Himachal Pradesh High Court
Ram Rattan And Another vs Shanti Devi And Others on 22 September, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.382 of 2007 Reserved on: 04.09.2023 .
Date of Decision: 22.09.2023 Ram Rattan and another ....Appellants Versus Shanti Devi and others. .....Respondents of Coram Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes For the Appellants rt : Mr.G.D. Verma, Senior Advocate, with Mr.Hitesh Sharma, Advocate.
For the Respondents : Ms.Shikha Chauhan, Advocate, vice Mr.O.P. Chauhan, Advocate, for respondents No.1 to 5, 7 and 8.
Respondents No.6 ex parte.
Rakesh Kainthla, Judge Whether a party can amend the entire pleadings after the other party has amended its pleadings or the right of the party is confined to the answer to the amended pleadings is the question which falls for determination in the present appeal.
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 22/09/2023 20:35:19 :::CIS 2Before dealing with this question, it is necessary to notice the facts, which gave rise to the question for determination.
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2. The appellants (plaintiffs before the learned Trial Court) are aggrieved by the judgment and decree passed by learned District Judge (Forests), Shimla, vide which, the appeal filed by the respondents (defendants before learned Trial Court) of was allowed and the judgment and decree passed by learned Civil Judge, (Senior Division), Court No.I, Shimla was set aside.
rt (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned trial Court for convenience).
3. Briefly stated, the plaintiffs filed a Civil Suit seeking a permanent prohibitory injunction for restraining the original defendant-Niharku from interfering with the land comprised in Khata No.6 min, Khatauni No.8 Min, Khasra No.300/218 measuring 16 bighas 6 biswas, situated at Mauja Patina, Pargana Kaljhun, Tehsil and District Shimla, H.P. as per the Jamabandi for the year 1999-2000 (hereinafter referred to as the suit land).
A decree for mandatory injunction requiring the defendants to restore the vacant possession to the plaintiff was also sought, in ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 3 case the defendant is found to have encroached upon the suit land.
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4. It was pleaded that the plaintiffs are the co-owners in possession of the suit land. The defendant has no right, title or interest over the suit land. The suit land is located in Jubberhatti-Airport Road and is highly valued. The defendant is of the owner of the adjacent land comprised in Khata No.23 min, Khatauni No.36 min, Khasra No.299/218 measuring 05 biswa, rt situated at Patina, Pargana Kaljhun, Tehsil and District, Shimla.
The defendant raised the construction of a house over his land, however, he threatened to encroach upon the suit land. He started digging the suit land. He was requested not to do so but in vain. Hence, the suit was filed to seek the relief(s) mentioned above.
5. The defendant filed a written statement taking preliminary objections regarding lack of cause of action, and the plaintiffs being estopped from filing the present suit by their act, conduct and acquiescence. The contents of the plaint were denied on merits. It was asserted that Khasra No.300/218 is a grazing area. The defendant has easementary rights to graze the ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 4 cattle since he is a peasant in the area. The defendant is the owner in possession of Khasra No.299/218, which is located .
adjacent to the suit land. The defendant was not raising any fresh construction but was making substantial repairs by putting bricks in the old house. The suit was filed without any cause of action. Hence, it was prayed that the suit be dismissed.
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6. A replication denying the contents of the written statement and affirming those of the plaint was filed.
7. rt The learned trial Court framed the following issues on 29.05.2002:
1. Whether the plaintiff is entitled for relief of permanent prohibitory injunction? OPP
2. Whether the plaintiff is entitled for relief of mandatory injunction? OPP
3. Whether the plaintiff has no cause of action? OPD
4. Whether the plaintiff has estopped for filing the present suit due to his own act, conduct and deed. OPD
5. Relief
8. The parties were called to produce the evidence.
However, the application for amendment was filed by the plaintiff, which was allowed by the learned Trial Court. In the meantime, the original defendant expired and his legal representatives were also brought on record.
::: Downloaded on - 22/09/2023 20:35:19 :::CIS 59. The plaintiff incorporated Para 6(a) in the plaint asserting that, the defendant carried out the construction work .
over a portion of Khasra No.300/218 despite the status quo order passed by this Court. The plaintiffs are entitled to a mandatory injunction for the removal of any construction made by the defendant over Khasra No.300/218.
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10. The legal representatives of the defendant filed a written statement taking preliminary objections regarding lack rt of maintainability & cause of action, the land having not been properly identified, the plaintiffs being estopped to file the present suit on account of their act and conduct, the suit having not been properly valued for Court fees and jurisdiction, the suit being barred by limitation, the suit being bad for non-joinder of other co-owners, the plaintiffs having concealed the material fact from the Court and the suit being barred by Section 41(h) of the Specific Relief Act. The contents of the plaint were denied on merits. It was asserted that the defendants are owners in possession of 1-9 bigha in Khasra No.300/218 since 1981. The entries of ownership and possession recorded in favour of the plaintiffs and other co-sharers are factually incorrect. The defendants planted trees of lime and galgal. They constructed ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 6 toilets and residential houses, which have been in existence since 1969. Shonkia was in occupation of 1-9 bighas of land .
comprised in Khasra No.218 out of total land measuring 16-9 bighas. He was also recorded as a non-occupancy tenant to the extent of 5 biswa and ownership rights were conferred upon him vide mutations dated 23.04.1977 and 23.04.1981. The defendants of through their predecessor-in-interest developed the land measuring 1-9 bigha by raising the construction of the rt residential house and toilet and by planting lime and galgal trees on a portion of Khasra No.218. This portion was converted into the new Khasra No.300/218. The possession of the defendants was continuous, open, hostile and uninterrupted and they have become the owners by way of adverse possession. The possession of the defendants was also confirmed by learned A.C., 2nd Grade, vide his order dated 22.03.2003 in a demarcation case no.78/2003. The plaintiff did not disclose the portion, where the construction was carried out. No tatima was filed; therefore, it was prayed that the suit be dismissed.
::: Downloaded on - 22/09/2023 20:35:19 :::CIS 711. A replication denying the contents of the written statement and affirming those of the plaint was filed. Learned .
Trial Court framed the following additional issue on 20.02.2004:
"4-A: Whether in the alternative, the plaintiffs are entitled to a decree of Mandatory Injunction for the restoration of vacant possession of the suit land of part thereof allegedly encroached upon by the defendant as prayed for? OPP"
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12. The parties were called upon to produce the evidence and the plaintiff examined Jagdish plaintiff no.2 (PW-1), Rajinder (PW-2), Gopal Dutt (PW-3), Chet Ram (PW-4), and rt H.C. Bachittar Singh (PW-5). Legal representatives of the original defendant examined LR4-Shyam Lal (DW-1), H.C. Bisht (DW-2) and Ram Chand (DW-3).
13. Learned Trial Court held that the copy of Jamabandi shows the plaintiffs to be the co-owners of the suit land. The defendants had taken a plea of adverse possession and they were bound to prove that they were in continuous, peaceful and hostile possession. The hostile animus was not proved by the defendants. Hence, the plaintiffs were entitled to the relief of possession based on their title. The suit for injunction had become infructuous in view of the fact that the defendants had taken possession of the suit land. Hence, the learned Trial Court ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 8 answered issues no.2& 4-A in the affirmative, issues no. 1, 3 and 4 in negative and partly decreed the suit of the plaintiffs.
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14. Being aggrieved from the judgment and decree passed by the learned Trial Court, the defendants filed an appeal, which was decided by the learned District Judge (Forests), Shimla. Learned First Appellate Court held that the of failure to frame an issue related to the adverse possession is not fatal. The identity of the suit land was proved by the tatima rt annexed to the report. The defendants were in possession and had become the owners by way of adverse possession. Hence, the appeal was allowed and the judgment and decree passed by the learned Trial Court were set aside.
15. Being aggrieved from the judgment and decree passed by the learned First Appellate Court, the appellants-
plaintiffs filed the present appeal asserting that the learned First Appellate Court failed to determine the real points of controversy between the parties. The pleadings of the parties were overlooked by the learned First Appellate Court. No reasons were assigned for disturbing the findings recorded by the learned Trial Court. The material admissions made by the ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 9 original defendant were ignored. The defendants altered the written statement without seeking the approval of the learned .
Trial Court. The legal representatives could not have filed an independent written statement taking entirely different pleas from those taken by the deceased defendant. The defendants never pleaded that the possession was to the knowledge of the of true owner. The defendants claimed that construction of the house took place in the year 1969 or the year 1981, however, the rt exact date was not specified. Learned First Appellate Court could not have relied upon the photographs to base its finding;
therefore, it was prayed that the present appeal be allowed and the judgment and decree passed by learned First Appellate Court be set aside.
16. The appeal was admitted on the following substantial questions of law on 24.08.2007:
1. Whether without seeking prior permission from the Hon'ble Court, defendants could not have changed the written statement and therefore, they are bound by written statement as filed by Late Sh.Niharku.
