Punjab-Haryana High Court
Bhupinder Nath (D) By Lr And Anr. vs Surasti (D) By Lrs. on 23 November, 2004
Equivalent citations: AIR2005P&H222, AIR 2005 PUNJAB AND HARYANA 222, (2005) 2 LANDLR 62, (2005) 3 ICC 848, (2005) 2 RECCIVR 335
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. The dispute in this appeal pertains to land measuring 5 Kanals, 8 Marias bearing Khewat Nos. 20 and 21, Khataunl No. 31, Khasra No. 14R/7/4(5-8) situated in village Majra. Tehsil Anandpur Sahib. District Rupnagar, Surasti, the respondent in this appeal (hereinafter referred to as the "plaintiff") filed a suit for declaration and permanent Injunction against Bhupinder Nath and Kishorl Lal (hereinafter referred to "defendant-appellants"). The trial Court decreed the suit vide judgment and decree dated 11-12-1978. Appeal against the judgment and decree of the trial Court was dismissed by the Additional District Judge. Rupnagar on 1-10-1980.
2. In brief, the facts are that the plaintiff filed a suit seeking a declaratory decree against the defendant-appellants that she and her predecessors-in-interest are owners in possession of the land in dispute since 1935-36 and even earlier, the defendants or their predecessors-in-interest were never owners of the land in dispute and if at all, they are found to be so, their rights stood extinguished since long; the possession of the plaintiff and her predecessors-in-interest over the land in dispute remained continuous, uninterrupted and to the knowledge of the defendants, and their predecessors-in-interest had no right, title or interest over the land in dispute and she acquired the ownership right thereof by adverse possession. The plaintiff further pleaded that the defendants were out to dispossess her from the land in dispute and, thus, she prayed for a decree for permanent injunction restraining them from interfering in her possession and enjoyment regarding the land in dispute.
3. The defendants-appellants denied the allegations in the written statement of adverse possession of the plaintiff. It was specifically pleaded that neither the predecessors-in-interest of the plaintiff nor the plaintiff was in possession of the suit land. It was also pleaded that the defendants installed a tube-well and electric motor and constructed a building in the fields purchased from Rirku and had made improvements on the suit land by spending a huge amount of about Rs. 1500/- and that the defendants purchased the property from Rirku son of Dev Raj vide registered sale deed dated 23-4-1965 and since then, they had been in possession of the suit land as owners.
4. On the pleadings noticed above, the parties went to trial on the following issues:-
1. Whether plaintiff is the owner in possession of the suit land? OPP
2. Whether plaintiff is entitled to get the injunction prayed for? OPP
3. Whether defendants purchased the property in dispute from Rirku vide sale deed dated 23-4-65, if so, is effect? OPD
4. Whether Rirku was competent to sell the land in dispute? If not, its effect? OPD Additional issue framed by the trial Court on 21-2-1978 :-
5. Whether in the alternative the plaintiff has become the owner of the suit property by adverse possession? OPP
6. Relief.
5. The trial Court after appraising the evidence produced on record by the parties, recorded a finding that the predecessors-in-interest of the plaintiff had acquired ownership by adverse possession to Khasra No. 14R/7/4 as back as in 1952-53 and consequently held that the plaintiff had become owner of the suit property by adverse possession. The trial Court further found that the defendants purchased the suit land from Rirku vide sale deed dated 23-4-1965, but simultaneously also held that Rirku had no right or title to sell the suit property to the defendants because he had lost his rights by efflux of time. In view of the finding that the plaintiff had become owner of the suit property and continued in its possession, she was also entitled to the decree for permanent injunction as prayed for. The suit was consequently decreed for declaration holding that the plaintiff became owner of the suit property by adverse possession and also for permanent injunction, restraining the defendants from interfering in the possession and enjoyment of the plaintiff of the suit property comprised in Khasra No. 14R/ 7/4, by judgment and decree dated 11-12-1978. The first appellate Court by judgment and decree dated 1-10-1980 affirmed the findings recorded by the trial Court and consequently dismissed the appeal preferred by the defendants.
6. This is how the defendants have filed the present second appeal, challenging the judgment and decree passed by the Courts below.
