Himachal Pradesh High Court
Pohu Lal @ Rangi vs Smt. Sheela Devi &Anr on 26 June, 2024
Neutral Citation Number 2024:HHC:4029 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA Nos. 32 and 34 of 2020 Reserved on: 28.05.2024 .
Date of decision: 26.06.2024
1. RSA No. 32 of 2020 Pohu Lal @ Rangi ....Appellant Versus Smt. Sheela Devi &Anr.
...Respondent
2. RSA No. 34of 2020 Pohu Lal @ Rangi ....Appellant r Versus Manjeet Singh &Anr.
....Respondents Coram Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting? Yes For the Appellant(s) : Mr Sanjeev Kuthiala, Senior Advocate, with Mr Abhishek, Advocate in both the appeals.
For the Respondents : Ms. Devyani Sharma, Senior Advocate with Mr. Shivam Sharma, Advocate in both the appeals.
Rakesh Kainthla,Judge The present appeal is directed against the judgment and decree dated 27.11.2019, passed by learned Additional District Judge, _________________________
1. Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 26/06/2024 20:32:48 :::CIS 2 Nalagarh, District Solan, H.P. (learned First Appellate Court), vide which the appeal filed by the appellant (defendant before the learned .
Trial Court) was dismissed and the judgment and decree dated 27.03.2015 passed by learned Civil Judge (Senior Division), Nalagarh, District Solan, H.P. (learned Trial Court) was upheld. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a Civil Suit before the learned Trial Court for seeking the relief of permanent prohibitory injunction for restraining the defendant through his agents, servants or associates from interfering and uprooting the garlic crop etc from the land measuring 15 Marla comprised in Khata Khatauni No. 4/7min bearing Khasra No. 271/6, pertaining to and situated in the area of village/mauja Gaguwal H.B. No. 122 Prgana & Tehsil Nalagarh, District Solan, H.P. (hereinafter referred to as the "suit land") and removing the wheat straw and other raw material from the suit land.
It was pleaded that the plaintiff is the owner in possession of the suit land. The defendant is the real brother-in-law of the plaintiff. He started interfering with the possession of the plaintiff over the suit ::: Downloaded on - 26/06/2024 20:32:48 :::CIS 3 land taking the undue advantage of the relationship. The plaintiff requested the defendant repeatedly not to do so but in vain. Hence, .
the suit was filed to seek the relief as mentioned above.
3. The suit was opposed by filing a written statement, taking preliminary objections regarding lack of maintainability and cause of action, and the plaintiff having lost the title by way of adverse possession. The contents of the plaint were denied on merits.
It was asserted that the plaintiff purchased the suit land from the previous owner on 27.12.1989. The defendant is in possession of the suit land since 08.09.1990, when the Kacha that ched roof house of the defendant over the adjoining land was damaged in the rainy season and the defendant started constructing the residential house, and cowshed over the suit land, openly and peacefully. The defendant is in adverse possession of the suit land. He got an electric connection in the residential house on 25.05.1992, and a water connection on 28.11.1994. The defendant has become the owner by way of adverse possession and the plaintiff has no right, or title over the suit land.
The defendant is using the suit land as his residential house, bathroom, toilet, staircase, cowshed and courtyard. He is also using a portion of the suit land for collecting grass, fuel wood etc. The ::: Downloaded on - 26/06/2024 20:32:48 :::CIS 4 plaintiff never grew any garlic crop on the suit land. The suit was filed without any basis. Hence, it was prayed that the suit be dismissed.
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4. A counterclaim was also filed by the defendant seeking a decree of a declaration that he had become owner by way of adverse possession and the entries in the revenue record are incorrect. A consequential relief for a permanent prohibitory injunction for restraining the plaintiff from interfering in the suit land was also sought.
5. to A replication denying the contents of the written statement and affirming those of the plaint was filed.
6. A written statement to the counter claim denying its contents was also filed. It was asserted that the defendant is a stranger to the suit land and he has no concern with it. The counterclaim is not maintainable and the defendant has not come to the Court with clean hands. Therefore, it was prayed that the counterclaim be dismissed.
