ASHOK KUMAR v. HARDYAL — 1994 DIGILAW 50 (HP)

JUDGMENT A.L. Vaidya, J.—The present appellants claimed themselves to be the owners of the suit land measuring 1 Bigha 19 Biswas comprised in Khasra No. 124, entered at Khewat No. 5, Khatauni No. 12, situated in Mauja Bargan, Pargana Barabal, Tehsil Suni District Shimla. The appellants had preferred a suit for possession pertaining to the aforesaid land alleging that defendant Nos. 1 and 2 had taken the suit land as licensees from plaintiff Nos.1 to 5, 12 and Shri Bhagat Dass, who had been succeeded by plaintiff Nos. 6 to 11, and the condition of the licence, according to the plaintiffs, was that the licensees had to surrender the possession in favour of the owners on demand. Shri Dhankloo, the predecessor-in-interest of respondent Nos. 3 (a) and 3 (b), as per averment made in the plaint, was inducted by the licensees as a tenant and, according to the plaintiffs, this tenancy could continue till the revocation of licence granted in favour of defendant Nos. 1 and 2 (respondent Nos. 1 and 2). Further case of the plaintiffs has been that defendant Nos. 1 and 2, were informed by the plaintiffs in the year 1972 that the land in suit was required by them and that they should deliver its vacant possession to the plaintiffs but the defendants failed to do so inspite of repeated promises and as a consequence thereof, on demand by the plaintiffs, the licence in favour of defendant Nos. 1 and 2 stood revoked and cancelled and since 1972 the possession of all the defendants was without any interest and right. The plaintiffs served them with a notice dated 4th July, 1973 to handover the possession but the defendants did not comply with the terms of the notice and hence the suit for possession was filed. 2. The defendants in their written statement took certain preliminary objections and pleaded that the plaintiffs had absolutely no right whatsoever to institute the suit regarding the suit land inasmuch as defendant Nos. 1 and 2 were the owners of the suit land and their predecessors had been so entered in the record of right paying no rent, being owners. The plaintiffs suit has been assailed to be beyond limitation and defendant Nos.1 and 2 claimed themselves to have become absolute owners by way of adverse possession for more than the statutory period of 12 years. The plaintiffs suit has been assailed to be beyond limitation and defendant Nos.1 and 2 claimed themselves to have become absolute owners by way of adverse possession for more than the statutory period of 12 years. The plaintiffs plea that defendant Nos.1. and 2, held the suit land as licensees, has been denied and not admitted. However, it was very specifically pleaded that defendant No. 3 was in occupation of the suit land as a tenant since generations, under defendant Nos. 1 and 2, and their fore-fathers. The other averments of the plaint were not admitted. 3. The parties were put to trial on the following Issues by the trial Court : 1. Whether the plaintiffs are the owners of land in dispute ? OPP 2. Whether defendant Nos.1 and 2 had taken the land in suit as licensees from the plaintiffs and their predecessors, as alleged ? If so, its effect ? OPP 3. Whether the plaintiffs have no locus standi to file the suit ? OPD 4. Whether defendant Nos.1 and 2 are the owners of the land in suit ? OPD 5. Whether the suit is within time ? OPP (Onus objected to) 6. Whether defendant Nos.1 and 2 have become the owners by adverse possession, as alleged ? OPD 7. Whether the suit has not been properly valued for the purposes of Court-fee and jurisdiction ? OPD 8. Whether the plaintiffs are estopped by their own acts, deed and conduct and acquiescence ? OPD 9. In case Issue No. 2 is proved in favour of the plaintiffs, whether defendant No. 3 is not liable to deliver the possession ? OPD-3. 10. Relief. 4. The trial Court disposed of Issue Nos.1, 2 and 5 in favour of the plaintiffs and the remaining Issues against the defendants. The suit of the plaintiffs for possession was decreed by the trial Court. 5. The defendants assailed the aforesaid judgment and decree passed by the trial Court on various grounds. The lower appellate Court accepted the appeal and dismissed the suit of the plaintiffs. 6. The judgment and decree passed by the lower appellate Court has been assailed in the present appeal on various grounds. 7. The main controversy arising out of the arguments advanced on behalf of the parties revolves around the plea of adverse possession take by the defendants. 8. 6. The judgment and decree passed by the lower appellate Court has been assailed in the present appeal on various grounds. 