Himachal Pradesh High Court
Nek Ram vs Surjan Singh on 25 July, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
R.S.A. No. 439 of 2006 Reserved on: 17.7.2019.
Date of decision: 25.7.2019.
Nek Ram ....Appellant/Plaintiff.
Versus
Surjan Singh ....Respondent/Defendant
Coram r to
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 No For the Appellant : Mr. Romesh Verma, Advocate.
For the Respondent : Mr. Rajnish K. Lal, Advocate.
Tarlok Singh Chauhan, Judge The appellant is the plaintiff, who after having lost before both the learned Courts below have filed the instant Regular Second Appeal.
The parties shall be referred to as the 'plaintiff and the 'defendant'.
2. Brief facts of the case as set out in the plaint are that the plaintiff claimed to be owner of land bearing Khasra No. 74/17 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 29/09/2019 01:15:52 :::HCHP 2 measuring 1-6 bighas out of which he had exchanged 8 biswas of land with Chet Ram and therefore was in possession of 18 biswas .
of land. It was averred that the defendant alleged to have purchased two biswas of land of khasra No. 135/77 in the year 1985 and having raised construction on it and also on the land of the plaintiff to the extent of 4 biswas by encroaching over it during the life time of Palkia predecessor of the plaintiff. It was averred that the defendant agreed to give his land in exchange but failed to fulfill the promise. It was further averred that the plaintiff also obtained demarcation which had shown encroachment of 4 biswas of land and therefore, he filed a suit for possession.
3. The defendant resisted the claim of the plaintiff by alleging that Khasra No. 74/17 did not exist in the revenue record as out of this khasra number which was measuring 3.7 bighas, the land measuring 1.19 bighas was acquired by the State Government and remaining land measuring 1.8 bighas was divided into three khasra numbers, 17/2 measuring 9 biswas, 17/4 measuring 15 biswas, 17/3 measuring 4 biswas, out of which Jankia Ram purchased two biswas denoted by Khasra No. 17/2/1 vide mutation No. 34 which was purchased by the defendant in December, 1982, through an oral agreement, the sale deed of ::: Downloaded on - 29/09/2019 01:15:52 :::HCHP 3 which was effected in 1984. The defendant denied factum of exchange of land by the plaintiff with Chet Ram and claimed to .
be in possession of the suit land from the time of his predecessor since 1973 and having become its owner by adverse possession and in the alternative he offered to pay Rs.1000/- per biswa for the land.
4. From the pleadings of the parties, the learned trial Court on 29.3.1996, framed the following issues:
1. Whether the defendant has encroached upon 4 biswas of plaintiff's land? OPP
2. Whether the suit is not maintainable? OPD
3. Whether the plaintiff has no cause of action? OPD
4. Whether the defendant has become owner by way of adverse possession ?OPD
5. Relief.
5. After recording the evidence and evaluating the same, the learned trial Court dismissed the suit of the plaintiff, constraining the plaintiff to file an appeal before the first appellate Court. The said appeal was allowed vide judgment dated 18.8.2003 and the judgment and decree of the trial Court was set-aside and after recasting issue No.1, the case was remanded to the trial Court for decision afresh after affording ::: Downloaded on - 29/09/2019 01:15:52 :::HCHP 4 opportunity to the parties to lead evidence afresh on issue No.1 as recast by the Court, which reads as under:
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"1. Whether the plaintiff is the owner of the suit land as claimed and the defendant has encroached upon the land of the plaintiff, if so to what extent?"
6. However, this judgment was challenged before this Court and vide order dated 15.3.2003 the order passed by the first Appellate Court ordering the wholesale remand was set-aside with a direction to the first Appellate Court to call for the report from the trial Court on the recast issue.
7. The learned trial Court vide its order dated 30.9.2005 returned the findings on recast issue No.1 against the plaintiff and submitted the findings to the Court. Thereafter, the first appellate Court again dismissed the appeal filed by the plaintiff vide its judgment and decree dated 21.6.2006 constraining the plaintiff to file the present appeal.
8. On 30.5.2007, the appeal was admitted on the following substantial questions of law:
1. Whether the learned District Judge has failed to consider statement of PW-11 Bishambar Nath, Naib Tehsildar and demarcation report Ex.PW-11/L therefore findings are liable to be set-aside?::: Downloaded on - 29/09/2019 01:15:52 :::HCHP 5
2. Whether suit having been filed for possession on the basis of demarcation carried out in 1992 before filing of suit and encroachment was found out by PW-9 Jeet .
Singh, Kanungo vide Ex.PW-8/A, PW-9/A, Ex.PW-9/B and in view of subsequent demarcation as carried out by Sh. Bishambar Nath, Naib Tehsildar Ex.PW-11/L the claim stands proved by the plaintiff and these documents have wrongly been disbelieved by the trial Court.
3. Whether in order to determine point of controversy, the orders were required to be passed for appointment of Local Commissioner to carry out the demarcation and report to the extent of the encroachment whatsoever may be found to have been made on the spot.
4. Whether appellant having brought on record the demarcation report and Tatima Exhibit PW-8/A and part of the court below to appoint Local Commissioner as required under the High Court Rules and Orders and the law as laid down by this Hon'ble Court in AIR 2003 H.P. 87 and 2000 (1) S.L.J, 431.
I have heard learned counsel for the parties and have gone through the records of the case carefully.
9. Since all the substantial questions of law are intrinsically interlinked and interconnected, therefore, they were taken up together for consideration and are being disposed of by a common reasoning.
::: Downloaded on - 29/09/2019 01:15:52 :::HCHP 610. At the outset, it needs to be observed that there was .
really no need to recast issue No.1 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".
12. It would be noticed that both the learned Courts below have dismissed the suit/appeal of the plaintiff mainly on the ground that the plaintiff failed to prove the extent of encroachment made by the defendant over his land.
