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2004 DIGILAW 735 (PNJ)

Satpal And Ram Parkash Sehgal v. Karnail Singh

2004-07-21

J.S.NARANG

body2004
Judgment J.S.Narang, J. 1. The plaintiff-appellant filed the present suit against the defendant for possession of land measuring 3 Bighas and 15 Biswas bearing khewat No. 69, khatoni No. 138 in Khasra No. 1106 situated at village Bauran Kalan, Tehsil Nabha District Patiala. As per the jamabandi for the year 1973-74, the plaintiff has been shown the owner of the land measuring 42 bighas, 11 biswas comprised in khewat and khatoni numbers as spelt out in the heading of the plaint which includes the area in question i.e. 3 bighas, 15 biswas. It has also been stated that the land of the defendant adjoins the land of the plaintiff and, therefore, taking advantage of this fact, he encroached upon the land belonging to the plaintiff measuring 3 bighas and 15 biswas as stated above. The plaintiff-appellant requested the defendant to deliver back the possession but no response was received accordingly, which amounted to refusal by the defendant. Thus, the suit for possession was filed. 2. The defendant resisted the suit and filed detailed submissions to the pleadings of the plaintiff. He has specifically claimed by way of additional plea that he has become the owner of land comprised in Khasra No. 1106 measuring 3 bighas and 15 biswas by virtue of adverse possession, therefore, the plaintiff has no locus standi to file the suit for possession. 3. Upon the pleadings of the parties, the issues had been struck and that the parties led ocular as well as documentary evidence in support of their pleas and so also to prove the issues the onus of which had been casted upon them respectively. An issue with regard to acquisition of ownership by adverse possession by the defendant has been specifically claimed and the same has been defined as issue No. 4, which reads as under:- "Whether the defendant has become owner of Khasra No. 1106 by adverse possession? OPD" 4. The trial Court has given a categoric finding that the plaintiffs are the owners of the land in dispute. It has also been found as a matter of fact that the defendant has encroached upon the land in question. A report of Local Commissioner had also been submitted and that placing reliance thereon the aforestated finding has been returned by the trial Court. It has also been found as a matter of fact that the defendant has encroached upon the land in question. A report of Local Commissioner had also been submitted and that placing reliance thereon the aforestated finding has been returned by the trial Court. The issue regarding limitation and acquisition of ownership by the defendant by virtue of adverse possession have been dealt with together. It has been found as a matter of fact that pursuant to the earliest khasra girdawari for the year 1963-64, possession of the defendant over the suit land stands established. However, the claim of adverse possession of the defendant has not been accepted by the trial court as it has been held that the suit filed by the plaintiff is primarily based on title and, therefore, the limitation of the suit would be governed by Article 65 of the Limitation Act and that the suit has been filed for possession within 12 years, which is obviously within the limitation, Resultantly, the suit filed by the plaintiff-appellant had been decreed vide judgment and decree dated 10.8.1978. 5. The defendant-respondent being dissatisfied with the aforestated judgment and decree filed an appeal before the lower appellate Court but the finding on issue No.l has been affirmed subject to the decision on issue Nos. 2, 3 and 4. It has been noticed that the plaintiff stepped into the witness box as PW3 and has stated that the defendant-re- spondent took possession of the land forcibly about three years ago. On the contrary, the defendant appeared as his own witness as DW1 and has asserted that he had come into possession of the suit land since 1952-53 and that he has been exercising his right of ownership of the suit land since then. He has placed reliance upon the copies of the revenue record pertaining to the year 1963-64, 1968-69 and 1973-74, which have been exhibited as Exs.D2, D3 and D4 respectively. The possession of the defendant-respondent upon the suit land stands corroborated accordingly and the factum of continuous possession since about June 1963, has also been claimed and sought to be proved by virtue of the aforestated revenue record. It has also been pleaded that the suit had been filed on 20.11.1975 i.e., after the expiry of more than 12 years of his taking possession oi the land. It has also been pleaded that the suit had been filed on 20.11.1975 i.e., after the expiry of more than 12 years of his taking possession oi the land. It has also been pleaded that the possession of the defendant cannot be termed as "Hadshikni" as alleged in the plaint as the encroachment cannot be said to have been made while defining the boundary lines and in fact the entire khasra measuring 3 bighas and 15 biswas had been taken possession of and that too within and to the knowledge of the plaintiff. The entry in the jamabandis clearly defines the possession of the defendant as "Gair Marusi Kabja Ba Bila Lagan Parta Ba Wajab Kabja Khasra, Khewat". This noting has been carried out in the jamabandi for the years 1968-69 and 1973-74. The factum of cultivation of the suit land also stands corroborated from the Girdawari in the years 1974-75, 1975-76. The jamabandi also spells out the cultivating possession of the defendant-respondent. Resultantly, the lower appellate Court reversed the finding of the trial Court in respect of issue Nos. 3 and 4 and returned the finding in favour of the defendant-respondent by categorically holding that the defendant-respondent had become the owner on the basis of adverse possession and further the suit, having been filed beyond the period of 12 years, is barred by time. Thus, on both the counts the defendant-respondent has succeeded accordingly. As a sequel thereto the suit has been dismissed by the lower appellate Court. 