2. Whether the defendants have failed to rebut presumption of correctness as attached to the revenue entries.
3. Whether admissions as made in written statement by late Sh.Niharku are binding upon respondents and therefore, there being no plea of adverse possession by ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 10 the predecessor of respondents, the suit was rightly decreed by learned trial Court.
4. Whether the written statement and evidence as produced by Respondents is self-contradictory, illegal .
and worth of no credibility.
5. Whether findings as recorded by learned District Judge are vitiated on account of mis-readings, construction and mis-interpretation of pleadings, as well as, evidence on record.
6. Whether plea of adverse possession has not been taken up in accordance with law, nor same has been proved, therefore, respondents have no right to retain land in of suit.
7. Whether findings as recorded by learned District Judge are containing no legal and valid grounds and he acted illegally by upsetting well reasoned judgment passed rt by the learned Trial Court.
8. Whether the material admissions by respondents about claim of appellants have been unlawfully ignored and therefore, suit filed by plaintiff was rightly decreed by learned Trial Court.
17. I have heard Mr. G.D.Verma, Senior Advocate, assisted by Mr. Hitesh Sharma, learned counsel for the appellants-defendants and Ms. Shikha Chauhan, learned counsel for respondents no.1 to 5, 7 and 8.
18. Mr.G.D. Verma, learned Senior Counsel submitted that the learned First Appellate Court erred in accepting the appeal. Both the learned Courts below did not appreciate the fact that the defendants had changed the entire pleadings while filing the reply to the amended plaint. The plaintiffs had carried out the amendment by incorporating Para 6(a) in the plaint and ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 11 the defendants could have only replied to the amended paragraph. It was impermissible for them to file an entirely new .
written statement taking a contradictory stand. Niharku, the original defendant, had not claimed possession over the suit land and his legal representatives were bound by the plea taken by him. They could not have taken any independent plea. The of learned Trial Court had rightly held that the possession of the defendants was not adverse. Therefore, he prayed that the rt present appeal be allowed and the judgments and decrees passed by learned Courts below be set aside.
19. Ms. Shikha Chauhan, learned counsel for respondents no.1 to 5, 7 and 8 supported the judgment and decree passed by the learned First Appellate Court and submitted that no interference is required with the same.
20. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.
Substantial question of law no.1:-
21. It is apparent from the perusal of the record that the original defendant had never taken any plea that he was in ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 12 possession of the suit land or he had become the owner by way of adverse possession. The original defendant specifically denied .
that he was raising construction over Khasra No.300/218. He asserted that he is in possession of his area, since time immemorial. He only claimed an easementary right to graze the cattle because he was the peasant of the area.
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22. The defendants filed an entirely new written statement abandoning the pleas taken by the original defendant.
They pleaded rt adverse possession by claiming that the construction of the house was made in the years 1969 and 1981.
It was laid down by this Court in Tek Chand Chitkara versus Union of India, ILR 1974 (HP) 616, that when the plaintiff is allowed to amend his plaint, the defendant is entitled to amend his written statement. However, the scope of amendment available to the defendant is confined to the amendment effected in the plaint. It was observed:
"4. On the first contention, it seems to me that the plaintiff is right. There can be no doubt that if a plaintiff is allowed to amend his plaint a defendant is entitled to amend his written statement. But the scope of amendment available to the defendant must relate to the amendment effected in the plaint. The occasion for permitting the defendant to amend the written statement is provided by the amendment of the plaint, ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 13 and the whole purpose of allowing the defendant to amend the written statement is to afford him an opportunity to set out his defence in reply to the amended pleading introduced in the plaint. It must be .
remembered that after the plaint is filed and the defendant files his written statement in defence he exhausts his right to do so, and he cannot subsequently amend the written statement except by leave of the Court. To permit the defendant to do so otherwise could result in defeating Order 8 Rule 9 of the Code. Now, it is one thing to amend the written statement in reply to an of amendment of the plaint; it is quite another thing to amend the written statement by introducing entirely fresh pleadings not warranted by the amendment in the plaint. To amend the written statement in the latter case rt the defendant must satisfy requirements which proceed beyond those arising upon a mere amendment of the plaint. I am in agreement with the view taken in Diltu Ram vs. Amar Chand (A.I.R. 1961 H.P. 46.). It may be mentioned that the Punjab High Court has taken a contrary view in Girdharilal vs. KrishanDatt(A.I.R. I960 Pb,
575). Subsequently, the view taken by that court was explained in New Bank of India Ltd. vs. Smt. Raj Rani(A.I.R, 1966 Pb. 162) and the law was stated thus:
"On behalf of the respondent, it has been urged with a certain amount of force that in the case in hand it must be deemed that the Court below had not reopened the entire trial but had merely directed the plaintiff to add to the relief clause an additional relief and that thedefendants were also accordingly permitted merely to answer to this additional plea and not to put in an absolutely fresh written statement. Whether or not the Court below intended to adopt this procedure is far from obvious and its order is certainly not clear and explicit in this respect. I can see that the amendment in the plaint is of a formal nature, but in the absence of any restriction placed by the Court ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 14 below, I am unable, as at present advised, to hold that as a matter of law, the defendant can be debarred from putting in a fresh written statement to a fresh plaint filed in pursuance of an unqualified .
order."
There may be a case where subsequent to the amendment of the plaint a defendant may make out a case before the court for amending his written statement so as to enable him not only to introduce pleas in reply to the amendment in the plaint but also to introduce fresh of pleas. So far as such fresh pleas are concerned, the court will consider, independently of the amendment effected in the plaint, whether the defendant has made out a case for introducing such pleas in the written statement. The rt circumstance that the plaint has been amended is irrelevant, and the court will proceed to consider the prayer for introducing such pleas in the same way as it would an application for permission to amend the written statement had the plaint remained unaltered."
23. This judgment was approved by the Division Bench in Sawan Singh versus Radhakishan,1979 SCC OnLine HP 20: AIR 1980 HP 8. The Division Bench noticed the question of law posed before it as under:
"6. Thus it is evident that in all three revisions a common question of law arises as to whether in a case where plaint is amended and the court directs for additional written statement under Order 8, Rule 9, the defendant would be at liberty to take up any plea he prefers even in derogation to O. 6, R. 7 and O. 6, R. 17 of the CPC without seeking for any amendment in the pleadings."
24. The Division Bench held that when the plaintiff is permitted to amend the plaint, the defendant can file a written ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 15 statement but the written statement has to be confined to the amendment. It was observed:-
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"17. As we have already pointed out, Order VI deals with pleadings generally and the provisions of that order do apply to plaint as well as to written statement. Under Order VIII, Rule 9, there is a provision for subsequent written statements. Nevertheless, Rule 9, Order VIII has to stand with Rr. 7 and 17 of O.VI. Under Rule 9, Order VIII, additional written statements can be permitted to of be filed. But that does not mean that Rr. 7 and 17 of Order VI have been given a gobye. If such an additional written statement contains any departure in the pleadings within the meaning of O.VI, Rule 7, in our opinion Rule rt 17, O.VI will be effective and a proper amendment of the pleadings will have to be asked for. Without the court applying its mind as to whether there has been really a departure in the pleadings and as to whether the amendments should be permitted for the purpose of determining the real question in controversy, in our opinion, the mere fact that additional written statement has been permitted to be filed under Rule 9 of Order VIII will not give a right to the defendant to raise new or inconsistent pleas or to make allegation contrary to the facts alleged in the previous pleadings.
18. The observations, of the learned Judge in Girdharilal (supra) and New Bank of India Ltd. (supra) depending upon the nature and application of the law of procedure, in our opinion will be of no avail, the reason being that it would by itself be a rule of law as to whether Rr. 7 and 17 of Order VI are not required to be complied with and merely because Rule 9 of Order VIII has been observed, a departure would be permitted in the pleadings without seeking for an amendment under Rule 17 of O.VI. That would not be a question of procedure, although while allowing or disallowing the amendment the court can always take a liberal view and may even ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 16 permit the defendant to raise whatever defence he chooses to take in his favour.
19. Therefore, in our opinion, it will be a question of the application of the law pointed out in Rr. 7 and 17 of Order .
VI and not a pure question of procedure to be decided for allowing a departure in the pleadings under a pretence that an additional written statement is permitted to be filed under Rule 9 of O.VIII. With respect to the opinion expressed in the above-noted two Punjab cases, we have further to observe that the language used in the order allowing the amendment in the plaint or allowing the of additional written statement to be filed would be of no consequence. It is obviously correct that under O.VIII, R. 9 the Court would allow the subsequent written statement merely because the plaint was amended. While rt making that order the court is not expected to be aware of the pleas which may be taken while filing such an additional written statement. It is only when the additional written statement is filed that the court will become conversant with the pleas taken in that additional written statement. At that point of time Rr. 7 and 17 of Order VI will come into play and in case in the opinion of the court the additional written statement is not confined to the amendments sought for in the plaint, the defendant will be compelled to file an application for amendment of the pleadings under Rule 17 of Order VI.
