ::: Downloaded on - 15/04/2017 20:29:54 :::HCHP 3 ripened into absolute title on 15th October, 2002. The possession of the father of plaintiff matured into adverse possession and after the .
death of his father, plaintiff had stepped into the footstep of his father and was in possession of the suit land. It was further his case that by taking undue advantage of the wrong and incorrect revenue entries defendants, since 20.6.2004, were threatening to forcibly dispossess of the plaintiff from the suit land. On these bases, the plaintiff filed the suit, wherein he prayed that he be declared as owner of the suit land rt by way of adverse possession and existing revenue entries be corrected in his favour and defendants be restrained from causing any interference in the peaceful enjoinment possession of the suit land.
3. In written statement, the defendants therein denied the case of the plaintiff. According to the defendants, the plaintiff was of quarrelsome nature and he forcibly grabed the suit land and on 20.7.2004 he and his mother had attacked defendant No.5 which had also resulted into filing of FIR. It was denied in written statement that the suit land was under the possession of the plaintiff.
4. On the basis of the pleadings of the parties, the learned trial court framed the following issues:-
"1. Whether plaintiff is in possession of the suit land and has become its owner by way of adverse possession? OPP.
2. If issue No.2 is proved in affirmative, whether plaintiff is entitled for permanent injunction as prayed for? OPP.::: Downloaded on - 15/04/2017 20:29:54 :::HCHP 4
3. Whether plaintiff has cause of action to file present suit? OPP.
4. Whether suit is not maintainable in the present form as alleged? OPD.
.
5. Whether this court has no jurisdiction to try and decide the present suit? OPD.
6. Whether suit is barred by limitation? OPD.
7. Relief.
5. On the basis of the evidence led by respective parties, the of learned trial court returned the following findings against the said issues:-
" Issue No.1 rt Yes.
Issue No.2 Yes.
Issue No.3 Yes.
Issue No.4 No.
Issue No.5 No.
Issue No.6 No.
Relief : The suit of the plaintiff is
decreed per operative part
of the judgment."
6. Accordingly, the suit of the plaintiff was decreed in the following term:-
"The suit of the plaintiff is decreed. The plaintiff is declared to have become owner in possession of the suit land comprised in Khewat No. 33min, Khatauni No. 81min, Khasra No. 563/1 measuring 0-3-9 bighas as specifically shown in tatima prepared by Patwari Ex.PW2/A. The defendants are permanently restrained from causing interference over this Khasra No. 563/1 as shown in tatima. This tatima Ex.PW2/A shall form part of the decree sheet. No order as to costs."
7. Thus, the plaintiff was declared to have become owner in possession of the suit land by way of adverse possession and ::: Downloaded on - 15/04/2017 20:29:54 :::HCHP 5 defendants were permanently restrained from causing interference over the suit land.
.
8. This judgment was challenged by the respondents before the Learned First Appellate Court and the Learned First Appellate Court, vide its judgment dated 5.3.2007 in Civil Appeal No. 72 of 2006 set aside the judgment and decree passed by Learned Trial Court of and dismissed the suit of the plaintiff with costs. The Learned First Appellate Court came to the conclusion that the requirement of rt adverse possession enjoins upon the plaintiff to have necessary animus at the time of entering into the possession upon the suit land.
However, this animus in the present case could have started from April, 1970 when father of the plaintiff entered upon the suit land as was evident from the averments made in para 2 of the plaint. Thus, the same would not start from 15.10.1990 merely because the defendant made attempt to take possession which was permissive in nature prior to 15.10.1990. The Learned First Appellate Court further held that in law, permissive possession is legally required to be relinquished. It is only thereafter that the same can be termed adverse possession in the eyes of law. It further held that any attempt made by defendants to take forcible possession of the suit land would rather militate against the plea of adverse possession, as this possession then ::: Downloaded on - 15/04/2017 20:29:54 :::HCHP 6 cannot be termed to be peaceful in nature. It further held that this subtle distinction had not been appreciated by the learned trial Judge .
while considering the plea of adverse possession qua the suit land. It further held that the adverse possession even otherwise is mixed question of law and fact and simply because the plaintiff was not cross-examined on material point that would not necessarily mean that of defendants had admitted the entire case of the plaintiff. It further held that it was not a case where plaintiff had done overt act over the suit rt land by raising some kind of construction etc. which was so ostensible in nature so as to give rise to the presumption that possession of the plaintiff throughout has been hostile. Thus, the Learned First Appellate Court concluded that the findings returned by the Learned Trial Court regarding plea of adverse possession cannot be legally sustained. It further held that, even if it is assumed that the plaintiff is in possession of the suit land, in that eventuality also, no relief of injunction can be granted to the plaintiff against the true owner. It further held that though even a trespasser is entitled to protect his possession and cannot be evicted from any parcel of land except in due course of law, however, the object of law is to discourage the people from taking law in their own hand irrespective of their title. It further held by relying upon the judgment of Hon'ble Supreme Court ::: Downloaded on - 15/04/2017 20:29:54 :::HCHP 7 in Premji Rattansav Shah Vs. Union of India, 1994 (5) Supreme Court Cases 547 that injunction would not be issued against the true owner.
