DALIP SINGH v. State of Himachal Pradesh — 1990 DIGILAW 57 (HP)

JUDGMENT Devinder Gupta, J,—This Regular Second Appeal is directed against the judgment and decree passed on June 23, 1979 by the learned Additional District Judge, Mandi allowing the appeal of the defendant and setting aside the judgment and decree passed on July 31, 1976 by the learned Senior Sub-Judge, Mandi whereby the suit of the plaintiff for grant of a decree for declaration to the effect that he had become owner of the suit land by way of adverse possession was decreed* The plaintiff-appellant has sought reversal of the decree of the learned Additional District Judge, Mandi and for restoration of the judgment and decree of the trial Court. 2. This being an appeal under para 32 of the Himachal Pradesh Courts Order, 1948, the evidence will have to be appreciated by this Court. The facts which emerge from the pleadings of the parties are as under. 3. On March 31, 1953, an application was moved by the plaintiff for grant of 7-0-15 bighas of land by way of nautor comprised in khasra No. 945 situate within the revenue estate, Majhethal in Tehsil Sadar, District Mandi. On May 21, 1955, the Deputy Commissioner, Mandi granted the said land by way of nautor on payment of Rs. 70 as nazrana. The plaintiff was put into possession of the said land. Through mutation No, 291 attested on May 29, 1956, effect was given to this grant in the revenue records. While breaking open the nautor land the plaintiff appears to have occupied the adjacent land also for which proceedings under section 163 of the Himachal Pradesh Land Revenue Act were initiated against him on March 1, 1957 for his ejectment from the land unauthorisedly occupied by him. On April 20, 1957, a statement (copy Ex. DL) was made by the plaintiff before the Tehsildar, Mandi asserting that he is not in possession of any other Government land except the land granted to him as nautor. He further stated that in case he is found to be in possession of excessive land he is prepared to vacate the same. On April 22, 1957, objections were filed by the plaintiff against his ejectment. What ultimate order was passed in the said proceedings cannot be ascertained from the present record. He further stated that in case he is found to be in possession of excessive land he is prepared to vacate the same. On April 22, 1957, objections were filed by the plaintiff against his ejectment. What ultimate order was passed in the said proceedings cannot be ascertained from the present record. However, on August 27, 1957, the plaintiff move an application before the Deputy Commissioner, Mandi with a prayer for correction in revenue records by showing his possession on 7-0-15 bighas of land which had been granted to him by way of nautor. The plaintiff thereafter was shown to be the owner and in occupation of 7-0-15 bighas comprised in khasra No. 945 as shown in the tatima (copy Ex. DC). 4. The plaintiff desirous of acquiring more land thereafter on November 25, 1965 moved another application for grant of nautor with respect to adjacent piece of land measuring 7-19-9 bighas shown in the tatima as Khasra No. 945/2/1. In the said application (copy Ex. DA) the plaintiff specifically pointed out that he was only holding 7-0-15 bighas;«of land and was not possessed of any other land to support his large family. The application was supported by an affidavit (copy Ex. DB) wherein the plaintiff clarified that the area applied for is adjacent to his property. 5. During this very period, proceedings for ejectment were initiated against the plaintiff for having encroached upon another piece of land adjacent to his property shown as Khasra No. 945/2/2 in tatima Ex. DC. This piece of land was different from the piece of land for whi ch the plaintiff had applied for grant of nautor and the land which had already been granted to him. The plaintiff contested these proceedings. On May 23, 1966, an order was made by the Assistant Collector, 1st Grade, Mandi ordering his ejectment, The matter was taken up in appeal by the plaintiff. The appeal was dismissed and the order of ejectment was upheld by the Financial Commissioner on September 19, 1970. 6. The plaintiff contested these proceedings. On May 23, 1966, an order was made by the Assistant Collector, 1st Grade, Mandi ordering his ejectment, The matter was taken up in appeal by the plaintiff. The appeal was dismissed and the order of ejectment was upheld by the Financial Commissioner on September 19, 1970. 6. On January 13, 1971, the plaintiff instituted a civil suit in the court of the Senior Sub-Judge, Mandi seeking a decree for declaration to the effect that he had perfected his title as owner by way of adverse possession against the State with respect to land measuring 7-2-4 bighas comprised in Khasra No. 945/2/1 and 945/2/2 and, in the alternative, a prayer was made that a decree be granted and that he is entitled to the benefit of Rule 21 of the Himachal Pradesh Nautor Land Rules, 1954, The suit was contested by the defendant-State. The trial court held that the plaintiff had become owner by way of adverse possession and granted the declaration to the plaintiff. In appeal, the findings of the trial court were reversed by the lower appellate court holding that the possession of the plaintiff cannot be termed as adverse and consequently the appeal of the State was allowed and the suit filed by the plaintiff was dismissed. The plaintiff has now come up in second appeal challenging the findings recorded by the lower appellate court. 7. During the course of the hearing of the appeal, the learned Counsel for the plaintiff-appellant has argued that the approach adopted by the lower appellate court in reversing the findings of the trial court is not legal and the evidence on record is sufficient to warrant a finding that the plaintiff-appellant had acquired title to the suit land by way of adverse possession. It has been contended that the plaintiff has been in occupation of the suit property for the last more than 30 years and prior to him his father was in occupation of the property and as the plaintiff derives his title from his father, therefore, he is entitled to tacken to his adverse possession. It has also been contended by the learned Counsel for the plaintiff that all necessary ingredients constituting adverse possession are present in the case. It has also been contended by the learned Counsel for the plaintiff that all necessary ingredients constituting adverse possession are present in the case. The plaintiff was never dispossessed from the land in accordance with the law irrespective of the proceedings for ejectment and, therefore, keeping in view the overwhelming evidence adduced by the plaintiff, the judgment of the lower appellate court is vitiated. 