Thereafter the court will examine the entire matter, and if the amendments sought for were necessary for determining the real question in controversy the court may or may not allow the amendments. In fact, the mere direction by the court that an additional written statement be filed would convey only one meaning that the additional written statement hereinafter to be filed has to confine to the amendments already sought by the plaintiff. If the court prejudges the issues and permits additional pleas to be taken by the defendant, in a particular case it may elaborate its order seeking for the additional written statement by making pertinent ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 17 observations. But, as we have stated above, we cannot conceive of a case in which the court will be in a position to prejudge the issues and make an elaboration in its order to enable new pleas in additional written .
statements.
20. At any rate, in the case before us, the orders were simple under Order VIII, Rule 9 permitting additional written statements to be filed. After that stage, the court was not aware of what sort of pleas were likely to be raised in the additional written statements. The question arose at the time when the additional written statements of were filed and the court found that there was a departure in the pleadings and rightly asked for the amendment under R. 17 of O.VI.
21. The learned counsel also referred to us Order XII Rule rt 6 which deals with admissions made in the pleadings and said that a right accrues to the plaintiff to ask for judgment on such admissions. If a departure in the pleadings is permitted in a situation of like nature, perhaps that right for a judgment may be lost. It was, therefore, rightly contended that unless specific permission of the court was taken for amendments in the pleadings under Rule 17 of O.VI, the mere order for the filing of additional written statement under O.VIII, Rule 9 will not enable the defendant to commit a departure in his previous pleadings. It is, of course, evident that such an additional written statement will enable the defendant to take up additional pleas in respect of the amendments sought in the plaint. The dispute arises only when he takes up new pleas or inconsistent pleas with reference to the original pleas taken up in the written statement. In our opinion, amendments will have to be sought under Rule 17 of Order VI. Thus we are inclined to accept the view expressed by this Court in Dittu Ram v. Amar Chand (supra) and Tek Chand Chitkara v. Union of India (supra) and we respectfully differ from the view taken by this Court in Lachhmi Devi (supra)."::: Downloaded on - 22/09/2023 20:35:19 :::CIS 18
25. The Hon'ble Supreme Court also held in Gurdial Singh v. Raj Kumar Aneja, (2002) 2 SCC 445: 2002 SCC OnLine SC 178, .
that where a party is permitted to amend the pleadings, the changes should be incorporated in a different ink. The other side can file a reply but the reply has to be confined to the answer of the amended pleadings. It was observed:
of "13. Before parting we feel inclined to make certain observations about the loose practice prevalent in the subordinate courts in entertaining and dealing with applications for amendment of pleadings. It is a rt disturbing feature and, if such practice continues, it is likely to thwart the course of justice. The application moved by the occupants for amendment in their written statements filed earlier did not specifically set out which portions of the original pleadings were sought to be deleted and what were the averments which were sought to be added or substituted in the original pleadings. What the amendment applicants did was to give in their applications a vague idea of the nature of the intended amendment and then annex a new written statement with the application to be substituted in place of the original written statement. Such a course is strange and unknown to the procedure of amendment of pleadings. A pleading, once filed, is a part of the record of the court and cannot be touched, modified, substituted, amended or withdrawn except by the leave of the court. Order 8 Rule 9 CPC prohibits any pleadings subsequent to the written statement of a defendant being filed other than by way of defence to a set-off or counterclaim except by the leave of the court and upon such terms as the court thinks fit. Section 153 CPC entitled "General power to amend" provides that the court may at any time, and on such terms as to costs or otherwise as it may think fit, ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 19 amend any defect or error in any proceeding in a suit;
and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding. Order 6 Rule 17 CPC .
confers a discretionary jurisdiction on the court exercisable at any stage of the proceedings to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The Rule goes on to provide that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Unless and of until the court is told how and in what manner the pleading originally submitted to the court is proposed to be altered or amended, the court cannot effectively exercise its power to permit amendment. An amendment rt may involve withdrawal of an admission previously made, may attempt to introduce a plea or claim barred by limitation, or, may be so devised as to deprive the opposite party of a valuable right accrued to him by lapse of time and so on. It is, therefore, necessary for an amendment applicant to set out specifically in his application, seeking leave of the court for amendment in the pleading, as to what is proposed to be omitted from or altered or substituted in or added to the original pleading.
14. In Pleadings: Principles and Practice by Jacob and Goldrein (1990 Edn.) it is stated that a party served with a pleading which is subsequently amended may not amend his own pleading and may rely on the rule of implied joinder of issue but "if he does amend his own pleading, he is not entitled to introduce any amendment that he chooses. He can only make such amendments as are consequential upon the amendments made by the opposite party" (at p. 193).
*** ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 20 "In all cases except where amendment is allowed without leave, the party seeking or requiring the amendment of any pleading must apply to the court for leave or order to amend. The proposed .
amendments should be specified either by stating them, if short, in the body of the summons, notice or other application or by referring to them therein. In practice leave to amend is given only when and to the extent that the proposed amendments have been properly and exactly formulated, and in such case, the order giving leave to amend binds the of party making the amendment and he cannot amend generally." (at pp. 206-07).
15. The court may allow or refuse the prayer for amendment in sound exercise of its discretionary rt jurisdiction. It would, therefore, be better if the reasons persuading the applicant to seek an amendment in the pleadings as also the grounds explaining the delay, if there be any, in seeking the amendment, are stated in the application so that the opposite party has an opportunity of meeting such grounds and none is taken by surprise at the hearing on the application.
16. How an amendment allowed by the court is to be effectuated in the pleadings? English practice in this regard is stated in Halsbury's Laws of England (4th Edn., Vol. 36, para 63, at pp. 48-49) as under:
"63. Mode of amendment.--A pleading may be amended by written alterations in a copy of the document which has been served and by additions on paper to be interleaved with it if necessary. However, where the amendments are so numerous or of such nature or length that to make written alterations of the document so as to give effect to them would make it difficult or inconvenient to read, a fresh document must be prepared incorporating the amendments. If such extensive amendment is required to a writ it must be reissued. An amended writ or pleading must be ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 21 endorsed with a statement that it has been amended, specifying the date on which it was amended, the name of the Judge, master or registrar by whom any order authorizing the .
amendment was made and the date of the order; or, if no such order was made, the number of the rule in pursuance of which the amendment was made. The practice is to indicate any amendment in a different ink or type from the original, and the colour of the first amendment is usually red."
17.Stone and Iyer in Pleadings (2nd Edn.) state the of practice in regard to incorporating amendments in pleading as under (at p. 165):
"In England, it often happens that before the case comes into court and while still, the Master is rtexercising the powers conferred by a summons for directions, counsel seeks leave to amend not once but several times. The practice is to amend first in red and make later amendments in different coloured inks. A practice which we think might, with advantage, be followed would be to place before the Court, as one places before a Master in England, the proposed amendments. These may or may not be allowed as proposed, or may be altered before leave is given. Leave having been given, a new plaint or written statement showing the old pleading and with the amendments written or typed in might then be prepared and taken on the file of the Court. In cases where the addition is substantial, it may be necessary to deliver a copy of the pleading as amended. If the old matter is scored out, it must be done in such a manner as to show the original pleading and the alteration. Under Order VI Rule 7 CPC, a party has apparently to amend his pleading while it is in court. Under the old Code, it was returned to him for amendment. The Court may even now have the power to return it if it is necessary to do so. Where leave to amend is ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 22 asked for, the actual amendment must be formulated before the leave is given. If it is proposed to apply for an amendment, it is desirable to inform the other side so that there can be no .
question of surprise and no adjournment may be necessary on allowing the amendment. Pursuant to the leave granted the proceedings should be amended before the judgment is pronounced."
18. Thus, once a prayer for amendment is allowed the original pleading should incorporate the changes in a different ink or an amended pleading may be filed of wherein with the use of a highlighter or by underlining in red the changes made may be distinctly shown. The amendments will be incorporated in the pleading by the party with the leave of the court and within the time rt limited for that purpose or else within fourteen days as provided by Order 6 Rule 18 CPC. The court or an officer authorized by the court in this behalf may compare the original and the amended pleading in the light of the contents of the amendment application and the order of the court permitting the same and certify whether the amended pleading conforms to the order of the court permitting the amendment. Such practice accords with the provisions of the Code of Civil Procedure and also preserves the sanctity of the record of the court. It is also conducive to the ends of justice inasmuch as by a bare look at the amended pleading the court would be able to appreciate the shift in stand, if any, between the original pleading and the amended pleading. These advantages are in addition to convenience and achieving maintenance of discipline by the parties before the court. Amendments and consequential amendments, allowed by the court and incorporated in the original pleadings, would enable only one set of pleadings being available on record and that would avoid confusion and delay at the trial. Most of the High Courts in the country follow this practice, if necessary by making provisions in the Rules framed by the High Court for governing the subordinate ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 23 courts and their original side, if there be one. In fact, in the State of Punjab and Haryana and the Union Territory of Chandigarh, there is a local amendment whereby the text of Rule 17 in Order 6 CPC has been renumbered as .
sub-rule (1) and the following sub-rule (2) added:
"17. (2) Every application for amendments shall be in writing and shall state the specific amendments which are sought to be made indicating the words or paragraphs to be added, omitted or substituted in the original pleading."
of The abovesaid Rule appears to have been completely overlooked while moving the application for amendment. It is expected that the courts in Punjab, Haryana and Chandigarh would follow the Rule in letter rt and spirit.