.
9. Feeling aggrieved by the said judgment, appellant/plaintiff filed this appeal.
10. The present appeal was admitted on the following substantial question of law on 2.7.2008:-
of "Whether the appellate court below has misread, misinterpreted and misconstrued the oral as well as documentary evidence including pleading of the parties especially statement of PW1 and Ex.PW2/A, which has materially prejudiced the case of the appellant?
11. rt I have heard Mr. G.R. Palsra, learned counsel for the appellant and also gone through the records of the case minutely.
12. Mr. G.R. Palsra, learned counsel for the appellant argued that the judgment passed by Learned Appellate Court was not sustainable in law, as the same was a result of total misreading of the testimonies of PW1 and PW2. He further argued that, in fact, the statement of PW1 had remained unrebutted and this important aspect of the matter has not been appreciated by the learned First Appellate Court. According to him, Tatima, Ext.PW2/A, has also been mis-
appreciated by the Learned First Appellate Court and the said Court has not appreciated that the defendants had failed to bring on record any evidence to substantiate that they were actually in possession of ::: Downloaded on - 15/04/2017 20:29:54 :::HCHP 8 the suit land and the same was not in possession of the plaintiff.
Therefore, he argued that the judgment and decree passed by the .
Learned First Appellate Court were not sustainable on the basis of the material on record and the same were liable to be set aside and the judgment passed by the Learned Trial Court was liable to be upheld.
13. I have given a careful consideration to the averments of which have been made by Mr. Palsra.
14. In my considered view, it cannot be said that the Learned rt First Appellate Court has either misread or mis-appreciated the statements of PW1 and PW2, nor it can be said that the Learned First Appellate Court has misconstrued Ext.PW2/A i.e. Tatima. In fact, Mr. Palsra has not been able to convince this Court as to how the findings which have been returned by the learned First Appellate Court to the effect that the plaintiff has not been able to prove the main ingredients of adverse possession are incorrect. It is the case of the plaintiff, as pleaded in para 3 of the plaint that on 15.10.1990 defendants tried to forcibly plough the suit land and they created a dispute with their father but father of the plaintiff foiled the said attack of the defendants and did not allow them to possess the suit land. Be that as it may, the averments made in the plaint demonstrate that one of the main ingredients of 'adverse possession' that the said possession is open ::: Downloaded on - 15/04/2017 20:29:54 :::HCHP 9 and peaceful is belied from these averments which has been made by the plaintiff itself in the plaint. Incidentally, in para 4 of the plaint, .
plaintiff has mentioned that reckoned from 15.10.1990 father of the plaintiff and plaintiff himself continued to be in open, peaceful and exclusive possession of the suit land and on these bases he sought declaration to the effect that he has become owner of the suit land by of way of adverse possession. It is not his case that the plaintiff came in possession of the suit land on 15.10.1990 and thereafter he remained rt in peaceful possession of the same till he filed the suit. It is his case that his father was coming in possession of the suit land since April, 1970. Thus, it is apparent and evident that on the one hand the case put-forth by the plaintiff that his father was coming in possession of the suit land since April 1970, however, he has chosen 15.10.1990 as the date from which onwards according to him the possession of his father and after his father's death his possession over the suit land was adverse to true owners.
15. In these circumstances, incidentally, the onus was upon the plaintiff to have demonstrated that their alleged possession had become adverse over the suit land after 15.10.1990, though it was not so before 15.10.1990 and the same was permissive before that date. It cannot be said that the statement which has been made by plaintiff in ::: Downloaded on - 15/04/2017 20:29:54 :::HCHP 10 the Court as PW1 is demonstratively conclusive that his right of ownership by way of adverse possession had fructified over the suit .
land as was portrayed by him in the plaint. In his cross-examination he has stated that he became owner of the suit land by virtue of his possession in the year 2002 and in revenue records the land is recorded in his name. He has feigned ignorance that on 10.6.2004 of defendants had got the land demarcated from the revenue department.