7. The learned Trial Court framed the following issues on 18.08.2008:-
1. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed for? OPP ::: Downloaded on - 26/06/2024 20:32:48 :::CIS 5 Whether the suit is not maintainable in the 2. present form? OPD Whether the plaintiff has no cause of action 3. to file the present suit? OPD.
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Whether the plaintiff has no locus standi to 4. file the present suit? OPD Whether the counter-claimant is entitled 5. for declaration to the effect that he has become owner-in-possession of the suit land by way of adverse possession, as alleged? OPD Whether the revenue entries of ownership in 6. favour of the plaintiff are wrong, illegal, null r and void? OPD.
Whether the counter-claimant is entitled 7. for consequential relief of permanent prohibitory injunction, as alleged?OPD Whether the counter claimant has no cause 8. of action to file the present counterclaim?
OPP Whether the counterclaim is not 9. maintainable in the present form?OPP Whether the counter claimant has not come 10. to the Court with clean hands? OPP Relief.
11.8. The parties were called upon to produce the evidence and the plaintiff examined Manjeet Singh her Power of Attorney (PW-1), Sheela Devi (PW-2) and Som Nath (PW-3). The defendant examined ::: Downloaded on - 26/06/2024 20:32:48 :::CIS 6 himself (DW-1), Mahender Singh (DW-2), Sadhu Ram (DW-3), Avtar Singh (DW-4), HC Pawan Kumar (DW-5) and Bashir Khan (DW-6).
.
9. The learned Trial Court held that the plaintiff was recorded to be the owner of the suit land. The testimonies of the plaintiff and her witnesses were consistent. The version of the defendant that he had become the owner by way of adverse possession was not established. The photographs differed from each other. The record of the water and electricity connections was not connected to the suit land. The possibility of the house existing on a different land could not be ruled out. In any case, the plea of adverse possession can be used only as a shield and not as a sword. No declaration can be granted based on such a plea. Hence, the learned Trial Court answered issues No.2 to 7 in the negative, rest of the issues in the affirmative, decreed the suit and dismissed the counterclaim.
10. Being aggrieved from the judgment and decree passed by the learned Trial Court, the plaintiff filed two separate appeals, which were decided by the learned Additional District Judge, Nalagarh, District Solan (learned First Appellate Court). The learned First Appellate Court concurred with the findings recorded by the learned Trial Court that there was no evidence to show that the defendant had ::: Downloaded on - 26/06/2024 20:32:48 :::CIS 7 raised construction over the suit land. The record of the electricity and water connection did not mention any Khasra number to connect .
it to the suit land. The defendant failed to prove the day when he came in possession and how he had asserted his hostile title to the denial of the title of the real owners. The revenue record showed the plaintiff to be an owner in possession of the suit land, which carried with it a presumption of truth. The defendant failed to rebut this presumption; therefore, the appeal was dismissed.
11. Feeling aggrieved and dissatisfied with the judgments and decrees passed by the learned Courts below, the defendant filed the present appeals. The following questions of law are proposed:-
1. Whether both the learned Courts below have misread and mis-
appreciated the pleadings of the parties, as also the evidence on record, both oral and documentary and whether on account of such mis-reading and mis-appreciation, the findings of both the Courts below are vitiated and deserve to be quashed and set aside?
2. Whether in view of the law laid down in the case of Ravinder Kaur Grewal Vs. Manjeet Kaur by the Apex Court with respect to the plaintiff seeking declaration of having become the owner by way of adverse possession could be validly raised by the defendant/appellant and whether denial of the relief qua such declaration by the Courts below is sustainable in law?
3. Whether, on the ingredients of adverse possession having been pleaded and proved, the defendant/appellant was entitled to the relief of declaration of becoming the owner by way of efflux of time and whether the findings to the contrary are not sustainable in law.
::: Downloaded on - 26/06/2024 20:32:48 :::CIS 84. Whether the presumption raised under Section 45 of the Land Revenue Act to the revenue record having being rebutted, the said record could be considered for the purpose of declaration and determination of the rights and whether the Courts below .
on this account have erred and as such the findings are not sustainable in law?
5. Whether in a boundary dispute with respect to the identity of the land, it was apt and proper for the learned Courts below to have suo-moto called for demarcation or appointed a Court Local Commissioner as envisaged under the provision of Order 26 Rule 9 of the CPC and whether on failure to do so, the findings are not sustainable in law?