7. The main controversy arising out of the arguments advanced on behalf of the parties revolves around the plea of adverse possession take by the defendants. 8. The parties in order to establish their respective pleas have brought on record oral as well as the documentary evidence. The documentary evidence consisted of the entries in the record of right. The plaintiffs are mainly dependent upon the entries in the record of right wherein they have been recorded as owners of the suit land and, according to the learned Counsel for the appellants, defendant Nos.1 and 2 have been recorded as licensees under the plaintiffs while defendant No.3 has been recorded to be in actual occupation as tenant under the licensees. The learned Counsel for the plaintiffs line of argument in this particular behalf has been that the latest entries in the record of right clearly reflected the case of the plaintiffs which entries have not been successfully rebutted by the defendants and as a consequence thereof the suit for possession preferred by the plaintiffs has to be decreed. It is not so simple a matter, as has been contended on behalf of the plaintiffs. 9. There is absolutely no dispute to the proposition that legal presumption of truth is attached to the latest entries in the record of right but this presumption is always rebuttable. 10. Ex. P-9 is the copy of jamabandi for the year 1965-66 wherein the plaintiffs have been recorded as owners while in the column of occupation defendant No.3 Dhankloo has been recorded in actual occupation as non-occupancy tenant No.2 under defendant Nos.1 and 2, who have been described as non-occupancy tenants No.1. In the column of rent defendant No. 3 has been recorded to be paying half of the produce as rent to defendant Nos.1 and 2, while defendant Nos. 1 and 2 have been recorded to be not paying rent on account of consent. 11. There are other entries brought on record by the plaintiffs. Ex. P-l and Ex. P-2 are the copies of Jamabandis of the suit land pertaining to the period 1929-30, 1933-34 corresponding to B. K. 1986-87 and 1990-91 respectively. 1 and 2 have been recorded to be not paying rent on account of consent. 11. There are other entries brought on record by the plaintiffs. Ex. P-l and Ex. P-2 are the copies of Jamabandis of the suit land pertaining to the period 1929-30, 1933-34 corresponding to B. K. 1986-87 and 1990-91 respectively. In both these copies the suit land has been recorded under the self-cultivation by the then owners who were nobody else than the predecessor-in-interest of the present plaintiffs, Ex. P-3, the copy of Jamabandi for the year 1939-40, corresponding to B. K. 1994-95, was the important and crucial entry which recorded the plaintiffs to be the owners but in the column of possession the name of one Ladi Sahiba Sarnauji, widow of Sanichar Singh was recorded. In the column of rent the entry in this Ex. P-3 recorded as "BILA LAGAN BAWAJA TASHWAR MALI-KIAT". The only inference of this entry in favour Ladi Sahiba Sarnauji was that she was in actual occupation of this suit land in assertion of her own title, meaning thereby that she was in adverse possession of the suit land claiming herself to be the owner. 12. The next entry in the record of right pertained to the year 1943-44, which was reflected from Ex. DA which corresponded to B.K. 1998-99. The entry in the column of ownership remained the same while in the column of occupation the entry read : "SARNAUJI BEWA SANICHAR SINGH KAUM RAJPUT SAKAN JAMOG GAIR MAUROSI AWAL MARFAT GURSU BALD BARFU KAUM KOLI SAKAN DEH GAIR MAUROSI DOM." In the column of rent then entry was that no rent was payable from Gair Maurosi-I to the owners and the reason given was "BAWAJA KABJA IKHATALAF " while as regards the Gair Maurosi Deom the entry was that he was liable to pay half Batai rent to Smt. Sarnauji. This entry pertaining to Smt. Sarnauji cannot be interpreted as an entry in favour of a licensee. The word IKHATALAF meant disputed possession. Thus, in 1943-44 again, as per entries referred to above, Smt Sarnauji could not be termed as a licensee on any score whatsoever. This entry pertaining to Smt. Sarnauji cannot be interpreted as an entry in favour of a licensee. The word IKHATALAF meant disputed possession. Thus, in 1943-44 again, as per entries referred to above, Smt Sarnauji could not be termed as a licensee on any score whatsoever. It was, thus, in this year that, according to the record of right, actual occupation of the suit land was with the tenant who was inducted as a tenant not by the owners jut by Smt. Sarnauji, who asserted her possession adverse to the owners. 