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1996 DIGILAW 118 (HP)

TILAK RAJ v. BHAGAT RAM

1996-07-01

R.L.KHURANA

body1996
JUDGMENT R. L. Khurana, J.—This is the plaintiffs" Second Appeal against the judgment and decree dated 22nd February, 1988 of the Additional District Judge (I), Kangra at Dharamshala, affirming the judgment and decree dated 21st January, 1985 of the Sub-Judge (III) Class (II), Nurpur. 2. The subject-matter of dispute between the parties is the land measuring 0-35-59 Hectares of Mohal Nadoli, Tehsil Nurpur, District Kangra, detailed in the plaint and Khatoni Bandobast Jadid Sani for the year 1982-83 and hereinafter referred to as the land in dispute. 3. The plaintiffs on the basis of their title filed a suit for possession of the land in dispute. It was averred that the parties jointly owned and possessed land in Mohal Nadoli. Such joint land came to be partitioned between the parties. The land in dispute came to the share of the plaintiffs and they came into exclusive possession thereof consequent upon the partition. During the course of settlement proceedings, the defendant in the month of July 1981 took forcible possession of the land in dispute and in connivance with the settlement staff got himself recorded as in possession thereof as Kabiz’. The defendant on having been repeatedly called upon to handover the possession of the land in dispute to the plaintiffs, has failed and refused to do so. 4. The defendant, while resisting the suit, admitted that earlier the parties owned joint land and that partition of such joint land took place. It was pleaded that since after such partition, he has been coming in adverse possession of the land in dispute and thus have acquired title to the land in dispute by virtue of his adverse possession for the last more than twelve years. Objections as to locus standi of the plaintiffs and the suit being barred by time were further raised. 5. On the pleadings of the parties, following issues were framed by the learned trial Court : 1. Whether defendant has encroached upon the suit land as alleged ? OPP 2. Whether the defendant has become owner of the suit land as way of adverse possession ? OPD 3. Whether the suit is time barred ? OPD 4. Whether the plaintiffs have no locus standi ? OPD 5. Relief. Issue No. 1 was found against the plaintiffs, while issues No 2 to 4 were decided in favour of the defendant. Whether the defendant has become owner of the suit land as way of adverse possession ? OPD 3. Whether the suit is time barred ? OPD 4. Whether the plaintiffs have no locus standi ? OPD 5. Relief. Issue No. 1 was found against the plaintiffs, while issues No 2 to 4 were decided in favour of the defendant. The learned trial Court held that the defendant had acquired title qua the land in dispute by virtue of his adverse possession for more than twelve years The suit was held to be time barred and the plaintiffs were held to be having no locus standi to file the suit. Consequent upon such findings, the suit of the plaintiffs was dismissed vide judgment and decree dated 21st January, 1985. 6. The appeal carried to the lower appellate Court by the plaintiffs was dismissed vide the impugned judgment and decree dated 22nd February, 1988. The first appellate Court affirmed the findings of the trial Court on all the issues. 7. The present Second Appeal was admitted on the following substantial question of law : "Whether in the circumstances found by the courts below the possession of the defendant-respondent No. 1 could be treated to be adverse in character without any finding that it was of a hostile nature.” 8. I have heard the learned Counsel for the parties and have also gone through the record of the case. 9. It is the admitted case of the parties that the parties held land jointly and that such joint land came to be partitioned. It is also not disputed that the land in dispute came to the share of the plaintiffs. The case of the plaintiffs is that after partition, they came into possession of the land but the defendant took forcible possession thereof in July 1981 during the settlement proceedings. The defendant, on the other hand, has averred in para 2 of his written statement to the following effect "That the land was joint with the plaintiffs but the same remained under exclusive possession of the defendant and even after partition, the plaintiffs never came into possession of the suit land and the same remained in possession of the defendant uninterruptedly, exclusively in possession of the defendant, to the knowledge and ouster of the plaintiffs. As such, the defendant had become owner by adverse possession.” 10. As such, the defendant had become owner by adverse possession.” 10. The present suit is for possession on the basis of title. Article 63, Limitation Act, 1963, governs the present case. It provides that for possession of immovable property or any interest therein based on title, the limitation of twelve years begins to run from the date of the defendants interest becomes adverse to the plaintiff 11. It is well settled that adverse possession means a hostile assertion, that is, a possession which is expressly or impliedly in denial of title of true owner. 12. It is also well settled that a person who bases his title on adverse possession must plead and prove by clear and unequivocal evidence, that is, possession was hostile to the real owner and amounted to denial of his title to the property claimed. In deciding whether the acts of the defendant constitute adverse possession, regard has to be had to the animus of such defendant which has to be ascertained from the facts and circumstances of each case. 13. It is equally well settled that mere possession for howsoever long a period is not enough to claim title inasmuch as the possession has to be adverse. 14. In Liaq Mohammad v D. D. A. and others, AIR 1994 NOC (Delhi) 35, it has been held that a suit for possession based on title, where plea of adverse possession has been raised, would not be barred by limitation on the ground that it has been filed after the expiry of twelve years from the date of dispossession. 15. Equally, it can be said that once the defendant has failed to establish his adverse possession for the statutory period, a suit for possession based on title cannot be dismissed as being time barred on the ground that the same was filed after the expiry of twelve years from the date of dispossession. The defendant, in the present case, while appearing as DW 1 has stated that he is coming in possession of the land in dispute for the last 18/ 19 years and that the plaintiffs have never been in possession thereof. He has further stated that the plaintiffs had never objected to his possession nor he had at any time paid rent to them. He has further stated that the plaintiffs had never objected to his possession nor he had at any time paid rent to them. It is nowhere in the statement of the defendant that his possession was hostile to the plaintiffs in denial of their title and to their knowledge. 16. Similarly, DW 2 Jeewan Parkash, has merely stated that he has been seeing the possession of the defendant over the land in dispute for the last 18 to 20 years. 17. The evidence led by the defendant does not make out a case of adverse possession. Even if the possession of the defendant over the land in dispute is admitted to be for the last 18/19 years, he cannot be held to have acquired title thereto in the absence of evidence that his such possession was of a hostile nature amounting to denial of the title of the plaintiffs. 18. There is yet another significant aspect of the case. The defendant as DW 1 has admitted that Dulo Rani, who admittedly, was the predecessor-in-interest of the present plaits tiffs, was in self-cultivatory possession of his land during his life time. The said Dulo Ram, as per DW 1, died sometime in the year 1979-80. Assuming the defendant came into adverse possession after the death of the said Dulo Ram, his such adverse possession falls short of the requisite statutory period of twelve years since the suit was filed on 10th October, 1983. 19. The two courts below, therefore, have gravely erred in holding that the defendant is coming in adverse possession of the land in dispute for the last more than twelve years and that he has become the owner thereof. Such findings are bad and cannot be sustained. 20. As a result, the present appeal is allowed. The judgments and decrees of the two courts below are set aside and a decree for possession of the land in dispute is passed in favour of the plaintiffs and against the defendant with costs throughout. Appeal allowed.