19. When one of the parties has been permitted to amend his pleading, an opportunity has to be given to the opposite party to amend his pleading. The opposite party shall also have to make an application under Order 6 Rule 17 CPC which, of course, would ordinarily and liberally be allowed. Such amendments are known as consequential amendments. The phrase "consequential amendment"
finds mention in the decision of this Court in Bikram Singh v. Ram Baboo [(1982) 1 SCC 485: AIR 1981 SC 2036]. The expression is judicially recognized. While granting leave to amend a pleading by way of consequential amendment the court shall see that the plea sought to be introduced is by way of an answer to the plea previously permitted to be incorporated by way of an amendment by the opposite party. A new plea cannot be permitted to be added in the garb of a consequential amendment, though it can be applied by way of an independent or primary amendment.
20. Some of the High Courts permit, as a matter of practice, an additional pleading, by way of response to the amendment made in the pleadings by the opposite ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 24 party, being filed with the leave of the court. Where it is permissible to do so, care has to be taken to see that the additional pleading is confined to an answer to the amendment made by the opposite party and is not misused .
for the purpose of setting up altogether new pleas springing a surprise on the opposite party and the court. A reference to Order 6 Rule 7 CPC is apposite which provides that no pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same." (Emphasis supplied) of
26. It was submitted that the original defendant had died and the legal representatives were substituted on record. They rt had a right to file the written statement and thus, there is no infirmity in filing the written statement. This submission is not acceptable. It was laid down by Rajasthan High Court in Ram Gopal and another vs. Khiv Raj and others, AIR 1998 Rajasthan 98 = 1999(Suppl) Civil Court Cases 557 Raj, that the legal representatives stepped into the shoes of the deceased plaintiff or defendant. They must occupy the position occupied by their predecessor. They had to proceed with the litigation from the stage, where the death of their predecessor had taken place. It was observed:
"7. In my opinion, the contention of the learned counsel appearing for the petitioners is devoid of any force. It is settled law that the legal representatives are stepped into the shoes of the deceased plaintiff or defendant, as the ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 25 case may be, and they must adopt the position occupied by his predecessor plaintiff or defendant. The legal representatives, therefore, must proceed with the litigation from the stage where the death of the .
defendant or plaintiff had taken place. They are legally bound by the pleading of his predecessors-in-interest in whose place they have been substituted. Hence, the legal representatives substituted under O. 22, R. 4, C.P.C.
cannot set up a new case. The petitioners are bound by the proceedings taken so far against the deceased defendant. They cannot be allowed to file the written of statement, the right of which was closed as soon as the ex parte order was passed against the deceased- defendant-Govind Ram.
8. In this connection, I may refer to a decision of the rt Madras High Court in Thavazhi Kanavan v. Sankunni, AIR 1935 Mad 52, wherein it has been observed as under :
"A party who comes into the suit as the legal representative of another party cannot be allowed to depart from or vary or contradict the attitude taken up by the party whose legal representatives he is, it is obvious that if he were permitted to do so, it would be impossible to conduct any litigation where legal representatives come in."
9. I further place reliance on a decision of the Calcutta High Court in Babulal v. Jeshankar, AIR 1972 Cal 494, wherein it has been observed as under :
"A legal representative substituted in place of a deceased defendant cannot be permitted to make out a new case afresh in another written statement at this stage. He has to take up the suit at the stage at which it was left when the original party died and to continue it. The only right he has is to make a defence appropriate to his character as a legal representative of the deceased- defendant. His case is on a different footing than the addition of a new defendant which is governed by O. 1, R. 10(iv).::: Downloaded on - 22/09/2023 20:35:19 :::CIS 26
Therefore, only the order for substitution would be served on the substituted defendant and no fresh writ or summons could be issued for service on the substituted defendant."
.
27. Similarly, the Hon'ble Supreme Court also held in Vidyawati v. Man Mohan, (1995) 5 SCC 431, that the legal representative can only take the defences, which were available to the deceased and in case, they have to assert their of independent claim, they have to get themselves impleaded as a party. It was observed:
rt "3. It is seen that the petitioner's claim of right, title and interest entirely rests on the will said to have been executed by Champawati in favour of the first defendant and herself. It is now admitted across the Bar that the first defendant had life interest created under the will executed by Champawati. Therefore, the said interest is coterminous with his demise. Whether the petitioner has independent right, title and interest dehors the claim of the first defendant is a matter to be gone into at a later proceeding. It is true that when the petitioner was impleaded as a party-defendant, all rights under Order 22, Rule 4(2), and defences available to the deceased defendant became available to her. In addition, if the petitioner had any independent right, title or interest in the property then she had to get herself impleaded in the suit as a party defendant in which event she could set up her own independent right, title and interest, to resist the claim made by the plaintiff or challenge the decree that may be passed in the suit. This is the view the court below has taken rightly.
4. This Court in Bal Kishan v. Om Parkash [(1972) 2 SCC 461 : (1973) 1 SCR 850] has said thus:::: Downloaded on - 22/09/2023 20:35:19 :::CIS 27
"The sub-rule (2) of Rule 4 of Order 22 authorises the legal representative of a deceased defendant to file an additional written statement or statement of objections raising all pleas which the deceased-
.
defendant had or could have raised except those which were personal to the deceased-defendant or respondent."
5. The same view was expressed in JagdishChander Chatterjee v. Sri Kishan [(1972) 2 SCC 461 : (1973) 1 SCR 850] wherein this Court said: (SCC pp. 464-65, para 10) "... legal representative of the deceased respondent of was entitled to make any defence appropriate to his character as legal representative of the deceased respondent. In other words, the heirs and the legal representatives could urge all contentions which rtthe deceased could have urged except only those which were personal to the deceased. Indeed this does not prevent the legal representatives from setting up also their own independent title, in which case there could be no objection to the court impleading them not merely as the legal representatives of the deceased but also in their personal capacity avoiding thereby a separate suit for a decision on the independent title."
28. Therefore, the position of the law is clear that the legal representative has to proceed from the stage where the lis was pending. They cannot set out an independent claim. Thus, they were not entitled to file the additional written statement contrary to the written statement filed by their predecessor.
Learned Courts below did not notice this aspect; hence, this substantial question of law is answered accordingly.
::: Downloaded on - 22/09/2023 20:35:19 :::CIS 28Substantial questions of law Nos.2 to 8:-
29. These substantial questions of law are .
interconnected and are being taken up together for convenience.
30. The defendants asserted their adverse possession.
They claimed that their predecessor-in-interest Shonkia was in possession of an area measuring 1-9 Bigha. This possession was of continuous, hostile and peaceful. Therefore, the defendants have become the owners by way of adverse possession. Learned rt First Appellate Court accepted the plea of adverse possession taken by the defendants; however, their predecessor-in-
interest, original defendant Niharku had not even claimed possession over the suit land. He had specifically stated in para 1 of the written statement that Khasra No.300/218 is a grazing area. He claimed in para 2 that he had a right to graze the cattle as he was a peasant in the area. He had specifically denied in para 4 that he was raising any construction over Khasra No.300/218. This plea was reiterated in Para 5 and it was asserted that the defendant is in possession of his own area since time immemorial. It was stated in Para 7 that no cause of action accrued in favour of the plaintiffs as the defendant was ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 29 not making any encroachment by raising any construction.
Therefore, the predecessor-in-interest of the defendants did .
not claim any possession what to talk of any hostile possession.
31. Learned First Appellate Court held that the defendant had no occasion to plead the adverse possession because the suit was filed for a permanent prohibitory injunction restraining the of defendants from interfering with the possession of the plaintiff in Khasra No.300/218 measuring 16-06 bighas. There was no rt dispute between the parties regarding the area measuring 1-9 bighas. The dispute arose after the plaintiff obtained demarcation. The defendants took a plea that the land was in their possession for the last more than 12 years before the institution of the suit. This reasoning is not acceptable. The plaintiffs had filed a civil suit seeking a permanent prohibitory injunction for restraining the defendant from interfering with their possession. Thus, whole Khasra No.16-6 Bigha was in dispute. The plaintiffs were seeking to restrain the defendant from interfering with this entire Khasra Number. Had the defendant being in possession of any portion of the land, it would have been open for him to say that he was not interfering with the suit land, rather he had become the owner by way of ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 30 adverse possession and no decree could have been passed in favour of the plaintiffs. Thus, the reasoning that there was no .
occasion for the defendant to take up the plea of adverse possession is not correct.