6. Whether on the pleadings and proof of establishing the existence of residence and construction on the suit land since the past more than 18 years having being established by the defendant/appellant, the suit for permanent prohibitory injunction where the plaintiff/respondent was not in possession was maintainable and whether such relief of injunction could have been granted by the learned Courts below and whether such findings are unsustainable in law?
12. I have heard Mr. Sanjeev Kuthiala, learned Senior counsel assisted by Mr. Abhishek learned counsel, for the appellant(s) in both the appeals and Ms. Devyani Sharma, learned Senior counsel counsel assisted by Mr. Shivam Sharma, learned counsel for respondent(s) in both the appeals.
13. Mr. Sanjeev Kuthiala, learned Senior counsel submitted that the learned Courts below erred in decreeing the suit of the plaintiff and dismissing the counterclaim so preferred by the defendant. The plaintiff admitted in her cross-examination that ::: Downloaded on - 26/06/2024 20:32:48 :::CIS 9 thatched-roof residential houses existed on the suit land. She has not provided any explanation for them. Hence, the version of the .
defendant should have been accepted. The learned Courts below failed to apply the law correctly, which led to the error in the judgments. It was wrongly held that the Civil Court had no jurisdiction to grant a declaration based on the plea of adverse possession, therefore, he prayed that the present appeals be admitted on the proposed substantial questions of law.
14. Ms. Devyani Sharma, learned Senior counsel supported the judgments and decrees passed by the learned Courts below and submitted that no interference is required with the same.
15. I have given considerable thought to the submissions at the bar and have gone through the records carefully.
16. The defendant took the plea of adverse possession. The essentials of the plea of adverse possession were explained by the Hon'ble Supreme Court in M. Radheshyamlal v. V. Sandhya, 2024 SCC OnLine SC 318 as under:-
10. As far as the plea of adverse possession is concerned, a Constitution Bench of this Court in the case of M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das(2020) 1 SCC 1, in paragraphs 1142 and 1143 has held thus:
"1142. A plea of adverse possession is founded on the acceptance that ownership of the property vests in another ::: Downloaded on - 26/06/2024 20:32:48 :::CIS 10 against whom the claimant asserts a possession adverse to the title of the other. Possession is adverse in the sense that it is contrary to the acknowledged title in the other person against whom it is claimed. Evidently, therefore, the .
plaintiffs in Suit No. 4 ought to be cognizant of the fact that any claim of adverse possession against the Hindus or the temple would amount to an acceptance of a title in the latter. Dr Dhavan has submitted that this plea is a subsidiary or alternate plea upon which it is not necessary for the plaintiffs to stand in the event that their main plea on title is held to be established on the evidence. It becomes then necessary to assess as to whether the claim of adverse possession has been established.
1143. 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 necprecario. To substantiate a plea of adverse possession, the character of the possession must be adequate in continuity and 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. Evidence, it is well settled, can only be adduced with reference to matters which are pleaded in a civil suit and in the absence of an adequate pleading, evidence by itself cannot supply the deficiency of a pleaded case. Reading Para 11(a), it becomes evident that beyond stating that the Muslims have been in long, exclusive and continuous possession beginning from the time when the Mosque was built and until it was desecrated, no factual basis has been furnished. This is not merely a matter of details or evidence. A plea of adverse possession seeks to defeat the rights of the true owner and the law is not readily accepting of such a case unless a clear and cogent basis has been made out in the pleadings and established in the evidence."(Emphasis supplied) ::: Downloaded on - 26/06/2024 20:32:48 :::CIS 11
11. In the case of Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779, in paragraph 11, this Court has laid down the law regarding the plea of adverse possession. Paragraph 11 reads thus:
.
"11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, necprecario", 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 true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina [AIR 1964 SC 1254], Parsinni v. Sukhi [(1993) 4 SCC 375] and D.N. Venkatarayappa v. State of Karnataka [(1997) 7 SCC 567].) The physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted for in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse ::: Downloaded on - 26/06/2024 20:32:48 :::CIS 12 possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma [(1996) 8 SCC 128]"(Emphasis supplied)
12. Therefore, to prove the plea of adverse possession: --
.