6. The plaintiff-appellant being dissatisfied with the judgment and decree dated March 3, 1980 passed by the lower appellate Court has filed the present appeal. 7. Learned counsel for the plaintiff-appellant has argued that the only question of law which requires consideration by this Court is "whether the suit filed by the plaintiff could be dismissed on the ground of limitation?" and "whether the defendant-respondents fulfilled the necessary ingredients for claiming title by way of adverse possession?" 8. Learned counsel for the plaintiff-appellant has argued that the defendant-respondent has not been able to establish the adverse possession as the necessary ingredients that he has enjoyed the property in question continuously, openly and to the knowledge of the plaintiff and the world at large, have not been established and proved accordingly. Learned counsel for the plaintiff-appellant has argued that the defendant-respondent has not been able to establish the adverse possession as the necessary ingredients that he has enjoyed the property in question continuously, openly and to the knowledge of the plaintiff and the world at large, have not been established and proved accordingly. Since the ingredients have not been fulfilled, the finding in this regard of the lower appellate Court deserves to be set aside and that of the trial Court needs to be affirmed. 9. It has been further argued that despite the fact the defendant-respondent has claimed possession over the suit land since 1952-53 but neither the jamabandi nor khasra girdawari prior to 1963-64 has been produced. In fact, the perusal of the document i.e. jamabandi Ex.D4 shows that the plaintiffs have been shown as the owners of the suit land. If the defendant had acquired ownership by way of adverse possession claiming their possession from 1952-53, their names would have been in the column of ownership in the jamabandi for the year 1963-64 but that is not so. Since their adverse possession is not sustainable under law the claim as owner would not be sustainable. 10. He has further argued that the lower appellate Court has fallen into error in holding that the suit has been filed beyond the period as prescribed under the Limitation Act as 12 years and, therefore, deserves to be dismissed as barred by time. In fact, when the suit is based on title and that the possession is being claimed, the question of dismissing the suit by virtue of the rigour of 12 years is not sustainable. Thus, the lower appellate Court has fallen into error in dismissing the suit as barred by time. 11. In support of his pleas, he has placed reliance upon : Jagan Singh and Ors. v. Chatin Kaur and Ors., 1986 P.L.J. 142. 12. Learned Single Judge has observed that the entries in the revenue record of Gair Marusi i.e. tenant without payment of rent would show only the status of the occupant in the column of rent but this would not mean that the inference of adverse possession can be drawn. The decision rendered in Joginderpal alias Joginder Pal v. Angad Singh and Ors., (1983)85 P.L.R. 429, has been sought to be distinguished. 13. The decision rendered in Joginderpal alias Joginder Pal v. Angad Singh and Ors., (1983)85 P.L.R. 429, has been sought to be distinguished. 13. This judgment would not be applicable to the facts of the present case as the perusal of the document i.e. jamabandi in the present case shows that the entiy has not been made only Gair Marusi but he same has been defined as "Gair Marusi Kabja Ba Bila Lagan Parta Ba Wajab Kabja Khasra, Khewat". It obviously shows that the possession of the defendant-respondent has been categorically defined to be the adverse to the actual owner i.e. plaintiff-appellants. 14. In Parwatbai v. Sonabai and Ors. 1997(1) R.C.R. (Civil) 36 (S.C.), their Lordships of the Supreme Court have observed that the starting point of the adverse possession is pivotal to conclude the prescriptive title after the requisite period has expired. When the plaintiff asserts his title on the basis of succession and defendant claims title on the basis of adverse possession, it is for the defendant to prove as to on which date his possession became adverse. In the facts of that case, no date had been given and, therefore, the adverse possession could be at the most taken against the plaintiff on the date of death of their mother and that the suit had been filed by the plaintiff for possession within ten years. Resultantly, the suit had been held to be filed within lime. 15. I am afraid the dicta of the Supreme Court is not applicable in the case at hand. In the present case, the defendant-respondent has set up a categoric plea of adverse possession by way of additional plea taken in the written statement and has claimed that the defendant-respondent took the possession in the year 1952-53 to the knowledge of the plaintiff and in fact as per revenue record i.e. Jamabandi for the year 1963-64, his possession has categorically been defined as adverse to the owner. Assuming that the possession is categorically held to be adverse in favour of the defendant-respondent with effect from 1963 and that the suit has been filed beyond the period of 12 years as the same was filed on November 20, 1975 This would be clearly barred by time. Resultantly, the citation is of no help to the appellant. 