32. Learned First Appellate Court ignored the fact that the legal representatives were deriving the title from the of original defendant; therefore, they were required to establish that their predecessor-in-interest had asserted a hostile title in rt denial of the title of the real owner. The present suit was one occasion, where their predecessor-in-interest Niharku could have asserted his hostile title and denied the title of the plaintiffs. The fact that the predecessor-in-interest of the defendants had not done so clearly shows that the plea taken by the defendants that they are in possession in denial of the title of the real owner is not correct.
33. Shyam Lal (DW-1) stated that his grandfather, Shonkia, was a tenant upon 5 Biswa of the land. They were in possession of 1-9 bighas of the land. The ownership rights were conferred regarding 5 biswa of land in the year 1977. One house was constructed by his father over 1 bigha 9 biswa of the land in ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 31 1981. The trees of lime and galgal were also planted. The possession over the land measuring 1 bigha 9 biswa is open. No .
person obstructed them from using the land. They considered themselves to be the owners.
34. It is apparent from the statement of this witness that he had never asserted that the possession over the land of measuring 1 bigha 9 biswa was in denial of the title of the real owner. It was only asserted that the defendants consider rt themselves to be the owners. It was held by this Court in Hari Datt & others vs Sampuran ILR 1987 (HP) 141 that mere long possession is not equivalent to adverse possession. The Commentary of R.Mitra on Article 65 of the Limitation Act was quoted as under:-
"14. R. Mitra in his commentary on Article 65 of the Limitation Act, Fourth Edition, at page 598 in note 21 has stated :
".21. Distraction between possession and adverse possession.-If occupation by A of an immovable property belonging to B to operate as a vestive fact, his possession must be adverse to that of B. There is a real distinction between adverse possession and possession simpliciter. Possession in order to be adverse must be hostile to that of the true owner. If it is to be a vestive fact the intent to possess in one's own right, must be there, adverse possession cannot operate in vacue. Article 65 of the Limitation ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 32 Act, 1963, applies not merely to the want of actual possession by the real owner, it comes into play only when the person in actual occupation for the statutory period is in such occupation in denial of .
the title of the true owner. The fundamental principle of law is that there can be no adverse possession without animus to prescribe. In other words, there can be no acquisitive prescription without the intent to acquire property of which another is the owner.'' Then in note34 at page 607, he has this to say :
of "Adverse Possession"Adverse possession means possession, which is adverse, i. e. possession of land or an interest in land by a wrong man against the will of the right man, who is the owner of the rt land or has an interest in the land. Therefore, adverse possession, as its words imply, must be actual possession of another's land with the intention to hold it and claim it as his own to the exclusion of the rightful owner. It must commence with the wrongful dispossession of the rightful owner at some particular time and must commence with wrong and maintained against the right. It must be actual, open, notorious, hostile, under claim or right, continuous, and exclusive and maintained for the statutory period. In Sitabai v.Jumo, (1935) 157 I C 283 (Sind) it was held that possession and adverse possession do not mean the same thing. A mere user of the property cannot be taken as a definite assertion of proprietary right; there must be some definite quality in the possession before it can be called adverse, and some act of an unequivocal character to put the owner on guard. There cannot be adverse possession if the defendant himself did not know that he was occupying somebody else's land. Mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 33 possession really means a 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 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 of the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real rt owner of the former's hostile action."
35. Similarly, it was held by this Court in Sushima Kishandev Kaushal v. Council for Tibetan Education, 2006 SCC OnLine HP 15: AIR 2006 HP 122 that a claim on the basis of title does not amount to adverse possession. Where a person did not know that the land belonged to another, he cannot acquire title by adverse possession. It was observed:
"13. In the present case, of course, the defendant has set up the plea of adverse possession, in the alternative, but it has not categorically stated that it had the animus to possess the suit property adversely to the plaintiff. In fact,his plea is that it had purchased the property from the mother of the plaintiff, who was recorded as the owner in the revenue papers. It has nowhere stated that it knew or even had any inkling at any time before the institution of the suit that the plaintiff was the owner of the suit land. That means when the defendant came in possession of the suit land, on the basis of the sale made in its favour by the mother of the plaintiff, it did not have ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 34 the requisite animus to prescribe against the present plaintiff. One can be said to have the animus to prescribe against the true owner only if he knows who the true owner is. The Hon'ble Supreme Court in Annasaheb .
Bapusaheb Patil v. Balwant alias Balasaheb Babusaheb Patel etc. and four connected matters, (AIR 1995 SC 895) has held that a person, who bases his title on adverse possession, must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. It has further been held that in deciding whether the acts alleged by a of person constitute adverse possession, regard must be had to the animus of the person doing those acts, which must be ascertained from the facts and circumstances."
36. Thus, it has been duly recognized that a possession rt to be adverse has to be in denial of the title of the real owner and there can be no adverse possession in the absence of hostile animus. The High Court Karnataka High Court held in Danappa Revappa Kolli v. Gurupadappa Mallappa Pattanashetti, 1989 SCC OnLine Kar 338: ILR 1990 Kar 610: (1990) 3 Kant LJ 497, that if the plaintiff was not aware of the fact that the land did not belong to him but was under a bona fide belief that the land was found part of his original land and the defendant was not aware until the measurement. No adverse possession is established. It was observed (at page 612):
"5. Learned Counsel for the appellant has strongly contended that mere possession is sufficient to perfect his title by adverse possession and there need not be ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 35 animus on the part of the plaintiff to perfect his title by adverse possession. In support of this plea, learned Counsel for the appellant has placed reliance on a decision of the Supreme Court in Kshitish .
Chandra v. Commission of Ranchi (1981) 2 SCC 103: AIR 1981 SC 707. In para 8 of the said Judgment, it has been observed that "all that the law requires is that the possession must be open and without any attempt at concealment. It is not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner." The Supreme Court was considering the of reasoning given by the High Court that adverse possession should have been effective and adequate in continuity and in publicity. This reasoning of the High Court was not approved by the Supreme Court and it was rt in that connection that the aforesaid observation was made. The Supreme Court in that decision, was not called upon to pronounce as to the ingredients of adverse possession. Apart from actual and continuous possession which are among other ingredients of adverse possession, there should be necessary animus on the part of the person who intends to perfect his title by adverse possession. A person who under the bonafide belief thinks that the property belongs to him and as such he has been in possession, such possession cannot at all be adverse possession because it lacks necessary animus for perfecting title by adverse possession. In the instant case, it is only on the measurement made at the instance of the defendant, the plaintiff came to know that his land bearing S. No. 483/2A did not extend upto the bund;
whereas the land of the defendant extended beyond the bund towards the land of the plaintiff. The Courts below have negatived the plea of adverse possession. This finding is a finding of fact. The contention of the learned Counsel for the appellant is that the measurement took place only in about the year 1977 or 1973 but the defendant purchased the land in the year 1961 and as such the period from 1961 to 1977 was sufficient to perfect his title by adverse possession. This contention overlooks the ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 36 fact that the plaintiff was not aware till the land was measured that the suit land did not belong to him. He was under a bona fide belief that the suit land formed part of his land bearing S. No. 483/2A. Thus the plaintiff was not .
aware of the fact that the suit land which was in his possession did not belong to him whereas he was under a bona fide belief that the suit land formed part of S. No. 483/2A of which he is the owner. Similarly, the defendant was not aware of this fact until the land was measured. Para 2 of the plaint averments to which the lower Appellate Court has made a specific reference also goes to of show that the plaintiff was not aware of this fact until the land was measured.
6. In Ejas Ali v. Special Manager, Court of Wards, Balrampur EstateAIR 1935 PC 53.It is held that the principle of law is rt firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed. Again in Munnalal, Minor v. Mst. Kashibai AIR 1947 PC 15. it is held that "the essential fact is that Janaki Bai and her successors remained in possession of the property for some 40 years prior to the institution of the suit and that they took possession under a claim of right adverse to the title of the appellant. In their Lordship's opinion, in these circumstances, the claim in the second suit is barred under Article 144 Limitation Act. In the aforesaid case, the facts revealed that possession was obtained by Janaki Bai and her successors in denial of the title of the true owner.
The Supreme Court in P. Lakshmi Reddy v. L. Lakshmi Reddy AIR 1957 SC 314 has held that the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. It has also been further held that the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.
This Court in R.C.R. Institution v. State of Mysore AIR 1976 ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 37 Karnataka 75 has held that: "Thus the possession of the suit property by the plaintiff-church, if any, as evidenced by the graves found in the suit property by the Commissioner, was neither exclusive nor accompanied by .
the required animus to establish adverse possession.