(a) The plaintiff must plead and prove that he was claiming possession adverse to the true owner;
(b) The plaintiff must plead and establish that the factum of his long and continuous possession was known to the true owner;
(c) The plaintiff must also plead and establish when he came into possession; and
(d) The plaintiff must establish that his possession was open and undisturbed.
13. It is a settled law that by pleading adverse possession, a party seeks to defeat the rights of the true owner, and therefore, there is no equity in his favour. After all, the plea is based on continuous wrongful possession for a period of more than 12 years. Therefore, the facts constituting the ingredients of adverse possession must be pleaded and proved by the plaintiff.
17. It was laid down by this Court in Nek Ram vs. Surjan Singh2019(4) Civil Court Cases 834 that a person pleading adverse possession acknowledges the title of the real owner. It was observed:
10. At the outset, it needs to be observed that there was really no need to recast issue No. l as reproduced above. Since the defendant had pleaded that he had become owner by adverse possession, implicit in the said defence was the existence of the ownership of the plaintiff over the disputed property.
11. In P.Periasami (dead) by LRs vs. P. Periathambi and others (1995) 6 SCC 523, the Hon'ble Supreme Court ruled that "whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property".::: Downloaded on - 26/06/2024 20:32:48 :::CIS 13
18. Therefore, the only question to be determined was whether the defendant had succeeded in establishing the plea of .
adverse possession or not because if he failed to do so, claiming the ownership of the suit land amounted to sufficient interference justifying the issuance of the injunction.
19. It was held in Uttam Chand v. Nathu Ram, (2020) 11 SCC 263: 2020 SCC OnLine SC 37 that a person claiming adverse possession observed:
r to has to claim the title in denial of the title of true owner. It was
11. In T. Anjanappa [T. Anjanappa v. Somalingappa, (2006) 7 SCC 570], this Court has set aside the finding of the High Court that the defendants claiming adverse possession do not have to prove who is the true owner. If the defendants are not sure who the true owner is, the question of them being in hostile possession as well as of denying the title of the true owner does not arise. The Court held as under: (SCC pp. 574-75, paras 12-
14) "12. The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. The principle of law is 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 denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against the ::: Downloaded on - 26/06/2024 20:32:48 :::CIS 14 right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property.
13. Possession to be adverse must be possession by a person .
who does not acknowledge the other's rights but denies them:
'24. It is a matter of fundamental principle of law that where possession can be referred to as a lawful title, it will not be considered to be adverse. It is on the basis of this principle that it has been laid down that since the possession of one co-owner can be referred to his status as co-owner, it cannot be considered adverse to other co-owners.' (See Vidya Devi v. Prem Prakash [Vidya Devi v. Prem Prakash, (1995) 4 SCC 496] , SCC p. 504, para
24.)
14. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to be adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful owner's title e.g. trustees, guardians, bailiffs or agents. Such persons cannot set up adverse possession:
'14. ... Adverse possession means a [hostile possession] which is expressly or impliedly in denial of title of the true owner. Under Article 65 [of the Limitation Act] burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a 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 of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was ::: Downloaded on - 26/06/2024 20:32:48 :::CIS 15 hostile to the real owner and amounted to a denial of his title to the property claimed.
15. Where possession can be referred to as a lawful title, it will not be considered to be adverse. The reason being .
that a person whose possession can be referred 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.
(See AnnasahebBapusaheb Patil v. Balwant [AnnasahebBapusaheb Patil v. Balwant, (1995) 2 SCC 543] , SCC p. 554, paras 14-15.)'"