13. Ex. P 4 is the copy of Jamabandi for the year 1947-48 where the entries in the column of possession and ownership were repeated but in the column of rent there was some change and that change pertained only to the reason for non-payment of rent by Sarnauji on account of consent of the owners. The actual words used were "BAWAJA RAZI MALKAN" which only reflected that the possession of Smt. Sarnauji was recorded as a permissive one and that too with the consent of the owners and on that account she was recorded not to be paying rent to the owners. 14. For the year 1951-52, the copy of Jamabandi brought on record is Ex. P-5. In this copy there is a change in the column of possession and in place of Smt. Sarnauji the names of Hardayal Singh and Sher Singh sons of Rana Virpal Singh were entered as non-occupancy tenant-I and Shri Gursu non-occupancy tenant-II was substituted by his son Dhankloo. This substitution came as there has been no dispute to the fact that during the intervening period Smt. Sarnauji and Gursu both expired. However, the entries pertaining to the column of rent remained the same and, according to that, no rent was payable by non occupancy tenant No.I to the owners whereas Dhankloo non-occupancy tenant No. II was liable to pay half BATAI rent to non-occupancy tenant No. I. It may be referred here that so far as Dhankloo, defendant No. 3, was concerned since 1951-52 he was recorded in actual occupation as non-occupancy tenant No. II and prior to that his father had been continuously recorded as non-occupancy tenant No. II, as referred to above, 15. There is no dispute that Smt. Sarnauji died issueless and defendant Nos.1 and 2 were closely related to her and it appeared that as per entries in the record of right mentioned above, after the death of Smt. Sarnauji, non-occupancy tenant No. II attorned in favour of defendant Nos. 1 and 2 and started paying rent to them who were so recorded in the subsequent entries in the record of right. This aforesaid entry in Ex. P-5 in the year 1951-52 continued to be repeated till the suit was filed in November, 1973. 16. Parties have examined oral evidence as well. On behalf of the plaintiffs only one witness PW 1, Shri Kishan Dass was examined. This witness stated on oath that the suit land was given to Smt. Sarnauji, widow of Shri Sanichar Singh, by his father and after her death the plaintiffs cultivated the suit land and thereafter the suit land was given by his father in favour of Sher Singh and Hardayal, defendant Nos.1 and 2, for cultivation with this condition that whenever the land was required, it would be handed over back. He also stated that on the same condition the suit land was given to Smt. Sarnauji. He also disclosed that the land to defendant Nos. 1 and 2 was given by his father in his presence and in the presence of the villagers. He also stated that Sher Singh and Hardayal, defendant Nos. 1 and 2, were the sons of Virpal who was Rana of Bhaji but added that they were sons of Rana from the keep and not from Rani. He also stated that Sanichar Singh, the husband of Smt. Sarnauji, was also son of Rana through his keep. The said plaintiff, as such, has pointed out the relation between Smt. Sarnauji and defendant Nos. 1 and 2. This plaintiff further stated that the plaintiffs never gave this land in favour of Dhankloo. He has been very specific in deposing that Hardayal and Sher Singh (defendant Nos. 1 and 2) did not give this land in favour of Dhankloo with the consent of the plaintiffs. He admitted that when Tulsia was the owner of the suit land, Smt. Sarnauji was in occupation of this land and was not paying any rent. He also admitted that the plaintiffs did not realise any rent from defendant Nos. 1 and 2) did not give this land in favour of Dhankloo with the consent of the plaintiffs. He admitted that when Tulsia was the owner of the suit land, Smt. Sarnauji was in occupation of this land and was not paying any rent. He also admitted that the plaintiffs did not realise any rent from defendant Nos. 1 and 2 as the land was not given to them on rent. This witness stated that after the death of Smt. Sarnauji they cultivated the suit land themselves and thereafter it was given on licence in favour of defendant Nos. 1 and 2. 17. On the other hand defendants examined three witnesses. DW 1 was Shri Nandia while DW 2 was one of the defendants Hardayal and DW 3 was defendant No. 3 Dhankioo. All these witnesses have tried to support the case of the defendants by deposing that the suit land was in occupation, at the first instance, of Sanichar Singh and thereafter in occupation of his widow, Sarnauji through tenants. They have also supported the case of the defendants by stating on oath that Sanichar Singh and thereafter his widow were in occupation of this land without paying any rent to the owners for more than 50 years. Defendant Hardayal Singh, who appeared as DW 2, very specifically deposed that they were in occupation of this land since the time of Sanichar Singh as owners and at the first instance Gursu was inducted as a tenant on the suit land and after his death Dhankloo became tenant under defendant Nos. 1 and 2. Dhankloo has also supported this case, while appearing as DW 3. On the basis of the aforesaid evidence not only the entries in the record of right are to be interpreted but the plea of adverse possession has also to be appreciated. 