7. Applying the principles enunciated in the aforesaid decisions, it is not possible to hold that the possession, in the instant case, of the suit land can be termed as 'adverse possession' as it cannot be held that it is in denial of the title of the true owner because the plaintiff himself was not aware of the fact that the suit property of did not form part of S. No. 483/2A nor it was known to the defendant who is the owner of S. No. 482/2, that the suit property of which the plaintiff was in possession, formed part of S. No. 482/2. Therefore, there was no requisite rt animus on the part of the plaintiff to possess the property in denial of the title of the true owner. Hence the lower Appellate Court is justified in law in holding that the plaintiff has failed to prove that he has perfected his title by adverse possession to the suit property. The finding as to adverse possession is a finding of fact (See Manikayala Rao v. NarasimhaswamiAIR 1966 SC 470. Hence no substantial question of law arises for consideration in this appeal. Accordingly, the appeal is not admitted and it is rejected."
37. This judgment was approved by the Hon'ble Supreme Court of India in D.N. Venkatarayappa and another Vs. State of Karnataka & others, 1997 (7) SCC567.
::: Downloaded on - 22/09/2023 20:35:19 :::CIS 3838. A similar view was taken in A.V. Rangacharya v.
Pillanjinappa, 1998 SCC OnLine Kar 321: ILR 1999 Kar 1524, .
wherein it was held (at page 1531) "10. The defendants have also set up a plea of adverse possession, which plea is reiterated before me. A person who claims the property as his in bonafide belief, cannot set up a plea of adverse possession because the necessary animus is absent. The ordinary requirement of adverse of possession is that it should be nec vi nec clam nec precario. This view is reiterated in the case Danappa Revappa Kolli v. Gurupadappa Mallapaa ILR 1990 Kar. 610. The following passage is relied upon:
rt "Apart from actual and continuous possession which are among others, ingredients of adverse possession there should be necessary animus on the part of the person who intends to perfect his title by adverse possession. A person who under the bonafide belief thinks that the property belongs to him and as such he has been in possession, such possession cannot at all be adverse possession because it lacks necessary animus for perfecting title by adverse possession."
11. In Venkatachalaiah v. Nanjundaiah ILR 1992 KAR 984., the two inseparable ingredients, namely, (1) Corpus Possession (Physical possession) and (2) Animus Possidendi (intention to exclude the adversary from possession) are highlighted. It is also made clear that the possession of a person bona fide believing that the property belongs to him cannot be construed to be adverse. The plaintiff must have had somebody in his mind as owner and enjoy the property to the knowledge of that person against his interest. Mere possession over a statutory period is not sufficient to succeed in a plea of adverse possession unless it is accompanied by adverse animus. Therefore, the plea of adverse possession set up ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 39 by the defendant must also fall to the ground."
39. It was held in Arundhati Mishra vs. Sriram Charitra Panday 1994 (2) SCC 29, that where a person never renounced .
the title of the real owner to the knowledge of the owner but asserts the title in himself, his plea does not amount to a plea of adverse possession. It was observed:-
of "4. The question in this case is whether the plea of adverse possession sought to be set up by the respondent could be permitted to be raised. The pleas based on title and adverse possession are mutually inconsistent and the rt latter does not begin to operate until the former is renounced. It is his case that he came into possession of the suit house in his own right and remained in possession as an owner. The appellant is only benamidar.
Therefore, his plea is based on his own title. He never denounced his title nor admitted the title of the appellant.
He never renounced his character as an owner asserting adverse possession openly to the knowledge of the appellant and the appellant's acquiescence to it. Thereafter, he remained in open and peaceful possession and enjoyment to the knowledge of the appellant without acknowledging/or acquiescing to the right, title and interest of the appellant. The plea of adverse possession, though available to the respondent, was never raised by him. Only on receipt of the first notice he denied the title of the appellant and made it known to him for the first time through the reply notice got issued by him. Even then the plea of adverse possession was not raised in the written statement. No explanation for the belated plea was given. Even assuming that the reply dated 15/03/1971 constitutes an assertion of adverse possession, the limitation would start running against the appellant only from 15/03/1971 and not earlier. The suit was filed in 1978 within 12 years. Under these circumstances, the High ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 40 Court is not justified in permitting the respondent to raise the plea of adverse possession. It is made clear that we are not expressing any opinion on merits. The judgment of the High Court is set aside and the matter is remitted to .
the High Court for disposal on merits according to law.
The appeal is allowed but without costs."
40. Learned Trial Court had relied upon the judgment of the Hon'ble Supreme Court in Deva vs. Sajjan Kumar, (2003) 7 SCC 481: 2003 SCC OnLine SC 914, wherein the defendant of admitted about coming to know that the land in their possession belongs to the plaintiff after the demarcation. It was held by the rt Hon'ble Supreme Court that this admission does not prove the adverse possession. It was observed:
"9. In the above part of the deposition, the defendant admits that the dispute of encroachment concerning suit portion 70′ × 20′ came to his knowledge only after filing of the suit. The defendant has described suit land 70′ × 20′ to be part of his Survey No. 453. But all the courts have come to a concurrent finding that the suit land to the extent of 70′ × 20′ is part of Survey No. 452 belonging to the plaintiff.
10. From the deposition of the defendant, it appears that he had encircled by a compound suit land 70′ × 20′ by treating it to be a part of his adjoining Survey No. 453.
11. The deposition extracted above, in any case, negatives the defendant's case of having prescribed title by adverse possession from the year 1940. The animus to hold the land adversely to the title of the true owner can be said to have started only when the defendant derived knowledge that his possession over the suit land had been alleged to be an act of encroachment -- on the plaintiff's survey ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 41 number.
12. The abovequoted admission contained in the defendant's deposition, does not make out a case in his favour of having acquired title by adverse possession.
.
Mere long possession of the defendant for a period of more than 12 years without intention to possess the suit land adversely to the title of the plaintiff and the latter's knowledge cannot result in acquisition of title by the defendant to the encroached suit land.
13. The plaintiff's suit is not merely based on his prior possession and subsequent dispossession but also on the of basis of his title to Survey No. 452. The limitation for such a suit is governed by Article 65 of the Limitation Act of 1963. The plaintiff's title over the encroached land could not get extinguished unless the defendant had prescribed rt title by remaining in adverse possession for a continuous period of 12 years.
14. The High Court, therefore, was right in upsetting the judgments of the two courts below on the question of adverse possession and limitation while granting a decree of possession in favour of the plaintiff."
41. The adverse possession was explained by the Hon'ble Supreme Court in State of Kerala v. Joseph, 2023 SCC OnLine SC 961 as under:
20. The principle of adverse possession has been defined by the Privy Council in Perry v. Clissold, [1907] A.C. 73 in the following terms:
"It cannot be disputed that a person in possession of land in the assumed character of the owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 42 the provisions of the statute of Limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title."
.
21. Before proceeding to do so, it is essential to take note of the law governing such a claim. After a perusal and consideration of various judgments rendered by this Court, the following principles can be observed :
21.1 Possession must be open, clear, continuous and hostile to the claim or possession of the other party; all three classic requirements must coexist- nec vi, i.e., of adequate in continuity; nec clam, i.e., adequate in publicity; and nec precario, i.e., adverse to a competitor, in denial of title and knowledge;
rt (a) In Radhamoni Debi v. Collector of Khulna, 1900 SCC OnLine PC 4, the Privy Council held that-
"The possession required must be adequate in continuity, in publicity, and in extent to show that it is possession adverse to the competitor."
(b) Further, the Council Maharaja Sri Chandra Nandi v. Baijnath Jugal Kishore, AIR 1935 PC 36 observed-
"It is sufficient that the possession should 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."
(c) A Bench of three judges of this Court in Parsinni v. Sukhi, (1993) 4 SCC 375 held that "Party claiming adverse possession must prove that his possession must be 'nec vi, nec clam, nec precario' i.e. peaceful, open and continuous. The possession must be adequate, in continuity, in publicity and in ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 43 extent to show that their possession is adverse to the true owner."
(d) In Karnataka Board of Wakf v. Govt. of India (two- Judge Bench), (2004) 10 SCC 779 it was held:-
.
"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 the of 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."
rt This case was relied on in the case of M. Venkatesh v. Bangalore Development Authority, (2015) 17 SCC 1 (three-Judge Bench), Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729 (three-Judge Bench).
(e) This Court in a recent case of M Siddiq (D) through LRs v. Mahant Suresh Das & Ors., (2020) 1 SCC 1 (five-Judge Bench) reiterated this principle as under -
"748. A person who sets up a plea of adverse possession must establish both possession which is peaceful, open and continuous - possession which meets the requirement of being 'nec vi nec claim and nec precario'. To substantiate a plea of adverse possession, the character of the possession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. These requirements have to be duly established first by adequate pleadings and second by leading sufficient evidence."::: Downloaded on - 22/09/2023 20:35:19 :::CIS 44
21.2 The person claiming adverse possession must show clear and cogent evidence to substantiate such claim; This Court in Thakur Kishan Singh v. Arvind Kumar, (1994) 6 SCC 591 (two-Judge Bench) held that -
.
"5. Possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of the real owner. Mere possession for howsoever length of time does not result in converting the permissive of possession into adverse possession..."