12. In Kurella Naga Druva Vudaya Bhaskara Rao [Kurella Naga Druva Vudaya Bhaskara Rao v. Galla Jani Kamma, (2008) 15 SCC 150], the payment of tax receipts and mere possession for some years was found insufficient to claim adverse possession. It was held that if according to the defendant, the plaintiff was not the true owner, his possession hostile to the plaintiff's title would not be sufficient. The Court held as under: (SCC p. 158, para 19) "19. The defendant claimed that he had perfected his title by adverse possession by being in open, continuous and hostile possession of the suit property from 1957. He also produced some tax receipts showing that he has paid the taxes in regard to the suit land. Some tax receipts also showed that he paid the tax on behalf of someone else. After considering the oral and documentary evidence, both courts have entered a concurrent finding that the defendant did not establish adverse possession and that mere possession for some years was not sufficient to claim adverse possession, unless such possession was hostile possession, denying the title of the true owner. The courts have pointed out that if according to the defendant, the plaintiff was not the true owner, his possession hostile to the plaintiff's title will not ::: Downloaded on - 26/06/2024 20:32:48 :::CIS 16 be sufficient and he had to show that his possession was also hostile to the title and possession of the true owner. After detailed analysis of the oral and documentary evidence, the trial court and the High Court also held .
[Kurella Naga Druva Vudaya Bhaskara Rao v. Galla Janikamma, 2006 SCC OnLine AP 842 : (2009) 3 ALD 416] that the appellant was only managing the properties on behalf of the plaintiff and his occupation was not hostile possession."
13. In Brijesh Kumar v. Shardabai [Brijesh Kumar v. Shardabai, (2019) 9 SCC 369 : (2019) 4 SCC (Civ) 509], the Court held as under: (SCC p. 374, para 13) "13. Adverse possession is a hostile possession by the assertion of a hostile title in denial of the title of the true owner as held in M. Venkatesh [M. Venkatesh v. BDA, (2015) 17 SCC 1 : (2017) 5 SCC (Civ) 387] . The respondent had failed to establish peaceful, open and continuous possession demonstrating a wrongful ouster of the rightful owner. It thus involved questions of facts and law. The onus lay on the respondent to establish when and how he came into possession, the nature of his possession, the factum of possession known and hostile to the other parties, and continuous possession over 12 years which was open and undisturbed. The respondent was seeking to deny the rights of the true owner. The onus therefore lay upon the respondent to establish possession as a fact coupled with that it was open, hostile and continuous to the knowledge of the true owner. The respondent-plaintiff failed to discharge the onus. Reference may also be made to Chatti Konati Rao v. Palle Venkata Subba Rao [Chatti Konati Rao v. Palle Venkata Subba Rao, (2010) 14 SCC 316 : (2012) 1 SCC (Civ) 452], on adverse possession observing as follows: (SCC p. 322, para 15) '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 ::: Downloaded on - 26/06/2024 20:32:48 :::CIS 17 possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed. A person pleading adverse possession has .
no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. The plea of adverse possession is not a pure question of law but a blended one of fact and law.' "
14. As to whether the plaintiff can claim the title on the basis of adverse possession, this Court in a judgment Ravinder Kaur Grewal v. Manjit Kaur [Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729: (2019) 4 SCC (Civ) 453] has held as under: (SCC p. 777, para 60) "60. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and necprecario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. A trespasser's long possession is not synonymous with adverse possession. The trespasser's possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. The possessor looks after the property, protects it and in the case of agricultural property by and large, the concept is that the actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession."
::: Downloaded on - 26/06/2024 20:32:48 :::CIS 1815. The matter has been examined by a Constitution Bench in M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das [M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das, (2020) 1 SCC 1] wherein, it has been held that a plea of adverse .
possession is founded on the acceptance that ownership of the property vests in another, against whom the claimant asserts possession adverse to the title of the other. The Court held as under: (SCC pp. 703-706, paras 1142-1143 & 1147-1150) "1142. A plea of adverse possession is founded on the acceptance that ownership of the property vests in another against whom the claimant asserts a possession adverse to the title of the other. Possession is adverse in the sense that it is contrary to the acknowledged title in the other person against whom it is claimed. Evidently, therefore, the plaintiffs in Suit 4 ought to be cognizant of the fact that any claim of adverse possession against the Hindus or the temple would amount to an acceptance of a title in the latter. Dr Dhavan has submitted that this plea is a subsidiary or alternate plea upon which it is not necessary for the plaintiffs to stand in the event that their main plea on the title is held to be established on the evidence. It becomes then necessary to assess as to whether the claim of adverse possession has been established.