Unfortunately, both the learned Courts below have fallen in error because the question that the plaintiff having not established the identity of the suit land or the further question that the property cannot be identified, is not borne out from the record.
13. The defendant had raised a plea of adverse possession. Once a plea of adverse possession is raised, it pre-
::: Downloaded on - 29/09/2019 01:15:52 :::HCHP 7supposes the title over the suit land of the plaintiff. Once the title of the plaintiff is deemed to be admitted, the argument that the .
property is not identifiable falls to the ground.
14. In taking this view, I am supported by the judgment of the Punjab and Haryana High Court in Jagat Singh and others vs. Sri Kishan Dass 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, the argument that the property is not identifiable falls to be ground. Therefore, the argument raised by learned counsel for the appellants that infurctuous 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."
15. It would be noticed that the learned trial Court while answering issues No.1 and 4, came to the conclusion that the defendant had perfected his title by way of adverse possession.
However, the said findings have been set-aside by the learned ::: Downloaded on - 29/09/2019 01:15:52 :::HCHP 8 first Appellate Court as would be evident from the following observations contained in para-12 of the judgment:
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".....Therefore, possibility of Jankia in possession of the land in his own right cannot be over ruled. However, at the same time, it cannot be said that the defendant has become its owner by adverse possession as the defendant himself purchased the land in 1984 and even he had come into possession of the land in 1982 still period was short by 2 years from the statutory period of 12 years necessary for acquisition of title by adverse possession. It is settled principle of law that for completion of period of 12 years a trespasser can avail of the adverse possession of any person or persons through he claims but not adverse possession of an independent trespasser. Therefore, even if Jankia was in possession of the land which belonged to the plaintiff his period of possession could not be tacked with the possession of the defendant as Jankia Ram in that event would have been also a trespasser as such defendant could not acquire title over the land of the appellant by adverse possession...."
16. Admittedly, the findings have attained finality as the defendant/respondent has not assailed the same by way of separate appeal or by way of cross-objections.
17. The plea of adverse possession is a double edged sword. Any plea of adverse possession contains the admission that the opposite party is the owner of the property, but the said title of the opposite party has been extinguished because of ::: Downloaded on - 29/09/2019 01:15:52 :::HCHP 9 open, hostile possession with animus by the claimant for statutory period. By pleading adverse possession, a party admits .
the initial title of the opposite party which however is certain to have been established.
18. The law is well settled as would be evident from the judgment of the Hon'ble Supreme Court in Karnataka Board of Wakf vs. Government of India and others (2004) 10 SCC 779 wherein referring to the judgment of P. Periasami's case (supra) it was observed as under:
"11. In the eye of 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 true owner. It is a well- settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to 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 Sakinal AIR 1964 SC 1254, Parsinni v. Sukhi (1993) 4 SCC 375 and D N Venkatarayappa v. State of Karnataka (1997) 7 SCC 567).::: Downloaded on - 29/09/2019 01:15:52 :::HCHP 10
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 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 true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Dr. Mahesh Chand Sharma v. Raj Kumari Sharma (1996) 8 SCC 128).
12. A plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. (See: S M Karim v. Bibi Sakina AIR 1964 SC 1254).
In P Periasami v. P Periathambi (1995) 6 SCC 523 this 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." The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639 that is similar to the case in hand, this Court held: (SCC pp. 640-41, para 4) "4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must ::: Downloaded on - 29/09/2019 01:15:52 :::HCHP 11 disclaim his right there under 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 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 land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."
19. By pleading adverse possession very specifically in the written statement, the defendant admitted that the plaintiff had title to the suit land but the said title was extinguished by the defendant's hostile possession of the property. As regards the title being extinguished, the first appellate Court held against the defendant by claiming that the plea of adverse possession as raised by him had not been proved. In such circumstances, the conclusion drawn by the learned court below to the effect that the plaintiff is not the owner of the suit property is absolutely perverse and once it is so then obviously this Court is entitled to interfere with such findings. Therefore, in the given ::: Downloaded on - 29/09/2019 01:15:52 :::HCHP 12 circumstances, even if both the demarcation reports are ignored for the moment, even then, the same will have no effect on the .
title of the plaintiff.
20. Now, adverting to the findings rendered by the learned Courts below qua both the reports of the Local Commissioners. It would be noticed that both the learned Courts below have discarded the reports of the Local Commissioner which had been relied upon by the plaintiff, but then, the plea of the defendant was that he had become owner by way of adverse possession thereby admitting the title of the plaintiff and in such circumstances, it was for the defendant to have clearly proved the part of the property measuring 2 biswas which was legally owned by him and to have explicitly set out that part of the land/ property over which he claimed adverse possession and the learned Courts below could not have, by discarding the reports of the Local Commissioners, dismissed the suit of the plaintiff. Even if these reports were to be discarded and the Court felt that it was the case of boundary dispute, then it was incumbent upon them to have appointed a Local Commissioner to carry out the demarcation and to report the extent of encroachment that admittedly had been made over the suit land.
::: Downloaded on - 29/09/2019 01:15:52 :::HCHP 1321. The defendant having raised the plea of adverse possession and having failed to prove the same in itself was a .
sufficient ground to have decreed the suit of the plaintiff for possession of the suit land as he was lawful owner. The findings of the learned Courts below to say the least are totally perverse.
The substantial questions of law are answered accordingly.
22. In view of the aforesaid discussion, I find merit in this appeal and the same is allowed and the judgments and decrees passed by the learned courts below are set-aside and the suit of the plaintiff is decreed with costs. Pending application(s), if any, also stands disposed of.
25th July, 2019 (Tarlok Singh Chauhan)
(GR) Judge.
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