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12. The respondent Nos. 2 & 3 have contested the petition and have filed the counter affidavit of A.K. Sinha, Supretending Archeologist, refuting the averments made in the petition. The respondents have contended that vide notification dated 13.12.1922 bearing No. 7331 published in the Gazette of India on 23.12.1922, the monument known as the D' Eremao cemetery, located in Kishangunj area of Delhi was declared to be a protected monument under the provisions of the Ancient Monuments Act, 1904. The respondents contended that in 1951 the AMASR Act, 1951 was enacted in which certain monuments were declared to be the monuments of National importance and deemed to be protected under the 1904 Act. Thereafter States Reorganization Act, 1956 came into being and Section 126 of the Act provided for continued protection to those monuments that had been declared to be protected under the provisions of Act of 1904. Then AMASR Act, 1958 came into being and Section 3 of this Act declared all the monuments which had been declared as monuments of national importance under Section 126 of the States Reorganization Act, 1956 were deemed to be ancient and historical monuments or archeological sites and remains declared to be of national importance for the purposes of this Act and thus the respondents asserted that the D' Eremao cemetery became the monument of national importance and the same is protected by the provisions of the AMASR Act, 1958. The respondents further submitted that vide a Gazette notification dated 16.6.1992 published under Rule 31 of the AMASR Rules 1959, a prohibited area is defined as an area of 100 meters around the protected limits of the monuments and the regulated Area covers a further distance of 200 meters.

13. Therefore the D' Emerao Cemetery is a protected monument under the provisions of AMASR Act, 1958 and therefore, any encroachments within the cemetery are illegal and without any authority of any law and that the relief sought by the petitioners will perpetuate illegal and unauthorized occupation of the protected monument, which ought not to be countenanced by the Court. Page 0409 The respondents further contended that the petitioners' have not produced anything to show any right or title for continued occupation of the monument in question and therefore are merely encroachers. The respondents further submitted that Mr. Alool did not have any authority to allow use of or encroachment upon the protected area of the monument and that such a permission, even if granted, was contrary to law. The respondents also submitted that upon visit to the monument on 1.4.2005 it was seen that the petitioners have built houses over the graves, sometimes using the raised portions of the graves as support for the walls and that some of the graves have also been defaced to such an extent that it was not possible to identify the remains interred beneath the graves. The respondents further submitted that the rules regarding the prohibited area and restricted area were promulgated in 1992 and that the constructions carried out only after 16.6.1992 would be in violation of the said rules and that the rules relating to prohibited and regulated area are not attracted in the present case where the construction has taken place within the protected monument and not outside the protected monument. The respondents therefore asserted that the respondents have a statutory responsibility to ensure that the monuments of national importance are preserved and protected and that no person has the right to desecrate and deface these monuments of national importance.

17. A notification bearing No. 7331 dated 13.12.1922 was issued on 23.12.1922 in the Gazette of India declaring the D' Eremao cemetery as a protected monument under the Ancient Monuments Act, 1904 by the Central Government which fact has not been disputed by the petitioner. The protection granted to the D' Eremao cemetery under the 1904 Act continued under Section 126 of the States Reorganization Act, 1956. Section 126 of the States Reorganization Act is as under:

126. Declaration of certain ancient monuments in Part C States to be of non importance:

19. In view of the provisions of the AMASR Act, 1958, 1904 Act and the States reorganization Act, 1956 it is clear that the D' Eremao cemetery is a protected monument within the meaning of Section 3 of the AMASR Act, 1958. Since Page 0412 the cemetery is protected monument, therefore, the respondents are justified in issuing the notice dated 17.10.2005 under the provisions of AMASR Act, 1958 and the same does not call for any interference, whatsoever, by this Court.

20. Further the petitioners' have not produced anything to show that they were not in unauthorized occupation of the premises in question or that they are not encroachers and that they have some right, title or interest in the property. The plea of adverse possession of the petitioners' is also not tenable in the facts and circumstance. The plea of the petitioner is that their possession is permissive. This is not the case of the petitioners that their possession was hostile and notorious. Possession of the petitioners consistent with and in recognition of the owner's title will not be adverse. Adverse possession is to be proved as a fact which the petitioners are unable to prove in the present facts and circumstances. Therefore the plea of the petitioners that they are entitled to continue in possession as they have become owners by adverse possession can not be sustained and is rejected.