1143. 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 necprecario. To substantiate a plea of adverse possession, the character of the possession must be adequate in continuity and 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. Evidence, it is well settled, can only be adduced with reference to matters which are pleaded in a civil suit and in the absence of an adequate pleading, evidence by itself cannot supply the deficiency of a pleaded case. Reading Para 11(a), it becomes evident that beyond stating that the Muslims have been in long, ::: Downloaded on - 26/06/2024 20:32:48 :::CIS 19 exclusive and continuous possession beginning from the time when the Mosque was built and until it was desecrated, no factual basis has been furnished. This is not merely a matter of details or evidence. A plea of adverse possession .
seeks to defeat the rights of the true owner and the law is not readily accepting of such a case unless a clear and cogent basis has been made out in the pleadings and established in the evidence.
*** 1147. In Supt. & Remembrancer of Legal Affairs v. Anil Kumar Bhunja [Supt. & Remembrancer of Legal Affairs v. Anil Kumar Bhunja, (1979) 4 SCC 274: 1979 SCC (Cri) 1038], R.S. Sarkaria, J. speaking for a three-Judge Bench of this Court noted that the concept of possession is "polymorphous" embodying both a right (the right to enjoy) and a fact (the real intention). The learned Judge held: (SCC p. 278, para 13) '13. ... It is impossible to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the contexts of all statutes. Dias and Hughes in their book on Jurisprudence say that if a topic ever suffered from too much theorising it is that of "possession". Much of this difficulty and confusion is (as pointed out in Salmond's Jurisprudence, 12th Edn., 1966) caused by the fact that possession is not purely a legal concept. "Possession", implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention. It involves the power of control and intent to control. (See Dias and Hughes, ibid.)' These observations were made in the context of possession in Section 29(b) of the Arms Act, 1959.
1148. In P. Lakshmi Reddy v. L. Lakshmi Reddy [P. Lakshmi Reddy v. L. Lakshmi Reddy, 1957 SCR 195: AIR 1957 SC 314], Jagannadhadas, J. speaking for a three-judge Bench of this Court dwelt on the "classical requirement" of adverse possession: (AIR pp. 317-18, para 4) '4. Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec clam necprecario.
::: Downloaded on - 26/06/2024 20:32:48 :::CIS 20(See Secy. of State for India in Council v. Debendra Lal Khan [Secy. of State for India in Council v. Debendra Lal Khan, 1933 SCC OnLine PC 65 : (1933-34) 61 IA 78] IA at p.
82.) The possession required must be adequate in .
continuity, in publicity and in extent to show that it is possession adverse to the competitor.' The Court cited the following extract from U.N. Mitra's Tagore Law Lectures on the Law of Limitation and Prescription: (AIR p. 319, para 7) '7. ... "An adverse holding is an actual and exclusive appropriation of land commenced and continued under a claim of right, either under an openly avowed claim or under a constructive claim (arising from the acts and circumstances attending the appropriation), to hold the land against him (sic) who was in possession. (Angell, Sections 390 and 398). It is the intention to claim adversely accompanied by such an invasion of the rights of the opposite party as gives him a cause of action which constitutes adverse possession." ' [ 6th Edn., Vol. I, Lecture VI, at p. 159] This Court held: (AIR p. 319, para 7) '7. ... Consonant with this principle the commencement of adverse possession, in favour of a person implies that the person is in actual possession, at the time, with a notorious hostile claim of exclusive title, to repel which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until he obtains actual possession with the requisite animus.' 1149. In Karnataka Board of Wakf v. Union of India [Karnataka Board of Wakf v. Union of India, (2004) 10 SCC 779], S. Rajendra Babu, J. speaking for a two-Judge Bench held that:
(SCC p. 785, para 11) '11. ... Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner ::: Downloaded on - 26/06/2024 20:32:48 :::CIS 21 are the most important factors that are to be accounted for in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should .
show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed.' The ingredients must be set up in the pleadings and proved in evidence. There can be no proof sans pleadings and pleadings without evidence will not establish a case in law.