Reference may also be made to M. Siddiq (supra). rt 21.3 Mere possession over a property for a long period of time does not grant the right of adverse possession on its own;
(a) In Gaya Prasad Dikshit v. Dr. Nirmal Chander and Anr. (two-Judge Bench), (1984) 2 SCC 286, this court observed-
"1... It is not merely unauthorised possession on termination of his licence that enables the licensee to claim title by adverse possession but there must be some overt act on the part of the licensee to show that he is claiming adverse title. It is possible that the licensor may not file an action for the purpose of recovering possession of the premises from the licensee after terminating his licence but that by itself cannot enable the licensee to claim title by adverse possession. There must be some overt act on the part of the licensee indicating the assertion of hostile title. Mere continuance of unauthorised possession even for a period of more than 12 years is not enough."::: Downloaded on - 22/09/2023 20:35:19 :::CIS 45
Reference may also be made to Arvind Kumar (supra); Mallikarjunaiah v. Nanjaiah, (2019) 15 SCC 756 (two-Judge Bench); Uttam Chand (supra).
21.4 Such clear and continuous possession must be .
accompanied by animus possidendi - the intention to possess or in other words, the intention to dispossess the rightful owner; in Karnataka Board of Wakf (supra) it was observed-
"...Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors of that are to be accounted for in cases of this nature..."
rt (a) The case of Annakili v. A. Vedanayagam, (2007) 14 SCC 308 (two-Judge Bench) also shed light on this principle as under -
"24. 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 the possessory title for the said purpose. The 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..."
::: Downloaded on - 22/09/2023 20:35:19 :::CIS 46(b) In Des Raj and Others v. Bhagat Ram, (2007) 9 SCC 641 (two-judge Bench) this Court observed -
"21. In a case of this nature, where long and continuous possession of the plaintiff-
.
respondent stands admitted, the only question which arose for consideration by the courts below was as to whether the plaintiff had been in possession of the properties in hostile declaration of his title vis-à-vis his coowners and they were in know thereof."
(c) This court in L.N. Aswathama v. P. Prakash, of (2009) 13 SCC 229 (two-judge Bench) had observed that permissive possession or possession in the absence of Animus possidendi would not constitute the claim of adverse possession.
rt
(d) It was also held in the case of Chatti Konati Rao v. Palle Venkata Subba Rao, (2010) 14 SCC 316 (two- Judge Bench) -
"15. Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the 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 that possession was open and undisturbed..." (Emphasis supplied) Referring to the above judgment Subha Rao (supra) this Court has reiterated the cardinality of the presence of Animus possidendi in a case concerning adverse possession in Brijesh Kumar & Anr. v. Shardabai (dead) by LRs., (2019) 9 SCC 369 (two-Judge Bench).
::: Downloaded on - 22/09/2023 20:35:19 :::CIS 4721.5 Such a plea is available not only as a defence when title is questioned, but is also available as a claim to a person who has perfected his title;
The prior position of law as set out in Gurudwara Sahab v.
.
Gram Panchayat Village Sirthala, (2014) 1 SCC 669 (two-
Judge Bench) was that the plea of adverse possession can be used only as a shield by the defendant and not as a sword by the plaintiff. However, the position was changed later by the decision of this Hon'ble Court in the case of Ravinder Kaur (supra) had held that - "...Title or interest is acquired it can be used as a sword by the plaintiff as of well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession..." rt The position in Ravinder Kaur (supra) was followed in Narasamma & Ors. v. A. Krishnappa (Dead) Through LRs. (three-Judge Bench).
21.6 Mere passing of an ejectment order does not cause brake in possession neither causes his dispossession; In Balkrishna v. Satyaprakash, (2001) 2 SCC 498 (two-Judge Bench) this Court held :
"...Mere passing of an order of ejectment against a person claiming to be in adverse possession neither causes his dispossession nor discontinuation of his possession which alone breaks the continuity of possession."
21.7 When the land subject of proceedings wherein adverse possession has been claimed, belongs to the Government, the Court is duty-bound to act with greater seriousness, effectiveness, care and circumspection as it may lead to the Destruction of a right/title of the State to immovable property. In State of Rajasthan v. Harphool Singh, (2000) 5 SCC 652 (two-Judge Bench) it was held :
::: Downloaded on - 22/09/2023 20:35:19 :::CIS 48"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 the destruction of the right/title of the State to immovable property and conferring upon a third-party encroacher title where he had none."
Further, in Mandal Revenue Officer v. Goundla Venkaiah, (2010) 2 SCC 461 (two-Judge Bench) it was stated:
"...It is our considered view that where an of 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 rt circumspection. Any laxity in this regard may result in the destruction of right/title of the State to immovable property and give an upper hand to the encroachers, unauthorised occupants or land grabbers."
21.8 A plea of adverse possession must be pleaded with proper particulars, such as, when the possession became adverse. The court is not to travel beyond pleading to give any relief, in other words, the plea must stand on its own two feet. This Court has held this in the case of V. Rajeshwari v. T.C. Saravanabava, (2004) 1 SCC 551 (two-
judge Bench) :
"...A plea not properly raised in the pleadings or issues at the stage of the trial, would not be permitted to be raised for the first time at the stage of appeal..."
It has also been held in the case of State of Uttrakhand v. Mandir Sri Laxman Sidh Maharaj, (2017) 9 SCC 579 (two- judge Bench) :
"...The courts below also should have seen that courts can grant only that relief which is claimed by the plaintiff in the plaint and such relief can be ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 49 granted only on the pleadings but not beyond it. In other words, courts cannot travel beyond the pleadings for granting any relief..."
Mandir Sri Laxman Sidh Maharaj (supra) was relied on in .
Dharampal (Dead) v. Punjab Wakf Board, (2018) 11 SCC 449 (two-judge Bench) on the same principle. 21.9 Claim of independent title and adverse possession at the same time amount to contradictory pleas. The case of Annasaheb Bapusaheb Patil v. Balwant, (1995) 2 SCC 543 (two-judge Bench) elaborated this principle as:
of "15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be rtreferred to as a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all."
This principle was upheld in the case of Mohan Lal v.
Mirza Abdul Gaffar, (1996) 1 SCC 639 (two-judge Bench) -
"4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 50 under the agreement and continued to remain in possession till the date of the suit. Thereby the plea of adverse possession is not available to the appellant."
.
The Court in Uttam Chand (supra) has reiterated this principle of adverse possession.
21.10 The burden of proof rests on the person claiming adverse possession.
This Court, in P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59 (two-Judge Bench), held that initially, the of burden lay on the landowner to prove his title and title. Thereafter it shifts on the other party to prove title by adverse possession. It was observed: -
rt "34. The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned: once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession...."
The Court reiterated this principle in the case of Janata Dal Party v. Indian National Congress, (2014) 16 SCC 731 (two-judge Bench):
"...the entire burden of proving that the possession is adverse to that of the plaintiffs, is on the defendant..."
21.11 The State cannot claim the land of its citizens by way of adverse possession as it is a welfare State. [State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404 (two-judge Bench)] ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 51
42. The Learned Trial Court held that since the plea of the adverse possession was taken after the demarcation was .
conducted in the present case; therefore, it also implied that the defendants were not aware of the ownership of the land in their occupation. Learned First Appellate Court held that such an inference could not be drawn as the defendants never stated any of such fact. Learned Trial Court had rightly observed that the absence of the plea taken by Niharku regarding the possession rt of the suit land could only be explained by the fact that Niharku did not know that he was in possession of the land of the plaintiffs and this fact came to the knowledge of the defendants only after the demarcation. Even the defendant-Shyam Lal has not stated anywhere in his statement that he or his predecessor-
in-interest ever disclaimed the title of the real owner, which would have the effect of the commencement of the period of limitation as noticed above. A long possession will not amount to adverse possession, as noticed in the judgments cited above;
therefore, the learned First Appellate Court erred in accepting the plea of adverse possession taken by the defendants.
43. Plaintiff-Jagdish (PW-1) denied in his cross-
examination that the defendant is in possession of 1 bigha 9 ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 52 biswa of land. He volunteered to say that it was a different land.
Learned First Appellate Court read this statement to mean that .
the possession of the defendant was acknowledged by the plaintiff. No such inference can be drawn in the present case.
The plaintiffs specifically denied the possession of the defendant on the suit land. Merely, because, he had stated that of possession of the defendant was on some other land cannot constitute an admission regarding the suit land.
44. rt It was submitted that the plaintiff has not impleaded other co-sharers and the suit is bad for non-joinder of all the co-sharers. This submission cannot be accepted. It was laid down by the Hon'ble High Court in Dharam Singh Versus Jagdish Chand AIR 2005 (HP) 10 that a suit for possession can be filed by a co-sharer against the trespasser without impleading other co-
sharers. It was observed:
"5. The question whether a co-sharer can institute and maintain a suit for possession against a trespasser in respect of the entire property irrespective of his share therein without impleading the other co-sharers is maintainable or not, came up before a Full Bench of the Patna High Court in Ram Niranjan Das v. Loknath Mandal, AIR 1970 Patna 1 and it was held that such a suit by a co-sharer without impleading the other co-sharers was maintainable and that a co-sharer can recover the possession of ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 53 the entire land from a trespasser irrespective of his share therein.