18. Needless to say, adverse possession should have the characteristic of adequacy, continuity and exclusiveness. There is again no dispute to the proposition that the onus to establish these characteristics is on the person claiming adverse possession. 18. Needless to say, adverse possession should have the characteristic of adequacy, continuity and exclusiveness. There is again no dispute to the proposition that the onus to establish these characteristics is on the person claiming adverse possession. In order to appreciate the evidence in this particular behalf, the entire evidence brought on record has to be scrutinized inasmuch as, at this stage of the trial, the onus of proving such an issue loses all significance and the real controversy between the parties has to be determined on the basis of the entire evidence on record. 19. The plaintiffs have solely based their claim on the basis of the entries in the record of right which, according to them, supported their pleas of licence and it has been argued with that background that once the licence stood revoked the possession of all the defendants over the suit land became that of trespassers and, according to the learned Counsel for the plaintiffs, as the licence was revoked in the year 1972-73 the possession of the defendants thereafter could only be that of trespassers for which the plaintiffs, being true owners, were legally entitled to. 20. It has come in the evidence, as discussed above, that originally since 1939-40 Smt. Sarnauji was recorded in occupation of this land as non-occupancy tenant without paying rent on account of claiming herself as owner. This entry clearly reflected that Smt. Sarnauji in the year 1939-40 was in adverse possession of the suit land. Her adverse possession was recorded in the subsequent entry in the record of right pertaining to 1943-44 but in the year 1947-48 all of a sudden her possession was described on account of consent of the owners without payment of rent. There is absolutely no explanation coming on record to suggest, even remotely, as to how this change was effected. Any way in answer to this query, the learned Counsel for the plaintiffs argued that there is legal presumption for legal substitution of the previous entry which cannot be ignored. Even if for arguments sake, the presumption might be for valid change but that aloe will not serve the purpose to the case of the plaintiffs even if it is appreciated on the basis of the entries in the record of right. 21. Even if for arguments sake, the presumption might be for valid change but that aloe will not serve the purpose to the case of the plaintiffs even if it is appreciated on the basis of the entries in the record of right. 21. The plaintiffs case that after the death of Smt Sarnauji the land came into their self-cultivation, cannot be accepted on the basis of the entries in the record of right as at no time during the life time of Smt. Sarnauji or after her death the plaintiffs were ever recorded in actual occupation of the suit land. But on the other hand after the death of Smt. Sarnauji defendant Nos. 1 and 2 had been recorded in occupation of the suit land as non-occupancy tenants No. 1 and in the life time of Smt. Sarnauji Gursu was recorded in occupation of the suit land as non-occupancy tenant No. II and after his death Dhankloo was recorded as such. Thus, the version given by PW 1 and the plea taken by the plaintiffs in this behalf that they came to occupy the suit land after the death of Smt. Sarnauji cannot be accepted at all but on the other hand after the death of Smt. Sarnauji collaterals of her husband came in her place and after the death of Gursu defendant No. 3 came in his place who was recorded in actual occupation of the suit land as non-occupancy tenant No II and continued to be recorded so till the suit was filed. These entries, coupled with the entire evidence brought on record, clearly proved that, at the first instance in the year 1939-40 Smt. Sarnauji was recorded in actual possession of the suit land and her possession has been described as adverse to the owners and in the year 1943-44, for the first time Gursu was recorded as non-occupancy tenant No. II under Smt. Sarnauji on payment of rent and these entries continued till the filing of the suit with the exception that in place of Smt. Sarnauji defendant Nos. 1 and 2 were substituted and in place of Gursu, his son Dhankloo, defendant 3 was substituted. 