16. In re: Harnam Kaur and Ors. v. Malkiat Singh and Ors., 1986 R.R.R. 61 (P&H). Resultantly, the citation is of no help to the appellant. 16. In re: Harnam Kaur and Ors. v. Malkiat Singh and Ors., 1986 R.R.R. 61 (P&H). In the above case, the claim of adverse possession was being claimed on the basis of mere possession but the factum of adverse possession could not be established. It has also been observed that the permissive possession cannot be termed to be hostile possession, unless some overt act is established and the same is to the knowledge and in derogation of ownership of true owner. Since in this case, the suit for possession had been filed on the basis of title, the plea of limitation was rightly not available to the defendant. The facts of the case at hand are entirely different as have been noticed above. Thus, this judgment is also of no help to the appellant. 17. In re: Mohinder Singh (deceased by LRs) and Anr. v. Kashmira Singh A.I.R. 1985 P&H 215. In this case, suit for possession on the basis of inheritance had been filed. The Division Bench categorically held that for establishing the right as a heir it is not required that a suit may be filed, however, a situation may arise when the heir is not in possession of the property inherited and that in that event the suit for possession may have to be filed and on contest the same may fail on the premises that the defendant proved that he had perfected his title by adverse possession. The facts in this case are entirely different. In the present case, as aforestated, the plaintiff-appellants have not set up any such kind of claim of inheritance for seeking the relief of possession against the defendant respondent. 18. In re: The Punjab Waqf Board, Ambala v. The Panchkula Deh and Anr., (1971)73 P.L.R. 224. In this case, it has been held that the suit for possession of immovable property or any interest thereon based on title would fall under Article 65 and not under Article 64 of the Schedule to the Limitation Act, however, the burden of proving the date when the defendants possession became adverse to the plaintiff is on the defendant. In this case, it has been held that the suit for possession of immovable property or any interest thereon based on title would fall under Article 65 and not under Article 64 of the Schedule to the Limitation Act, however, the burden of proving the date when the defendants possession became adverse to the plaintiff is on the defendant. There is no dispute about the aforestated proposition but in the case at hand, the plaintiff has not been able to establish that the possession of the demised premises was ever that of the plaintiff and in fact it has been claimed that the defendant-respondent took forcible possession about three years prior to the date of filing of the suit. However, no evidence worth the paper weight has been brought on record to establish such fact. On the contrary, the defendant has taken categoric plea of acquiring the title by way of adverse possession and that the same has been proved specifically by adducing documentary evidence i.e. Jamabandi from the year 1963-64 and so also the girdawaris establishing his actual, physical and cultivating possession. Thus, the aforesaid dicta is not at all applicable to the facts of the present case. 19. On the other hand, learned counsel fro the defendant-respondent has vehemently argued that the lower appellate Court has come to a categoric finding that the defendant- respondent has established the factum of adverse possession by virtue of the documentary evidence as also the oral evidence. He has further argued that the categoric additional plea taken by the defendant-respondent has not been controverted as no replication to such plea has been filed, wherein it has been categorically stated that the defendant-respondent came into adverse possession in the year 1952-53. It shall be apposite to notice the additional plea which reads as under: Additional pleas: 1. xx xx xx xx 2. The defendant is in possession of Kh. No. 1106(3-15), Khatauni No. 138, Khewat No. 69/66 per jamabandi 1973-74, situated in Village Bauran Kalan, Teh. Nabha as an exclusive owner, for a period of more than 20 years. The possession of the defendant over this K.h. No. has been continuous, open, notorious, adverse and known to the plaintiffs and the world at large as such, hence the defendant has become its owner by adverse possession. Copies of the Jamabandies for the years 1963-64, 1968-69, 1973-74 and copy of Kh. The possession of the defendant over this K.h. No. has been continuous, open, notorious, adverse and known to the plaintiffs and the world at large as such, hence the defendant has become its owner by adverse possession. Copies of the Jamabandies for the years 1963-64, 1968-69, 1973-74 and copy of Kh. Girdawari from 1969-70 upto date are attached herewith." 