He has also stated that he is not aware of the date on which the Tatima was prepared.
rt He has also feigned ignorance to the fact that a criminal case had been registered against his mother. A perusal of the statement of PW2 Patwari Surinder Pal does not further the case of the plaintiff. In his statement he has stated that Tatima, Ext.PW2/A, has been prepared by him but in his cross examination he has stated that said Tatima has not been verified by the Kanungo. Statements of PW3 and PW4 also do not furthers the case of the plaintiff because in their cross examination they have clearly admitted that plaintiff is closely related to them. Therefore, it cannot be said that the plaintiff with the help of any independent witnesses was able to substantiate that, in fact, he was in possession of the suit land. A perusal of the judgment passed by the Learned First Appellate Court demonstrates that all these aspects have been gone into in detail by the said Court. The ::: Downloaded on - 15/04/2017 20:29:54 :::HCHP 11 Learned First Appellate Court has rightly held that so-called Tatima prepared by the patwari has not been prepared in accordance with law .
as per requirements of H.P. Land Record Manual. Further no infirmity can be found that the findings arrived at by the Learned First Appellate Court to the effect that plaintiff has miserably failed to prove and demonstrate on the basis of material on record that he had of become owner by way of adverse possession of the suit land.
16. The theory of adverse possession is that an adverse rt possession allows a trespasser, a person guilty of tort or even crime in the eyes of law to gain legally title of land, which he has illegally possessed for 12 years.
17. Incidentally, the appellant before this Court was the plaintiff who had filed a suit for seeking declaration to the effect that he be declared owner in possession of the suit property as he had perfected the said title by way of adverse possession. The Hon'ble Supreme Court in Gurdwara Sahib Vs. Gram Panchayat Village Sirthala and another, (2014) 1 Supreme Court Cases 669 has held as under:-
"There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence."::: Downloaded on - 15/04/2017 20:29:54 :::HCHP 12
18. The Hon'ble Supreme Court in Chatti Konati Rao and others Vs. Palle Venkata Subba Rao, (2010) 14 Supreme Court Cases .
316, has held:-
"12. ............ What is adverse possession, on whom the burden of proof lie, the approach of the court towards such plea etc. have been the subject matter of decision in a large number of cases. In the case of T. Anjanappa v. Somalingappa, it has been held that mere possession however long does not necessarily mean that it is adverse to the true owner and the classical requirement of of acquisition of title by adverse possession is that such possessions are in denial of the true owner's title. Relevant passage of the aforesaid judgment reads as follows: (SCC p. 577, para 20) rt "20. It is well-recognized proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order 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. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."
13. What facts are required to prove adverse possession have succinctly been enunciated by this Court in the case of Karnataka Board of Wakf vs. Government of India and Ors. It has also been observed that a person pleading adverse possession has no equities in his favour and since such a person is trying to defeat the rights of the true owner, it is for him to clearly plead and establish necessary facts to establish his adverse possession. SCC para 11 of the judgment which is relevant for the purpose reads as follows : (SCC p. 785) ::: Downloaded on - 15/04/2017 20:29:54 :::HCHP 13 "11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the .
property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to of the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina, Parsinni v. Sukhi and D.N. Venkatarayappa v. State of Karnataka. Physical fact of rt exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession,
(b) what was the nature of his possession, (c) whether the factum of possession was known to the other party,
(d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma.)"
14. In view of the several authorities of this Court, few whereof have been referred above, what can safely be said that mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The possession must be open and hostile enough so that it is known by the parties interested in the property. The plaintiff is ::: Downloaded on - 15/04/2017 20:29:54 :::HCHP 14 bound to prove his title as also possession within 12 years and once the plaintiff proves his title, the burden shifts on the defendant to establish that he has perfected his title by adverse possession. Claim by adverse possession has two basic elements i.e. the possession of .
the defendant should be adverse to the plaintiff and the defendant must continue to remain in possession for a period of 12 years thereafter.
15. Animus possidendi as is well known a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until possessor holds property adverse to the title of the true owner for the of said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and possession was open and undisturbed. A rt person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. Plea of adverse possession is not a pure question of law but a blended one of fact and law."
19. Accordingly, applying these principles to the facts of the present case, I am of the considered view that appellant has miserably failed to demonstrate that he was either in possession of the suit land for more than 12 years as alleged and that his alleged possession was open, peaceful and hostile as against the true owner. The Learned First Appellant Court has rightly allowed the appeal filed by the respondents and set aside the judgment passed by the Learned Trial Court. The findings arrived at by the Learned First Appellate Court ::: Downloaded on - 15/04/2017 20:29:54 :::HCHP 15 are correct and based on the appreciation of the facts of the case and evidence on record and it cannot be said that the said conclusions .
arrived at are perverse. The Learned First Appellate Court has neither misled or misinterpreted the oral as well as documentary evidence on record especially the statement of PW1 and Ext.PW2/A. The substantial question of law is answered accordingly.
of In view of the above discussion, I do not see any reason to interfere in the well reasoned judgment and decree passed by rt Learned Appellate Court and the appeal is accordingly dismissed with cost.
(Ajay Mohan Goel) Judge 1st June, 2016.
(Guleria) ::: Downloaded on - 15/04/2017 20:29:54 :::HCHP