22. It has come in the statement of PW 1 that Dhankloo was not inducted as tenant with the consent of the plaintiffs. 1 and 2 were substituted and in place of Gursu, his son Dhankloo, defendant 3 was substituted. 22. It has come in the statement of PW 1 that Dhankloo was not inducted as tenant with the consent of the plaintiffs. The name of Dhankloo, defendant No. 3, was for the first time entered in the record of right in the year 1951-52 and prior to that his father was recorded in actual occupation as non-occupancy tenant No. II. 23. It may be pointed out here that licence itself is the creature of an agreement and, according to the plaintiffs, this licence was to come to an end when the actual possession was demanded from the licensees. There is nothing in the pleadings or in the statement of PW 1 that licensees, as per condition of the licence, were permitted to induct tenant in the suit land. On the other hand, at the cost of repetition, it may be referred that as per PW 1 the tenant was not inducted with the consent of the plaintiffs, meaning thereby that defendant Nos.1 and 2 themselves, without taking permission of the plaintiffs, inducted the tenant on the suit land. Prior to defendant Nos. 1 and 2 Smt. Sarnauji had inducted the tenant on the suit land without the permission of the owners. 24. At this stage section 56 of the Indian Easements Act, 1882, can safely be referred which is being reproduced hereunder for the sake of convenience : "56. Licence when transferable.—Unless a different intention is expressed or necessarily implied, a licence to attend a place of public entertainment may be transferred by the licensee ; but, save as aforesaid, a licence cannot be transferred by the licensee or exercised by his servants or agents." 25. There is no dispute to the proposition that licence means the grant of a right to do or continue to do in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful and such right did not amount to an easement or an interest in the property. Licence, as such, does not create an interest in the property in respect of which it is granted but creates only a personal privilege. 26. Licence, as such, does not create an interest in the property in respect of which it is granted but creates only a personal privilege. 26. It has come in evidence, as discussed above, that defendant No. 3s father was inducted as a tenant in the suit land and after the death of his father defendant No. 3 came to occupy the suit land as a non-occupancy tenant No. II under defendant Nos. 1 and 2, who have been described as non-occupancy tenants No. I. 27. Thus, as per the evidence on record, a lease has been created in favour of defendant No. 3 by defendant Nos.1 and 2 by inducting defendant No. 3 as a tenant. Tenancy or lease is a transfer of right to enjoy such property which has been defined under section 105 of the Transfer of Property Act as under : "105. A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. The transfer is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent." 28. On the other hand a tenant of an agricultural holding means a person who holds land under a landowner, and is, or but for a contract to the contrary would be liable to pay rent for that land to that landowner and includes a sub-tenant and the predecessors or successors in interest of a tenant or a sub-tenant, as the case may be. 29. Thus, lease/tenancy has some vital distinction from the licence. Lease of immovable property is transfer of a right to enjoy such property lessee is entitled to be put in possession of the property. The lessor in such a case parts with his right to enjoy the property during the terra of the lease and, as such, it follows that the lessee gets that right to the exclusion of the lessor but it is not to be so when a licence is granted. The lessor in such a case parts with his right to enjoy the property during the terra of the lease and, as such, it follows that the lessee gets that right to the exclusion of the lessor but it is not to be so when a licence is granted. Under a licence a right to use the property in a particular way or in certain terms is granted while the property remains in possession and actual control of the owner thereof. The legal possession, therefore, continues to be with the owners of the property but the licensee is permitted to make use of the property for a particular