Himachal Pradesh High Court
Pritam Chand And Another vs Hardev Singh (Dead) And Others on 2 April, 2015
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No.371 of 2002
Reserved on : 26.3.2015
.
Date of Decision : April 2, 2015
Pritam Chand and another ....Appellants.
versus
Hardev Singh (Dead) and others ...Respondents.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge. For the Appellants : Mr. Sanjeev Kuthiala, Advocate. For the Respondents : Mr. Anoop Rattan, Advocate. Sanjay Karol, Judge Defendants, appellants herein, have filed the present appeal under the provisions of Section 100 of the Code of Civil Procedure, assailing the judgment and decree dated 6.6.2002, passed by the learned District Judge, Una, Himachal Pradesh, in Civil Appeal No.196 of 2000, titled as Pritam Chand & another v. Hardev Singh and others, whereby judgment and decree dated 30.11.2000, passed by the Sub Judge 1st Class (I), Amb, District Una, Himachal Pradesh, in Case No.63 of 1997, titled as Hardev Singh & others v. Pritam Chand & another, stands affirmed.
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2. Plaintiffs, respondents herein, filed a suit for declaration, inter alia, praying for injunction and possession. According to the plaintiffs, in connivance .
with the revenue officials, defendants erroneously and illegally got entry of "Kabij" made in their favour.
3. In the written statement, defendants claim themselves to have perfected their title by way of adverse possession.
4. Based on the pleadings of the parties, trial Court framed the following issues:
r 1. Whether plaintiffs are owners in possession of suit land? OPP
2. If issue No.1 is proved in affirmative, whether revenue record favour defendants is wrong and illegal? OPP
3. Whether plaintiffs have no locus-standi to file the suit? OPD
4. Whether plaintiffs are estopped by their acts and conduct to file this suit? OPD
5. Whether suit is not within time? OPD
6. Whether defendants have become owners by adverse possession? If so, its effect? OPD
7. Relief.
5. Appreciating the material on record and the evidence so led by the parties, trial Court, while ::: Downloaded on - 15/04/2017 17:56:22 :::HCHP ...3...
answering the material issues in favour of the plaintiffs, decreed the suit as under:
"In view of my findings on the foregoing .
issues, suit of the plaintiffs succeeds and is partly decreed against the defendants for possession of the land measuring 0-10-08 Hects. Khewat No.89min, khatoni No.157, khasra No.485 per Misal Hakiat Istemaal, 1995-96 situate in UP Mahal Jitpur Beheri, Mahal Sanghnai, The. Amb, Distt. Una, being owners but are not found in possession. As such, consequential relief of injunction is declined. In the peculiar circumstances of the case, parties to bear their own costs. Decree- sheet be drawn and they file consigned to records."
6. Lower Appellate Court, in an appeal so filed by the defendants, has upheld the findings of fact, on all issues.
7. Present appeal stands admitted on the following substantial questions of law:
"1. Whether the learned court below have misread and misconstrued oral and documentary evidence especially, the statements of PW1 plaintiff, DW1 defendant, DW2 and Exh.D1 to Ex.D6 jamabandis for years 1950-51 to 1995- 96 and the findings arrived at are contrary to the same?
2. Whether the ingredients of adverse possession had been completed and proved and the animus of the defendant with respect to such acts regarding his possession of adequaity, continuity and publicity and the extent of possession showed that the same had become adverse to fructify into ownership?::: Downloaded on - 15/04/2017 17:56:22 :::HCHP
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3. Whether eh possession of the predecessor-in-interest as also his title can be tagged by the principle of tagging with the person claiming adverse possession, if the possession is .
continuous and without interruption and the same can be read for the purpose of establishment of ownership by claim of adverse possession?"
8. In effect, this Court is obliged to examine as to whether findings, so rendered by the Courts below, while answering Issue No.6, can be said to be perverse, illegal or erroneous, warranting interference by this Court. Factual aspect of possession of the defendants, over the suit land, stands succinctly dealt with by the lower Appellate Court and in that regard relevant portion of the findings, with approval, are reproduced as under:
"20. In rebuttal, the defendants/respondents have placed on file copy of Jamabandi for the eyar 1950-51 Ext. D1 showing Billu, father of the defendants/respondents in possession of the suit land as "Gair Maurusi" but the entry in the column of rent is "Bila Lagaan Bawaja Sahuliat Kasht". Ext. D2 is the copy of Jamabandi for 1964-65 which shows the possession of Billu over the suit land, but the entry in the column of rent is "Bila Lagaan Bawaja Shamuliat Kasht". Ext.D3 is the copy of Jamabandi for the year 1976-77 showing the possession of Billu over the suit land, but entry in the column of rent is "Bila Lagaan Bawaja Shamkuliat". Ex.D4 is the copy of Jamabandi for the year 1970-71 shwing the same position as in Ext.D3. Ext.D5 is the copy of Misal Hakiat Bandobast Jadid Sani for the year 1989-90 showing the possession of Billu over the suit land as Kabiz. The same entry is ::: Downloaded on - 15/04/2017 17:56:22 :::HCHP ...5...
found in the copy of Misal Hakiat for the year 1995-96 Ext.D6.