6. A similar question also arose before the Full .
Bench of the Punjab and Haryana High Court in Ajmer Singh (deceased by L.R.'s) v. Shamsher Singh, AIR 1984 Punj and Har 58. Following the ratio laid down by the Full Bench of the Patna High Court, it was held that a suit by a co-sharer for possession against a trespasser without impleading the other co-sharers is maintainable and a decree for possession can be passed. I am in full agreement with the ratio laid of down by the Full Bench of the Patna High Court as well as the Full Bench of Punjab and Haryana High Court. In view of the said ratio, the learned Additional District Judge rightly held the suit to be maintainable and granted a decree for possession in favour of the rt plaintiff."
45. Therefore, the suit is not bad for non-joinder of necessary parties.
46. It was submitted that the construction was raised in the year 1981 and the suit was filed in the year 2002, hence, the same was barred by limitation. This plea cannot be accepted. It was laid down by this Court in Tilak Raj vs. Bhagat Ram & Another 1997 (1) Sim. LC 281 that a suit based on the title where a plea of adverse possession had not been raised could not be barred by limitation on the ground that it was ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 54 filed after more than 12 years from the date of dispossession.
It was observed:-
.
"10. The present suit is for possession on the basis of title. Article 63, Limitation Act, 1963, governs the present case. It provides that for possession of immovable property or any interest therein based on the title, the limitation of twelve years begins to run from the date of the defendant's interest becomes adverse to the plaintiff of
11. It is well settled that adverse possession means a hostile assertion, that is, a possession which is expressly or impliedly in denial of the title of the true rt owner.
12. It is also well settled that a person who bases his title on adverse possession must plead and prove by clear and unequivocal evidence, that is, possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts of the defendant constitute adverse possession, regard has to be had to the animus of such defendant which has to be ascertained from the facts and circumstances of each case.
13. It is equally well settled that mere possession for howsoever long a period is not enough to claim title in as much as the possession has to be adverse.
14. In Liaq Mohammad v D. D. A. and others, AIR 1994 NOC (Delhi) 35, it has been held that a suit for possession based on the title, where a plea of adverse possession has been raised, would not be barred by limitation on the ground that it has been filed after the expiry of twelve years from the date of dispossession.
15. Equally, it can be said that once the defendant has failed to establish his adverse possession for the statutory period, a suit for possession based on title ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 55 cannot be dismissed as being time-barred on the ground that the same was filed after the expiry of twelve years from the date of dispossession."
47. Similarly, it was held in Indira v. Arumugam, (1998) 1 .
SCC 614 that a suit based on the title cannot be defeated on the ground of limitation unless the plea of adverse possession is established. It was observed:-
of "4. The aforesaid reasoning of the learned Judge, with respect, cannot be sustained as it proceeds on the assumption as if old Article 142 of the earlier Limitation Act was in force wherein the plaintiff who rt based his case on the title had to prove not only the title but also possession within 12 years of the date of the suit. The said provision of law has undergone a metamorphic sea change as we find under the Limitation Act, 1963 Article 65 which reads as under:
Description of the Period of Time from which suit:- For limitation:- period begins to possession of Twelve years run:- When the immovable possession of the property or any interest therein defendant based on the title becomes adverse to the plaintiff.
5. It is, therefore, obvious that when the suit is based on the title for possession, once the title is established on the basis of relevant documents and other evidence unless the defendant proves adverse possession for the prescriptive period, the plaintiff cannot be non-suited. Unfortunately, this aspect of the matter was missed by the learned Judge and, therefore, the entire reasoning for disposing of the Second Appeal has got vitiated. Only on that short ground and without expressing any opinion on the ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 56 merits of the question of law framed by the learned Judge for disposing of the Second Appeal, this appeal is allowed."
48. Similar is the judgment of this Court in Shishi Ram v.
.
Megh Chand, 2012 SCC OnLine HP 5133 = AIR 2013 HP 65, wherein it was held:-
"12. It is settled law that mere possession however long does not necessarily mean that it is adverse to of the true owner. Adverse possession really 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/ roved rt must be adequate in continuity, 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 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 possession actually informing the real owner of the former's hostile action.
.......................
14. The learned first Appellate Court thus rightly concluded that when the plaintiff had filed a suit for possession based upon the title and the defendant had taken a plea of adverse possession to defend his title, in that eventuality of the defendant, 's failure to prove his adverse possession, the suit filed by the plaintiff could not have been dismissed on the ground that the defendant failed to prove the possession within a period of 12 years prior to the filing of the ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 57 suit as held by the Apex Court in Indira v. Arumugam AIR 1999 SC 1549."
49. In the present case, the plea of the plaintiff regarding .
the adverse possession has not been proved. Therefore, the plaintiff was rightly held entitled to the relief of possession.
50. It was submitted that the identification of the property was not made. This cannot be accepted. It was laid of down by this Court in Basant Singh Versus Kishan Dayal RSA no.
187 of 2007, decided on 13.09.2019 that once the title of the rt plaintiff is admitted by taking the plea of adverse possession, the argument that property is not identifiable falls to the ground. It was observed:
"21. Once a plea of adverse possession has been raised, it not only pre-supposes the title over the suit land of the plaintiff, but it even admits the identification of the property or else this plea would be in the air. After all, if the defendant is in adverse possession, then obviously, the same is over the property in dispute or else he would not have raised such a plea. A plea of adverse possession implies an admission of title, which is supposedly extinguished.
22. In taking this view, I am supported by the judgment of the Punjab and Haryana High Court in Jagat Singh and others vs. Sri KishanDass and others 2008 (149) P. L. R. 67, the relevant portion whereof reads as under:
"5. The question that the plaintiff has not established the identity of the suit land or the ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 58 property cannot be identified, is not borne out from the record. The defendant-appellants have raised a plea of adverse possession. Once a plea of adverse possession is raised, it pre-supposes .
the title over the suit land of the plaintiff. The title of the plaintiff is deemed to be admitted, and the argument that the property is not identifiable falls to the ground. Therefore, the argument raised by learned counsel for the appellants that an infructuous decree could not be passed is not made but in view of the plea of of adverse possession over the suit land raised by the appellants."
23. On the basis of the aforesaid reasoning, even the findings recorded by the learned Courts below to the rt effect that the demarcation has not been conducted in accordance with the instructions issued by the Financial Commissioner are erroneous as it was for the defendant to have established a better title than the plaintiff, especially, when he has not been able to prove his adverse possession over the suit land."
51. This position was reiterated in Nek Ram v. Surjan Singh, 2019 SCC OnLine HP 1066 = 2019 (4) CivCC 834.Therefore, the question of identification will not arise in the present case.
52. The defendant had taken a plea of adverse possession. It was laid down by this Court in Basant Singh Versus Kishan Dayal RSA no. 187 of 2007, decided on 13.09.2019, that when the defendant raises a plea of adverse possession, he ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 59 impliedly admits the ownership of the plaintiffs over the land in dispute. It was observed:-
.
"24. It is more than settled that when the defendant acknowledges the title of the plaintiff by raising a plea of adverse possession, then the relief for possession can be denied to the plaintiff only in the event the defendant proves the title by way of adverse possession or proves better title in the suit land.
25. In T. Anjanappa and others vs. Somalingappa and another (2006) 7 SCC 570, the Hon'ble Supreme Court of held as under:
"21. The High Court has erred in holding that even if the defendants claim adverse possession, rt they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. The requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying the title of the true owner do not arise. Above being the position the High Court's judgment is clearly unsustainable."
[See also Des Raj and Ors. v. Bhagat Ram (Dead) By Lrs. and Ors. 2007 (3) SCALE 371; Govindammal v. R. Perumal Chettiar & Ors., JT 2006 (10) SC 121 :
(2006) 11 SCC 600]."
53. Therefore, the plaintiffs were entitled to the decree for possession and the learned First Appellate Court had erred in denying such a decree to them.
54. The learned First Appellate Court ignored the absence of the plea of adverse possession in the written statement filed by the original defendant-Niharku and the fact ::: Downloaded on - 22/09/2023 20:35:19 :::CIS 60 that in the absence of any plea of the adverse possession, the plea taken by the legal representatives regarding their .
possession being adverse and in denial of the title of the real owner from the time of their predecessor could not have been accepted. Learned First Appellate Court ignored the essential ingredients of adverse possession and equated the long of possession with adverse possession; hence, these substantial questions of law are answered accordingly.
Final Order:
rt
55. In view of the above, the present appeal is allowed and judgment and decree passed by the learned First Appellate Court are set aside while those passed by the learned Trial Court are restored. Pending miscellaneous applications, if any, shall also stand disposed of.
(Rakesh Kainthla) Judge 22nd, September, 2023 (pathania) ::: Downloaded on - 22/09/2023 20:35:19 :::CIS