7. Mr. M.S. Rakkar, Senior Counsel appearing for the appellants submitted that this appeal raises the following substantial questions of law :-
1) That the question of interpretation of documents Exhibits P-1 to P-13 and Exhibits D-2, D-12, D-13 and D-14 arises in this case.
ii) That the Courts below have recorded findings on no evidence.
iii) That the core issue as to whether nonpayment of rent does not prove adverse possession and that if a tenant stops paying rent, he does not cease to be a tenant, have not been adjudicated upon. It has also not been decided as to when, if at all, the possession became adverse."
8. Learned counsel for the appellants submitted that the findings recorded by both the Courts below that the plaintiffs had become owner by adverse possession are legally not sustainable. The counsel submitted that entries in revenue record do not show if she considered herself as owner because the word "Khud" is missing after the word "Malkiat" and if she considered herself as owner, the entries in this column of rent would have been 'Bila Lagan Ba Khial Malkiat Khud' and he further submitted that in the revenue record comprising Exhibits P-1 to P-13, Rirku is recorded as owner right from 115-16 till 162-63 and the appellants had purchased the property in dispute along with other land vide sale deed dated 23-4-1965, Exhibit D-1. A tube-well and electricity meter were installed in the same Khata. The revenue record shows the possession of Kirpu and Gurditta and it was thereafter that plaintiff-Surasti was shown in possession. The counsel further submitted that statements of the witnesses establish that firstly Rirku and after the sale, the appellants are recorded as owners of the land in dispute. The counsel further submitted that the length of possession on the basis that the tenant had ceased to pay rent shall not confer ownership by adverse possession and to establish adverse possession, one has o admit that the other party is owner and it was during that ownership, the possession became adverse which was open and hostile to the knowledge of the true owner. The plaintiff had not given the exact time or date on which the defendants had acquired knowledge of the hostile possession. No evidence has been produced by the plaintiff in that regard. Thus, the findings recorded by the Courts below that the plaintiff-respondent had become owner by adverse possession are legally not sustainable. The counsel in order to buttress his submissions, placed reliance on Ram Lal v. Chetu alias Chet Ram, ; Daulat Ram and Nepal Singh v. Payare Lal and Bhagwan Sahai, 175 Pun LJ 12, Regular First Appeal No. 221 of 179, Bachittar Singh v. Chand Kaur decided on 5-5-1980 and Joginder Pal alias Yoginder Pal v. Angad Singh, 1983 Pun LJ 14 and Kashi Ram v. Harbhajan Singh Bhajji, .
9. Controverting the submissions of the learned counsel for the appellants, Mr. H.K. Aurora, learned counsel appearing for the respondent-plaintiff submitted that entry in column No. 3 of the revenue record has to be read along with entry No. 9 wherein it has been mentioned as Billa Lagan Ba Khial Malkiat. The counsel relied upon the entries in the jamabandi. Exhibit P-9, for the year 1935-36 and submitted that the plaintiff-respondent had acquired adverse possession which is clear from the revenue record Exhibit P-16 for the year 1952-53 wherein similar entry was repeated which continued thereafter also. The counsel submitted that both the Courts have recorded a finding that the plaintiff had become owner by adverse possession and this finding of fact is not liable to challenge in this regular second appeal. Learned counsel for the respondent relied on Parsinni (Dead) by L.R.s v. Sukhi, 1993 (3) RRR 681 : 1993 AIR SCW 3606, Jagan Singh v. Chatin Kaur, 1985 RRR 280. Puran v. Kure, (1955) 57 Pun LR 57, Ram Karan v. The Financial Commissioner 1980 Pun LJ 295 and a judgment of Himachal Pradesh High Court in State of Himachal Pradesh v. Khazana Ram, 1999 (3) Civil CC 27 : 1999 AIHC 3629 to contend that long possession without payment of rent and possession being actual, exclusive and peaceful to the knowledge of the true owner shall fulfil the ingredients of constituting adverse possession. Learned counsel for the respondent thus submitted that no question of law, much less a substantial question of law arises in this appeal.
10. I have heard learned counsel for the parties and have given my thoughtful consideration to the rival submissions made by them.
11. The core question that arises for determination in the present appeal is whether the plaintiff had become owner of suit property by way of adverse possession or not.