20. He has further pointed out that the defendant has appeared as his own witness i.e. DW-1 and that he has made a categoric statement in is exammation-in-chief that he has been in possession as owner upon the land in dispute with effect from 1952-53 and that he has been in possession continuously .Thus, as an owner he had never ever given any rent by way of Chakota or Batai. This statement of the defendant has not been demolished in any manner whatsoever. 21. It has been further argued that the suit had been admittedly filed beyond the period of 12 years as has been clearly and categorically corroborated from the evidence on record. The statement of the defendant-respondent has not been demolished that he has been in adverse possession of the demised premises for a period of more than 20 years and that his possession has been continuous, open notorious, adverse and known to the plaintiff and the world at large and thus the defendant-respondent become its owner by adverse possession. 22. Learned counsel has placed reliance upon Isham Singh v. State of Haryana and Ors. (1994-2)107 P.L.R. 542. 23. After hearing learned counsel for the parties and perusing the documentary as well as oral evidence, I am of the view that the lower appellate Court has correctly dismissed the suit filed by the plaintiff on two counts: the defendant-respondent has been able to establish the adverse possession and thereby acquiring the title by prescription. He has also been able to establish the possession since 1952-53 as the statement of the defendant-respondent has gone unrebutted. De hors of this, he has been able to produce on record the documentary evidence such as the jamabandi and girdawari the perusal of which shows that his possession was adverse to the plaintiff-appellants and, of course, to their knowledge as in the Jamabandi they have been shown as the owners. The plaintiff-appellants have not been able to show their possession three years prior to the claim as made in the plaint. The plaintiff-appellants have not been able to show their possession three years prior to the claim as made in the plaint. The plea taken is that the defendant-respondent took forcible possession three years before the date of filing of the suit. It is obvious that prior thereto, they were required to establish their possession but they have miserably failed in this contest. On the other hand, defendant-respondent has been able to show the continuity of his adverse possession, as noticed above. 24. Thus, the suit cannot be said to have been filed on the basis of title and, therefore, at best the advantage could be taken if the suit had been filed within 12 years. From the documentary evidence led, the date of adverse possession of the defendant-respondent has been established i.e. from 1963-64 and from that date also the suit has been filed beyond the period of 12 years. The cumulative reference to the evidence establishes that the defendant-respondent had admittedly come into adverse possession since 1952-53 and that his possession had not been questioned in any manner by the plaintiffs as no evidence in this regard has been brought on record. It is nowhere the plea of the plaintiffs that they had acquired the ownership by way of inheritance. The plain and simple plea is that the plaintiffs are the owners of the land in question. Thus, in view of the non-descriptive pleas of the plaintiffs the stand of the defendant-respondent could not have been ignored and that the lower appellate Court has, therefore, correctly accepted the plea of adverse possession as set up by the defendant-respondent. 25. It is the settled law that the title acquired by way of prescription should be based upon the possession which is hostile, actual, open, uninterrupted, notorious, exclusive, continuous and for a statutory period of 12 years. In the case at hand, all these ingredients have been duly fulfilled by the defendant-respondent while claiming the title by adverse possession. It is the admitted case between the parties that the defendant-respondent had taken possession of the suit land i.e. 3 bighas and 15 biswas to the knowledge of the plaintiff since 1952-53 as the land beyond the suit land continued to be in possession of the plaintiff-appellants as the total land claimed to be was 42 bighas and 11 biswas. It is the admitted case between the parties that the defendant-respondent had taken possession of the suit land i.e. 3 bighas and 15 biswas to the knowledge of the plaintiff since 1952-53 as the land beyond the suit land continued to be in possession of the plaintiff-appellants as the total land claimed to be was 42 bighas and 11 biswas. It is obvious that the plaintiffs were in possession of the aforestated land minus the suit land to their knowledge and that the possession of the defendant-respondent has been continuous, exclusive, notorious, open and uninterrupted and, of course, for a period of more than 12 years. 26. In view of the above, I do not find any legal infirmity in the judgment and decree rendered by the lower appellate Court vide which the suit filed by the plaintiff-appellant has been dismissed. 27. Learned counsel for the appellant has not been able to advance meaningful arguments to convince that the suit filed by the plaintiff could not be dismissed on the ground of limitation. He has also not been able to address arguments to demolish the non-fulfillment of the ingredients for establishing he claim of the title by way o adverse possession by the defendant-respondent. Thus, on both the questions my answer is in the negative and in favour of the defendant-respondent. 28. Resultantly, I find no merit in the appeal and the same is dismissed with no order as to costs.