1150. In Annakili v. A. Vedanayagam [Annakili v. A. Vedanayagam, (2007) 14 SCC 308], this Court emphasised that mere possession of land would not ripen into a possessory title. The possessor must have animus possidendi and hold the land adverse to the title of the true owner. Moreover, he must continue in that capacity for the period prescribed under the Limitation Act."(emphasis in original)
20. The defendant stated in the written statement and the counterclaim that the plaintiff purchased the subject matter of the counterclaim from its previous owner on 27.12.1989. He admitted in his cross-examination that Sheela Devi had purchased the suit land for ₹4000/- from Magghi Ram. He volunteered to say that he had also paid ₹2000/-. He denied that the whole of the land was purchased for ₹40,000/-. He volunteered to say that it was purchased for ₹22,000/-.::: Downloaded on - 26/06/2024 20:32:48 :::CIS 22
21. The plea taken by the defendant in the cross-examination shows that the defendant claims to be co-owner of the suit land as he .
had also contributed the money for the purchase of the suit land. This destroys his plea of adverse possession because a person cannot have an animus to possess the land as owner as well as in denial of the title of the real owner.
22. It was laid down by this Court in SushimaKishandev Kaushal v. Council for Tibetan Education, 2006 SCC OnLine HP 15: AIR 2006 HP 122 that a person possessing property under the belief that he was the owner does not possess it in denial of the title of the true owner and cannot acquire the title by way of 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,the 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 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 AnnasahebBapusaheb Patil v. Balwant alias BalasahebBabusaheb Patel etc. and four connected matters, (AIR 1995 SC 895) has held that a person, who ::: Downloaded on - 26/06/2024 20:32:48 :::CIS 23 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. It has further been held that in deciding whether the acts .
alleged by a 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.
23. Similar is the judgment in Narasamma v. A. Krishnappa, (2020) 15 SCC 218: 2020 SCC OnLine SC 672 wherein it was observed:
32. The question which confronts us is not the aforesaid, but whether simultaneously a plea can be taken of title and adverse possession i.e. whether it would amount to taking contradictory pleas. In this behalf, we may refer to the four judgments cited by the learned counsel for the respondent herein, which succinctly set forth the legal position.
33. In Karnataka Board of Wakf case [Karnataka Board of Wakf v. Union of India, (2004) 10 SCC 779, para 11], it has been clearly set out that a plaintiff filing a title over the property must specifically plead it. When such a plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property. In that context, it was observed in para 12 that "... The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced."
34. The aforesaid judgment in turn relied upon the judgment in Mohan Lal [Mohan Lal v. Mirza Abdul Gaffar, (1996) 1 SCC 639], which observed in para 4 as under: (SCC pp. 640-41) "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, necprecario. Since the appellant's claim is founded on ::: Downloaded on - 26/06/2024 20:32:48 :::CIS 24 Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully 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."
35. In order to establish adverse possession an inquiry is required to be made into the starting point of such adverse possession and, thus, when the recorded owner got dispossessed would be crucial.
[P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59]
36. In the facts of the present case, this fact has not at all been proved. The possession of Smt Narasamma, the wife of the defendant, is stated to be on account of consideration paid. Assuming that the transaction did not fructify into a sale deed for whatever reason, still the date when such possession becomes adverse would have to be set out. Thus, the plea of adverse possession is lacking in all material particulars.
37. The possession has to be in public and to the knowledge of the true owner as adverse, and this is necessary as a plea of adverse possession seeks to defeat the rights of the true owner. Thus, the law would not be readily accepting of such a case unless a clear and cogent basis has been made out [M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das, (2020) 1 SCC 1].
38. We may also note another judicial pronouncement in Ram Nagina Rai v. Deo Kumar Rai [Ram Nagina Rai v. Deo Kumar Rai, (2019) 13 SCC 324 : (2018) 5 SCC (Civ) 722] dealing with a similar factual matrix i.e. where there is permissive possession given by the owner and the defendant claims that the same had become adverse. It was held that it has to be specifically pleaded and proved as to when possession becomes adverse in order for the real owner to lose title 12 years hence from that time.
39. The legal position, thus, stands as evolved against the appellants herein in advancing a plea of title and adverse possession simultaneously and from the same date.
24. Both the learned Courts below held that the defendant had failed to prove the land over which he had raised the construction.
The revenue record shows the plaintiff to be the co-owner in ::: Downloaded on - 26/06/2024 20:32:48 :::CIS 25 possession of the suit land. The entry in the Jamabandi carries with it a presumption of correctness and the burden was upon the defendant .
to lead satisfactory evidence to rebut this presumption.