12. The plaintiff while appearing as P.W. 2 before the trial Court had deposed that she is wife of Kirpu and after his death she succeeded him. In Exhibit P-4 which is jamabandi for the year 1956-57 it is shown that Gurditta son of Sidhu and Surasti wife of Kirpu are shown in possession of Khasra Nos. 693, 694 and 700. It is not denied that Smt. Surasti is the widow of Kirpu. There was consolidation in the village and Exhibit P-3 is copy of Khatuni Istemal which shows Khata No. 3 and Khatuni No. 11 of No. 693, 694 and 700 relating to total land measuring 6 kanals, 19 marlas, Exhibit P-2 is copy of Naksha Hakdarwar and Column No. 5 shows that the said land has been put in common hotch-potch and in lieu thereof, new land has been allotted in Khasra No. 14R/7/4 and, therefore, it shows that the suit property has been allotted in lieu of land bearing Khasra Nos. 693, 694 and 700. Exhibit P-8 is the jamabandi for the year 1915-16 in which column No. 3 regarding the possession of Gurditta and Kirpu sons of Sidhu has been shown as 'La Ilmi" (i.e. lack of knowledge or on account of ignorance). In the jamabandi Exhibit P-9 for the year 1935-36, the entry in Column No. 9 is "Billa Lagan Ba Khial Malkiat" (i.e. without rent considering to be the owner). This entry has been repeated in the year 1939-40 (Exhibit P-16) which records some other persons in possession under Gurditta and Kirpu. Exhibit P-17 is jamabandi for the year 1943-44 and Exhibit P-18 is the jamabandi for the year 1952-53 which also repeats the same entries. This revenue record shows that the possession of the predecessors-in-interest of the plaintiff which began in the year 1935-36 continued till the year 1952-53. Exhibit P-4 is jamabandi for the year 1956-57 which also shows that Gurditta and Surasti-plaintiff were in possession of these khasra numbers without payment of rent and considered themselves to be owners of these khasras. The new jamabandi Exhibit P-19 (Exhibit D-8) for the year 1962-63 also depicts the possession of Surasti over the suit property and she was not paying rent and was considering herself to be owner. These entries had been repeated in Jamabandi Exhibit P-20 (Exhibit D-1) for the year 1966-67 and also Exhibit P-5 (Exhibit D-12) i.e. jamabandi for the year 1971-72. This shows that possession of the plaintiff which she claims to be adverse continued even after consolidation.
13. The predecessors-in-interest to the plaintiff were paying no rent to the owner and in fact they considered themselves as owners. The entry "Billa Lagan Ba Khial Malkiat" is an entry representing adverse possession because it shows that the person in possession was not obliged to pay any rent because he considered himself as owner. Such an entry would amount to adverse possession conferring ownership rights on the predecessors-in-interest of the plaintiff. The absence of word 'Khud' will not make any difference when it is proved that the predecessors-in-interest. of the plaintiff were not paying any rent and they were not obliged to pay any rent because they considered themselves to be owners. Moreover, Exhibit P-8 shows that the predecessors-in-interest of the plaintiff were in possession of the suit property for the year ending 1915-16 and it is not known as to how and in what capacity they were in possession as entry in Column No. 9 of the jamabandi for the year 1915-16 is 'La Ilmi' (i.e. lack of knowledge or on account of ignorance). In fact, it nowhere shows that they were tenants in possession. Therefore, there was no bar in the year 1935-36 to claim themselves to be in adverse possession and based their claim with effect from 1935-36 as has been claimed in Para 1 of the plaint. In my considered opinion, when an entry shows that the rent was not being paid because they considered themselves as owners, that shall be sufficient proof of hostility and shall constitute adverse possession. The possession of predecessors-in-interest of the plaintiff had ripened into full ownership by adverse possession in the year 1952-53 by efflux of time.