8. The learned Counsel appearing for- the defendant-State has refuted the arguments by contending that there is variance between pleadings and proof. It has not been established that the plaintiff was in possession of the suit property prior to 1966. The plaintiff had already been dispossessed pursuant to the proceedings for ejectment and there being no evidence of open continuous, uninterrupted and hostile possession in assertion of his right by the plaintiff for the last more than 30 years, the plaintiff cannot be granted any relief. 9. The law with respect to adverse possession is well settled, Before a party can succeed in establishing its title on the basis of adverse possession, a plea to that effect must be specifically raised A person who claims adverse possession must plead to that effect and must show that when he came in possession, what was the nature of his possession, whether the fact of his adverse possession was known to the owner. In order to maintain a plea of adverse possession it must be stated that the plaintiff had ever asserted any hostile against the real owner or that a dispute with regard to ownership and possession had ever arisen. In other words, adverse possession, to succeed, must be one nee vi nee clam and nee precario, namely, such possession, to be adverse, must be adequate in continuity, in publicity and in extent to show that the possession was adverse to the competitors. The period of limitation required for acquiring such title against a private individual is 12 years but in the case of State only indulgence provided by Limitation Act is that longer period of 30 years is prescribed. In my view I am supported by S M. Karim v. Mst. Bibi Sakina, AIR .1964 SC 1254 and Kshitish Chandra Bose v Commissioner of Ranchi, AIR 1981 SC 707. That takes me to find out as to whether the plaintiff is in a position to establish his adverse possession or not. In my view I am supported by S M. Karim v. Mst. Bibi Sakina, AIR .1964 SC 1254 and Kshitish Chandra Bose v Commissioner of Ranchi, AIR 1981 SC 707. That takes me to find out as to whether the plaintiff is in a position to establish his adverse possession or not. For this it will be worthwhile to refer to pleadings and evidence. In the plaint, the only plea raised by the plaintiff is that the plaintiff has been in open and hostile possession of the suit land for a period of more than 30 years. The oral evidence adduced is to the effect that not only the plaintiff but his father was also in possession of the suit property for the last about 40 to 45 years. There is no evidence adduced to show as to when the plaintiff came into possession and as to how such nature of possession was hostile against the State and when such possession became adverse. The plaintiff has admitted the factum of having applied for the grant of nautor and also the fact of ejectment proceedings against him. The plaintiff has further admitted having made statement Ex. DL and sworn affidavit copy of which is Ex. DB and having filed an appeal before the Divisional Commissioner against the order of ejectment, copy of which is Ex. DD. Ex. DE is the copy of affidavit attached with the said application accompanying appeal and Exs. DF and DG are the copies of statements of the plaintiff. All these documents are accepted to be true by the plaintiff. The cumulative effect of these documents is that the plaintiff in the year I9t6 claimed himself to be in occupation of the suit land for the last 15 years. On November 25,1965, as earlier stated, an application for the grant of nautor land was made where also the plaintiff admitted the fact that he was in occupation of 7-0-15 bighas of land granted to him in the year 1955 and was applying for 7-19-9 bighas of land and he was not in possession of any other land meaning thereby that till the date of application, the plaintiff was not in possession of any other portion of land except the one granted in the year 1955. As such the plaintiff cannot be said to be in occupation of the suit land prior to November 25, 196% Moreover, in having applied for the grant of nautor in November 1965, there is an implied admission on the part of the plaintiff admitting title of the State Government. In case the plaintiff encroached upon or occupied the suit land after November 25, 1965, it is difficult to return a finding that possession of the plaintiff is for more than the statutory period. 11. During the course of hearing arguments, the learned Counsel for the plaintiff contended that in case it is found that the plaintiff has encroached upon the Government land, the plaintiffs possession deserves to be regularised in view of the latest policy of the State Government for regularisation of illegal possessions. I am afraid such contention made on behalf of the plaintiff cannot be accepted in civil proceedings. The plaintiff for getting relief under the policy of the State Government has to move the appropriate authority for granting him such relief as is permissible under such policy. 12. In view of the documentary evidence produced on record by the defendant-State, as discussed above, the findings recorded by the trial Court were not sustainable in law an the lower appellate Court has rightly reversed the same. The plaintiff has neither proved his possession for the last more than 30 years and also having failed in proving hostile nature of such possession, the plaintiff is not entitled for the decree prayed for. 13. In the result, the appeal is dismissed. The judgment and decree of the lower appellate court is affirmed. The parties are left to bear their own costs. Appeal dismissed.