21. It has been submitted that the father of the defendants/respondents has been in un- .
interrupted possession of the suit land prior to the year 1950-51 and that he will be deemed to have become owner of the suit land by way of adverse possession. However, for this purpose, the entries in the above record will have to be scrutinized and interpreted. The entry in the copy of Jamabandi for the year 1950-51 shows Billu in possession of the suit land as "Gair Mourusi" "Bila Lagaan Bawaja Sahuliat Kasht" which unambiguously means that the suit land had been given by the owners to Billu for cultivation. The entries in the subsequent Jamabandis upto 1976-77 show possession of Billu on account of "Bila Lagaan Bawaja Shamuliat Kasht" which means that he had been cultivating the suit land jointly with the owners, which again means that such cultivation is to help the owners only. It is for the first time that at the time of settlement when Misal Hakiat Bandibast Jadid Sani for the year 1989-90 Ext.D5 was prepared, the possession of Billu was shown as Kabiz over the suit land and the column of rent was kept blank. The same entry has been following in the year 1995-96 as per Ext.D6. Thus, initially the possession of Billu, that is, of the defendants/respondents to show as to from which date their possession became adverse to the title of the plaintiffs/ respondents.............................."
9. Record reveals that there is no misreading or misconstruction of any evidence, oral or documentary. There is neither any illegality nor perversity with the same.
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10. A person claiming adverse possession has no equities in his favour since he is trying to defeat the rights of a true owner. All ingredients including animus .
dissidendi is not only required to be pleaded but proved on record. [See: State of Haryana vs. Mukesh Kumar and others, (2011) 10 SCC 404].
11. The apex Court while considering the cases where government land is involved observed practical difficulties in keeping watch over vast tracks of open land and held that the Court is duty bound to act with greater seriousness, care and circumspection where plea of adverse possession is taken by unauthorized occupants/ encroachers/land grabbers. [Mandal Revenue Officer vs. Goundla Venkaiah & another, (2010) 2 SCC 461].
12. Adverse possession does not begin to operate until title thereof, over the disputed property is renounced by the true owner. [See: L. N. Aswathama & another vs. P. Prakash, (2009) 13 SCC 229].
13. In fact the apex Court, referring to the earlier decisions rendered in P.T. Munichikkanna Reddy and others versus Revamma and others, (2007) 6 SCC 59, and Hemaji Waghaji Jat vs. Bhikhabhai Khengarbhai Harijan & others, (2009) 16 SCC 517, directed the Union ::: Downloaded on - 15/04/2017 17:56:22 :::HCHP ...7...
of India to consider making suitable changes in the law of adverse possession.
14. It is also a settled position of law that once a .
party is able to prove its title, the onus of proof would be on the other party to prove the claims of title. [Munichikkanna Reddy (supra)].
15. In any event, it is a settled position of law that mere possession for howsoever length of time it may be, does not result in converting permissible possession into adverse possession. [Thakur Kishan Singh (Dead) versus Arvind Kumar, (1994) 6 SCC 591].
16. Also, there is nothing on record to show that defendants had declared their animus dessidendi, exhibiting their intention, hostile to the knowledge of the plaintiffs. In any event, essential ingredients so as to constitute a right of adverse possession, in terms of law laid down by the apex Court in P.T. Munichikkanna Reddy (supra); and Goundla Venkaiah (supra), have neither been pleaded nor proved on record.
17. Before this Court, appellants-defendants have sought to take mutually destructive pleas, which is not only impermissible in law, but also not a substantial question of law, so framed at the time of admission of the ::: Downloaded on - 15/04/2017 17:56:22 :::HCHP ...8...
appeal. Hence, decision rendered in Lal Chand and others v. Pala, 1998(2) SLJ 1526, is of no avail.
18. Decision in State of Himachal Pradesh v.
.
Khazana Ram, 1999(1) SLJ 174, relied upon by the learned counsel for the defendants, is inapplicable to the given facts, as the possessor's title was recorded as unauthorized and illegal.
19. Reliance on Ramesh Chand v. State of H.P. and others, Latest HLJ 2007 (HP) 941, is misconceived, in the given facts, as the issue of defendants' tenancy is not a subject matter of substantial questions law to be considered by this Court, more so in view of specific plea of adverse possession so taken by the defendants.
20. As such, it cannot be held that findings returned by the Courts below are illegal, perverse and erroneous, warranting interference by this Court. Substantial question of law are answered accordingly.
For all the aforesaid reasons, the appeal is dismissed and disposed of, so also the pending application(s), if any.
( Sanjay Karol ),
April 2, 2015(sd) Judge.
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