purpose, 30. With the aforesaid background the evidence examined during the trial has to be appreciated keeping in view section 56 of the Indian Easement Act reproduced above. Under the said provision of law, a licence is ordinarily only a personal right and carries with it the incident of non-transferability. There is absolutely no evidence brought on record on behalf of the plaintiffs that the so called licence pleaded by them could in a way be transferred by the licensee but on the basis of the aforesaid provision of law the transfer of licence could not be legally made. 31. In the present case, firstly, Smt. Sarnauji in the year 1943-44 created tenancy in favour of Gursu, father of defendant No. 3, which tenancy continued till the filing of the suit. The right to create tenancy has been exercised by Smt. Sarnauji as an owner which was a clear and specific indication of her asserting herself to be owner of the suit land. Even if for arguments sake defendant Nos. 1 and 2 created tenancy in the year 1951-52 in favour of defendant No. 3, it can safely be said that these defendant Nos. 1 and 2 by exercising that right of ownership by creating tenancy for the first time claimed this right and exercised the same in the year 1951-52 onwards which was hostile to the ownership rights of the plaintiff and this came within the ambit of adverse possession. At the first instance, since 1939-40 but in case this aspect is even ignored, since 1951-52 defendant Nos.1 and 2 have been claiming adverse possession over the suit land against the plaintiffs who happened to be recorded as owners in the record of right. At the first instance, since 1939-40 but in case this aspect is even ignored, since 1951-52 defendant Nos.1 and 2 have been claiming adverse possession over the suit land against the plaintiffs who happened to be recorded as owners in the record of right. This possession of theirs, through defendant No.3 has not only been hostile to the knowledge of the plaintiffs but has been continuous also for more than twelve years. 32. Defendant Nos. 1 and 2, through their tenant defendant No. 3, as such remained in possession any enjoyment without any hinderance. Defendant Nos.1 and 2, therefore, have been in enjoyment of the suit land by leasing the land to the tenant as evidenced by the entries in the record of right, as discussed. This aspect alone showed open assertion of their own right, when defendant Nos.1 and 2 claimed title to the suit land, it is sufficient for them to show that their possession is overt and without any attempt of concealment so that the plaintiffs against whom time was running ought, if to exercise due vigilance, to be aware what was happening. The possession of defendant Nos.1 and 2 was adverse to the plaintiffs inasmuch as Smt. Sarnauji in the year 1942-43, more so, defendant Nos.1 and 2 themselves since 1951-52 have inducted tenant in the suit land, which overt act was nothing but in exercise of asserting ownership right in themselves to the knowledge of the plaintiffs. Defendant Nos.1 and 2, being licensees, were having very limited rights to enjoy the suit land, but inspite of statutory embargo placed by section 56 of the Easement Act, without there being any agreement between the licensors and the licensees for transfer of the suit land, the creation of tenancy by licensees, under the circumstances, was nothing but to assert in themselves the right of owner-ship. By creating tenancy, defendant Nos.1 and 2 transferred much more rights in the tenant than these defendant Nos.1 and 2 were actually having under the alleged licence. Defendant No. 3, who acquired tenancy right, could not be evicted as a licensee but only under due process of tenancy laws. 33. In this view of the matter, possession of defendant Nos.1 and 2, being adverse for more than twelve years, has definitely, under the law, ripened into ownership. Defendant No. 3, who acquired tenancy right, could not be evicted as a licensee but only under due process of tenancy laws. 33. In this view of the matter, possession of defendant Nos.1 and 2, being adverse for more than twelve years, has definitely, under the law, ripened into ownership. The judgment and decree passed by the lower appellate Court do not require interference whatsoever as the same have been passed after correctly appreciating the law and evidence in this particular behalf. The suit, as such, suffers for want of limitation as the defendants have proved their possession to be adverse for more than twelve years. No other point has been stressed. In view of the foregoing reasons, I, do not find any merit in the present appeal and, accordingly, dismiss the same with costs. Appeal dismissed.