14. The contention of the learned counsel for the appellants that documents Exhibit P-1 to P-13 and Exhibit D-2, D-12, D-13 and D14 have not been correctly interpreted by Courts below does not hold any ground. Though in revenue records, jamabandis Exhibit P-1 to P-13, Rirku has been recorded as owner but in Column No. 3, the possession is shown to be that of Gurditta and Kirpu sons of Sidhu or of the plaintiff-Surasti and in column No. 9 of jamabandi for the year 1915-16 (Exhibit P-8), it is shown as 'La Ilmi' (i.e. lack of knowledge), thereafter in jamabandi for the year 1935-36 (Exhibit P-9), the entry is 'Billa Lagan Ba Khial Malkiat' (i.e. payment of no rent considering to be owner). As observed earlier, the possession of plaintiff had ripened into full ownership by efflux of time. Therefore, the ownership of Rirku or subsequent sale by him to defendants vide sale deed dated 23-4-1965 (Exhibit D-1) shall not take away the legal ownership of plaintiff by way of adverse possession. In fact, at the time of execution of sale deed (Exhibit D-1), Rirku had lost legal title to the property in dispute. The claim regarding installation of tubewell and electricity meter as set up by the defendants on the land in dispute has not been established by the defendants. Any such concurrent findings of fact cannot be disturbed in this Regular Second Appeal. The defendants have claimed that they had purchased the suit property from Rirku and immediately thereafter they came into its possession. The defendants produced Exhibit D-2 an agreement between Daulat Ram and Jagdish Ram with the defendants. It is claimed that on this basis the possession of Surasti came to an end. Daulat Ram and Jagdish Ram could surrender possession of the land which was in their possession but they have not been able to show that they were in possession of the suit property. Exhibit D-2 does not show that it relates to suit property bearing Khasra No. 14R/7/4. Documents Exhibit D-13 and D-14 have been rightly not relied upon by the Courts below as in revenue records in the shape of jamabandis for these years, the possession is shown to be that of Surasti. Even Exhibit D-12 does not advance the case of the defendants. As noticed earlier, the documents or evidence shows that Surasti-plaintiff and her predecessors-in-interest were in possession without payment of rent claiming to be owners since 1935-36 or earlier and the same had thus fructified into full ownership by adverse possession by efflux of time. The plaintiff had never claimed herself to be tenants of the land in dispute and, therefore, the contention of the appellant that nonpayment of rent by the tenants shall not entitle the tenants to claim ownership by adverse possession shall not detain us for long. Learned counsel for the appellant has not been able to pin-point any error or misreading of evidence and has made efforts to persuade this Court to reappreciate the evidence so that the Court in appellate jurisdiction could arrive at a different conclusion than that arived at by the Courts below. That is not the scope of Regular Second Appeal. The High Court shall not reappreciate the evidence in its appellate jurisdiction in Regular Second Appeal unless there is misreading of evidence or an error apparent on the record. Such being not the position, the findings recorded by the Courts below cannot be disturbed.
15. Now, adverting to the case laws referred to by counsel for the appellants, it may be noticed that the Division Bench of this Court in Ram Lal's case, (supra), while dealing with the case where a person claiming ownership on the basis of adverse possession had entered into the premises as tenant but subsequently stopped paying rent, the Division Bench held as under :-
"(5) Adverse possession, as the words, imply, must be actual possession of another's land with intention to hold it and claim as his own. 1 must commence with the wrongful dispossession of the rightful owner at some particular time; it must commence in wrong and must be maintained against right. It must be actual, open, notorious, hostile, under claim of right, continuous and exclusive and maintained for the statutory period.
Indeed it should be so open, and exclusive to leave no doubt as to the intention of the occupant, so notorious that the owner may be presumed to have knowledge of the adverse claim and so continuous as to furnish a cause of action every day during the required period.
(6) If possession is permissive and not antagonistic to the owner, it cannot ripen into title by mere possession. Thus the possession of a tenant is that of his landlord and will be so presumed until the contrary is proved by clear and convincing evidence for every presumption is in favour of possession in subordination to the true owner.
Although possession of a tenant, however open and complete, does not of itself operate an ouster of the owner, the mere fact that a person enters as a tenant does not preclude him from acquiring title against his landlord by adverse possession. It operates as an ouster if he abandons the idea of holding as a tenant and sets up and asserts an exclusive right in himself. He must either give notice of his claim or his possession should be accompanied by some overt act-asserting an ownership of such an open, notorious and hostile character as not to be easily misunderstood.
The fact that a tenant continues to retain possession of the property after the expiry of the lease period and the fact that he fails or refuses to pay the rent are not sufficient to show that he holds adversely to the landlord unless he actually sets up an exclusive right in himself by some clear, positive and unequivocal act. Limitation begins to run when the possession of the tenant becomes adverse to that of the owner i.e. when the acts of the tenant are of a character as to show that he claims exclusive ownership and denies the rights of the owner. Mere declarations are not enough."