25. The defendant examined Mahender Singh (DW-2), who visited the spot and prepared a Tatima (Ext. DW-2/B). He stated in his proof affidavit (Ext.DW-2/A) that Sheela Devi was the owner but defendant Pohu Lal was in possession. He stated in his cross-
examination that he had mentioned Sheela Devi as the owner in the Tatima and he had not associated her, as she was not present on the spot. He admitted that he had prepared the spot map at the instance of Pohu Lal @ Rangi and he had also mentioned his name.
26. This witness has nowhere stated that he had carried out any demarcation before preparing the Tatima, therefore, this document is not sufficient to show that the defendant had constructed the house over the suit land. Further, he has shown the bathroom, toilet, water tank, staircase, cowshed and hut on different sides of the land. The defendant claimed in his proof affidavit (Ext.
DW-1/A), that he has constructed a residential house, cow sheds, Chaan and Courtyard. Thus, there is a difference between the description given by the plaintiff in his statement and the description given by this witness.
::: Downloaded on - 26/06/2024 20:32:48 :::CIS 2627. The plaintiff also relied upon the photographs. The learned Courts below had rightly pointed out that the photographs do .
not appear to be of the same place because in two photographs a Pucca structure was shown whereas in other photographs a thatched structure was shown.
28. Reliance was placed upon the electricity and water connections and the bills; however, these documents do not show the
29.
r to Khasra number over which the house was constructed and the learned Courts below had rightly refused to rely upon them.
The defendant stated in his pleadings that the house existing on the adjacent land was demolished after which he raised construction on the suit land. Therefore, it was admitted that construction was earlier raised on the land adjacent to the suit land, therefore, there was a burden upon the defendant to show by satisfactory evidence that he had raised construction on the suit land.
Both the learned Courts below have concurrently held that there was no satisfactory proof of this fact. This is a pure finding of fact, which could be recorded based on the evidence led before the learned Trial Court and this Court cannot interfere with the same while exercising the jurisdiction under Section 100 of CPC.
::: Downloaded on - 26/06/2024 20:32:48 :::CIS 2730. Sheela Devi denied in her cross-examination that the residential house and Chaan existed on the suit land. She volunteered .
to say that she had constructed a Chaan, which was sold by her. It was submitted that this fact was not pleaded by her in her pleadings and cannot be looked into. This submission cannot be accepted. Firstly, this question was asked in the cross-examination and was not required to be pleaded. Secondly, the plaintiff is required to plead the fact and not the evidence by which the fact is to be proved. The fact is that the plaintiff is in possession and the evidence is that possession is manifested by the construction raised on the land. Since only the fact was to be pleaded not the evidence, therefore, there was no requirement of pleading that the plaintiff had constructed a Chaan on the suit land.
31. It was submitted that the land should have been demarcated as it was a boundary dispute. This is not acceptable. The defendant had claimed adverse possession of the suit land. It was laid 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 plaintiff is admitted by taking the plea of adverse possession, the argument that property is not identifiable falls to the ground. It was observed:
::: Downloaded on - 26/06/2024 20:32:48 :::CIS 28"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 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 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 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."
32. 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.
::: Downloaded on - 26/06/2024 20:32:48 :::CIS 2933. Therefore, there is no misreading or misinterpretation of the pleadings of the parties. The relief was denied because defendant .
had failed to prove the adverse possession and not because such a declaration could not be granted. There was insufficient evidence to rebut the presumption under Section 45 of the Land Revenue Act.
There was no question of demarcation of the suit land or appointment of the Local Commissioner because of plea of adverse possession taken by the defendant. Since both the learned Courts below have concurrently held that the defendant had failed to prove his plea of adverse possession or even the possession over the suit land; therefore, they had rightly granted the relief of injunction.
34. In view of the above, the present appeals do not disclose any substantial questions of law; therefore, the present appeals fail and the same are dismissed. The record of the learned Courts below be returned forthwith.
35. Pending application(s), if any, also stand(s) disposed of.
(Rakesh Kainthla) Judge 26th June, 2024 (ravinder) ::: Downloaded on - 26/06/2024 20:32:48 :::CIS