16. Following the above dictum, learned single Judge of this Court in RFA No. 221 of 1979 - Bachitar Singh v. Chand Kaur has held as under :-
"After giving my thoughtful consideration to the whole matter and the various entries in the revenue record referred to above, I do not find any substance in the submission of the learned counsel for the appellants. In order to establish their adverse possession on the land in question they have to conclusively prove that they entered into possession of this land with the intention to hold it as their own. Their possession should have commenced with the wrongful dispossession of the rightful owner and should have been actual, open, notorious, hostile, continuous and exclusive for the statutory period. In fact, as has been observed in Ramlal v. Chetu alias Chet Ram, , it should be so open and exclusive as to leave no doubt as to the intention of the occupant, so notorious that the owner may be presumed to have knowledge of the adverse claim and so continuous as to furnish a cause of action every day during the required period. This dictum, to my mind, be applicable with a greater rigour to a case as the present one where the possession of the appellants or their predecessors-in-interest began as tenants though with a denial of liability to pay rent. It was for the appellants to prove positively as to how and when they entered into possession of the suit land for the first time and whether that entry was in complete denial of the title of the rightful owner...."
17. In Joginder Pal alias Voginder Pal's case, (1983 Pun LJ 14) (supra) where a tenant had stopped paying rent and on that basis had claimed ownership by way of adverse possession, the Court observed as under :-
"...In the circumstances of the case, merely non-payment of rent, would not be sufficient to warrant a finding that the possession of the plaintiff had become adverse. The learned appellate Court on consideration of the entire matter, has rightly come to the conclusion that the plaintiff has failed to prove his adverse possession over the land in dispute. The finding being a pure finding of fact cannot be disturbed in second appeal."
18. Similarly in Daulat Ram's case, (1975 Pun LJ 12) (supra), in Para 16 of the judgment, this Court had noticed thus :-
"From these observations it is clear that the learned Additional District Judge clearly found that in the jamabandis and revenue records upto 1955-56 the defendants had been recorded as tenants of the plaintiffs. In the jamabandi for the years 1955-56 (Ex. D-9), the entries in the ownership column and the tenancy column were the same as in the previous jamabandis but in the rent column it was mentioned basharah malkan (at the proprietor's rate). It is thus clear that even in 1955-56 the title of the plaintiffs as owners of the land was not denied nor did the defendants deny their status as tenants. The entries in the jamabandi for the year 1958-59 (Ex.D.8) do not throw any light on this matter but the entry in the rent column in the jamabandi for the years 1962-63 (Ex. D.7) for the first time recorded bila lagan bewajah baradari (without rent on account of brotherhood). There is no entry in any revenue record showing that at any time between 1940-41 and the date of the suit, the defendants-respondents had surrendered their possession as tenants on the land to the owners nor has such an assertion been made by the plaintiffs in their pleadings or evidence. Mahajan, J. has referred to various judgments according to which merely because a tenant has stopped paying rent does not mean that he has ceased to be the tenant. Even the setting up of a hostile title in himself by the tenant against his landlord does not put an end to the relationship of landlord and tenant unless the tenant first gives up the possession as a tenant and then re-enters adversely to the true owner in his own right. As long as the tenant continues to be in possession in pursuance of his tenancy, he is estopped from denying the tittle of the landlord as is provided in Section 116 of the Evidence Act. The view of the learned Additional District Judge that the relationship of landlord and tenant had ceased to exist between the parties merely because the tenants had stopped paying rent to the plaintiffs was, therefore, erroneous in law and the learned single Judge could reverse the same in second appeal. It may be remembered that the finding arrived at by the learned lower appellate Court was not a mere finding of fact but had been arrived at by drawing an inference of law from the fact which was erroneous and . afforded a ground for second appeal."
19. The learned counsel for the appellant has further relied upon judgments reported in Annasaheb Bapusaheb Patil v. Balwant alias Balaaheb Babusaheb Patil (Dead) by LRs and heirs etc., and Kashi Ram v. Harbhajan Singh Bhajji, 2002 (2) Pun LJ 365 : (AIR 2000 HP 154). The Supreme Court in Annasaheb Bapusaheb Patil's case (supra) while discussing the meaning of adverse possession in Paras 12 and 13 has summarised thus:-
"(12) Article 65 of the Schedule to the Limitation Act, 1963 prescribes that for possession of immovable property or any interest therein based on title, the limitation of 12 years begins to run from the date of the defendant's interest becomes adverse to the plaintiff. Adverse possession means a hostile assertion i.e. a possession which is expressly or impliedly in denial of title of the true owner. Under Article 65, 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 hostile to the real owner and amounted to a denial of his title to the property claimed.
(13) Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to 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.
The said judgment has been followed in Kashi Ram's case (supra).
20. All these judgments are not applicable to the facts of the present case and stand distinguished. In all these cases, the person claiming adverse possession had been inducted as tenant and had stopped paying rent to the owner. Merely on that basis, he claimed that his possession was adverse and hostile to the knowledge of the true owner. The respondent has not claimed that she was ever tenant on the suit land. As per entry in the jamabandi for the year 1915-16, the possession of predecessors-in-interest of plaintiff was 'La Ilmi' (i.e. lack of knowledge). Thereafter, in the jamabandi for the year 1935-36 in Column No. 9, the entry is Billa Lagan Ba Khiai Malkiat' (i.e. without payment of rent considering to be owner). These entries amply show that the plaintiff or her predecessors-in-interest were in possession without payment of rent considering them to be owners. It proves that the plaintiff had been claiming the possession to be adverse and hostile to the knowledge of the defendants or their predecessors-in-interest. The defendants have not been able to show anywhere as to how the plaintiff had been inducted as tenant. Even 'Gair Marusi' in column No. 3 in the jamabandi for the year 1935-36 has to be read in conjunction and jointly with entry in column No. 9.
21. Now, adverting to the case law relied upon by counsel for the plaintiff-respondent, it may be noticed that the Apex Court in Parsinni's case, (1993 AIR SCW 3606) (supra), while dealing with the adverse possession had laid down that where a person becomes owner by adverse possession, the test is whether the person is able to show that he holds land for himself and if he did so, the mere fact that there was acquiescence or closet at the inception on the part of the owner makes no difference. In Jagan Singh's case, (185 RRR 280) (supra), in Paras 13 and 14, the Court noticed as under :-
"13. Counsel also stressed the importance and significance of the entries in the jamabandi in the column of rent, by adverting to Maman Singh v. The Resident Magistrate, Gohana, 1965 Pun LR 161, where it was held that it is entries in this column which go to show the status of the occupant of the land.
14. Counsel for the defendants, on the other hand, sought to contend that mere non-payment of rent, as per the entries in the revenue records, cannot be taken to (be) suffice to warrant a finding that possession was adverse. This argument being founded upon the judgment of this Court in Joginder Pal alias Joginder Pal v. Angad Singh, 1983 PLJ 14. A reading thereof would, however, show that it was held so in the peculiar circumstances of the case and not as a broad proposition of law applicable as general rule in all such cases."
22. In Puran's case (1955) 57 Pun LR 57 (supra), reliance was placed on the Privy Council's judgment in Arunachaliam Chetty v. Vankatachlapathi Guruswamigal's case reported as ILR 43 Mad 253 (269) : (AIR 1919 PC 62 at p. 68). The single Bench of this Court held as under :-
'The law in regard to adverse possessions has been laid down by their Lordships of the Privy Council in Arnachaliam Chetty v. Vankatchalapathi Guruswamigal (AIR 1919 PC 62) where Lord Shaw observed :-
This is a very ordinary case of possession nec vi nee clam nee precario. The person now claiming to be owner has stood by while others continued to possess not by any derivative title but in practical contravention of his alleged rights. The law does not require that the claimant to ownership must, in such circumstances, be shown to have protested that his rights were being violated, and that the possession went on adversely to his protests.' In a case decided by a Division Bench of the Lahore High Court in Ghulam Murtaza v. Nagina (AIR 1930 Lah 1991 : 31 Pun LR 243), a malik qabza had taken possession of the shamilat and remained in possession for a long period of time. Although he was shown in the Revenue records as tenant-at-will, his possession was neither lawful nor permissive at its inception and during that period he had exercised all rights of ownership. That was held to be sufficient to constitute adverse possession. The facts in the present case are no different. The evidence of the previous owners shows as is supported by the entries in the Revenue records that the plaintiff took possession without the consent of the landlords and he remained in possession without payment of any rent and the landlords took no steps to assert their rights as against him for a period of fifteen years. The plaintiff did not continue to possess by any derivative title but in contravention of the alleged rights of the proprietors, and on the facts of this case I find that the possession was hostile, notorious exclusive within the rule laid down by their Lordships of the Privy Council...."
23. The Himachal Pradesh High Court in Khazana Ram's case (1999 AIHC 3629) (supra) while dealing with somewhat similar case has held in para 6 as under :-
"6. Coming to the first Jambandi in favour of the respondent of the year 1959-60 Ex.DW-1/5 it is the Nagar Parighayat that is recorded as owner and the respondent is recorded in the possessory column as "GAIR MAROOSI". If this word has appeared in isolation some meaning could be given to it. Strangely enough in column No. 7 pertaining to 'Lagan' it is recorded "BILA LAGAN BAWAZA NAZAIJ KABZA". It would, thus, follow that the respondent has been in possession of the suit land unauthorisedly and without payment of any rent. Ex.PW-1/A is the report made by the revenue Patwari suggesting appropriate action as the possession of respondent Khazana Ram was found to be illegal. Patwari has also appeared as PW-1 in this case. In cross-examination he has made a funny statement. It has been said by him that the un-authorised possession was found at the time of check-up but he did not record it in the 'rapt roznamcha'. Towards the end of his statement it has been categorically said by him that the possession of the respondent over the suit land since 1959-60 is unauthorised."
24. In Ram Karan's case (1980 Pun LJ 295) (supra), where in column of rent, the person was shown to be Gair Marusi, this Court held that it was not sufficient to hold him to be tenant. It was held as under :-
"...It is settled law that generally in the revenue record, the persons even in unauthorised possession are described as gair maurusi (tenants) in the column of cultivation, but from this entry alone, it cannot be held that the status of such persons is that of tenants unless in the rent column it is disclosed that such persons were liable to pay rent. Reference may be made to Rulhu Ram v. Than Singh, 1996 Punjab Law Reporter 866 : (1966 PLJ 260)."
25. In Ganda Singh v. Ram Narain Singh It was observed by this Court as under :-
"In order to succeed on the plea of adverse possession, several facts have to be stated and substantiated by the party basing his title on this plea. Burden of proving all the elements of adverse possession is on the party setting up such a title. The plaintiffs in this case, in order to succeed, had to allege and establish, that their possession was actual, adverse, exclusive, peaceful, continuous, unbroken, open, notorious, visible, distinct, unequivocal and hostile under a colour of title, or, claim of right. He must further prove the date of commencement, the territorial extent and the length of his adverse possession. After title by adverse possession is prima facie substantiated, the defendant is given an opportunity to refute the plaintiffs contention, by showing that some or all the elements which go to support the plea of adverse possession are missing. A defendant may lead evidence to show that the statutory period had not . lapsed and the possession was still inchoate, or, that it was not hostile, or, that it was interrupted or, that it was based on fraud or was permissive or clandestine. The defendant could even defeat the plaintiffs contention by showing, that the possession was not open, hostile, visible, public or notorious or, that he had no actual knowledge. After the parties have led evidence in support of their respective contentions. The Court then determines the weight and sufficiency of the proof adduced.
An adverse possession, in order to secure title, does not merely consist of mental conclusion or in proving of intention. It must have its basis, in existence of physical facts, . as well openly evidence, the purpose to hold dominion over the property, in hostility to the title of the real owner, and as such will be tantamount to giving of notice to the real owner with respect to such a purpose. The party alleging the title by adverse possession, which from its very nature, is commenced in wrong, and is maintained in right, must lead evidence entitling deduction, that the occupant held possession for himself against all the world, and it was exclusive in the sense, that he either successfully turned out or shut out other claimants. It must be shown that the real owner was either evicted or excluded. The intention that is to be manifested is to hold the thing he himself (Animus sibi habendi) coupled with the intention to exclude every one else. (Animus alteri non-habendi).
An attribute of adverse possession is that it begins with disseisin or ouster of the owner. It is an act of displacement of the owner by the adverse claimant. Disseisin or ouster of the real owner is the foundation of the title by adverse possession. It remains an inchoate title, or a growing title till the expiration of 12 years of its continued, open and hostile assertion and enjoyment. Before title by adverse possession is perfected, all presumptions and intendments are in favour of the real owner. There are a very large number of hurdles before the adverse claimant, which he has successfully to clear. It is only after those obstacles are overcome, that the claimant of title, by adverse possession, receive the protection of law after the expiration of twelve years. Till then the law withholds its support from the wrong-doer."
26. Thus, in pursuance of the above discussion, it is concluded that the plaintiff became owner by adverse possession and the findings recorded by both the Courts below do not suffer from any illegality or infirmity and are hereby affirmed: The substantial questions of law as framed and claimed by the appellants are, therefore, answered in favour of the plaintiff and against the appellants.
27. Consequently, the present appeal is dismissed. There shall however, be no order as to costs.