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2006 DIGILAW 4540 (PNJ)

Jawala Singh v. Basta Singh Deceased By L. Rs.

2006-12-22

RAJIVE BHALLA

body2006
Judgment 1. By way of the present Regular Second Appeal, the appellant impugns the judgment and decree, dated 31-10-1980, passed by the learned Additional District Judge, Patiala, whereby an appeal, filed by the defendants/respondents was accepted and the judgment and decree, dated 22-7-1976, passed by the learned Sub-Judge Ist Class, Bassi was set aside. 2. Vide judgment, dated 8-12-2000, this appeal was accepted and the judgment and decree of the first appellate Court, was set aside and the judgment and decree, passed by the trial Court, was restored. 3. The respondents herein preferred Civil Appeal No. 1023 of 2002 before the Hon ble Supreme Court of India. Vide order dated 19-9-2005, the Hon ble Supreme Court of India set aside the judgment of this Court, restored the Regular Second Appeal, and remitted the matter to be decided afresh, after formulating necessary questions of law. 4. A perusal of the record, as also the impugned judgments, in my considered opinion, raise the following substantial questions of law :- (i) Whether the judgment and decree, passed by the first appellate Court, are perverse for failure to notice the lack of pleadings and evidence in support of the plea of adverse possession? (ii) Whether a defendant, raising a plea of possession, with the consent of the true owner, can put-forth a claim of ownership by adverse possession? (iii) Whether mere long established possession, is sufficient to accept a plea of ownership by adverse possession? A brief narrative of the factual matrix of the present case would be appropriate. The appellant herein filed a suit for possession, pleading that he was the sole surviving heir of one Ludan Singh son of Kabul Singh, who passed away issueless. Ludan Singh was owner of land, measuring 9 Bighas 10 Biswas, comprised in Khasra No. 41, and Khewat/Khata No. 46/77, situated in village Khalas Pur Tehsil Sirhind, as reflected in the Jamabandi for the year 1969-70. It was further pleaded that the defendants (respondents herein), had no right, title or interest, in the aforementioned property but had manipulated the revenue record to reflect their names, as owners, 5 to 6 years ago. 5. The respondents resisted the suit and specifically pleaded that they had become owners of the suit land, by way of a mutual exchange. They exchanged the land, subject-matter of the suit, with Ludan Singh, for their land in village Mulanpur. 5. The respondents resisted the suit and specifically pleaded that they had become owners of the suit land, by way of a mutual exchange. They exchanged the land, subject-matter of the suit, with Ludan Singh, for their land in village Mulanpur. A mutation reflecting this exchange was sanctioned on 30-4-1966 at the behest of Ludan Singh. In the alternative, however, they pleaded that if mutual exchange was not established, they had become owners by adverse possession. They also denied any relationship between the appellant and Ludan Singh. The appellant rebutted these pleadings by way of replication. 6. The learned trial Court framed the following issues :- "1. Whether the plaintiff is the nearest heir? OPP 2. Whether the defendants have exchanged their property with the suit property of Ludan Singh and if so, with what property, the property in dispute was exchanged? OPD 3. Whether defendants have become owners of the suit land through adverse possession for more than 12 years? 4. Relief." 7. The parties led evidence and upon conclusion thereof, the learned trial Court decreed the suit. On issue No. 1, the appellant was held to be the nearest heir of Ludan Singh, deceased. On issue No. 2, the learned trial Court recorded a categoric finding that no exchange was proved or established. On issue No. 3, the learned trial Court held that evidence, adduced by the respondents, was insufficient to hold that they had become owners of the land in dispute, by way of adverse possession. It was held that the respondents had failed to establish the attributes of adverse possession, namely, the date, they entered possession, the nature of their possession, whether it was open, hostile, undisturbed, to the knowledge of Ludan Singh etc. It was also held that as per the case, set out by the respondents and as reflected in the revenue record, they were in possession, pursuant to an alleged mutual exchange, and, therefore, did not intend to hold the property, in any manner, adverse to the rights of Ludan Singh. 8. Aggrieved by the aforementioned judgment, the respondents filed an appeal before the Additional District Judge, Patiala. Vide judgment and decree, dated 31-10-1980, the first appellate Court accepted the appeal, set aside the judgment and decree, passed by the learned trial Court and dismissed the suit. The findings, returned by the trial Court, on issues Nos. 8. Aggrieved by the aforementioned judgment, the respondents filed an appeal before the Additional District Judge, Patiala. Vide judgment and decree, dated 31-10-1980, the first appellate Court accepted the appeal, set aside the judgment and decree, passed by the learned trial Court and dismissed the suit. The findings, returned by the trial Court, on issues Nos. 1 and 2, were upheld, namely, the findings with respect to relationship of the appellant with the deceased and that the respondents had failed to establish any exchange. However, by placing reliance upon the entries in the khasra girdawaris, commencing from 1958, the first appellate Court held that as the suit had been filed in 1972, and the suit land had been excluded from a gift deed, executed by the deceased, in favour of the plaintiff, it was apparent that the respondents possession was open, hostile, uninterrupted, to the knowledge of Ludan Singh and, therefore, the defendants had become owners of land in dispute by adverse possession. 9. Counsel for the appellant contends that the first appellate Court erred in law and in fact by accepting the appeal, reversing the judgment and decree, passed by the trial Court, and dismissing the suit. It is argued that as the first appellate Court upheld the findings, returned by the trial Court, that the respondents had failed to establish their ownership, pursuant to a mutual exchange, the plea raised that the respondents had become owners by way of adverse possession, should not have been accepted. The first appellate Court ignored well established principles of law, that govern a plea of adverse possession. It is contended that once an individual claims to have entered possession, and become owner pursuant to a mutual exchange, he cannot thereafter set up a plea of adverse possession. By pleading ownership, derived from a mutual exchange, the respondents claim to be in possession under a valid title and, therefore, the essential ingredients of adverse possession, namely, intention to hold property, in circumstances adverse to the rights of the true owner, necessarily stand negated. In the absence of intention to hold the property in circumstances adverse to the rights of a true owner, mere possession, howsoever long, cannot fructify into ownership by adverse possession. In the absence of intention to hold the property in circumstances adverse to the rights of a true owner, mere possession, howsoever long, cannot fructify into ownership by adverse possession. It is further argued that the plea of ownership, by adverse possession, raised as an alternative to the plea of ownership by mutual exchange, being contradictory and destructive thereof, could not have been accepted by the first appellate Court. The respondents could either be owners, pursuant to an exchange i.e. by a valid title or owners by adverse possession, but not both. It is further argued that the evidence produced by the respondents in support of their plea of adverse possession does not support the findings, returned by the first appellate Court. The depositions of DW 2-Ram Singh and DW 3-Gulzar Singh clearly disclose that these witnesses admit that the land in dispute was exchanged by Chanan Singh and Basta Singh and they were in possession with the consent of Ludan Singh, who was blind. Ex. D5, a copy of Khatoni Moraba Bandi shows that Ludan Singh alias Lachman Singh son of Kabal Singh was joint owner of land with Basta Singh etc. Ex. D6, a copy of Jamabandi for the year 1959-60 reveals that Ludan Singh alias Lachman Singh was owner of land to the extent of 9 bighas and 10 biswas and this land was cultivated by Chanan Singh as "Gair Marusi Bila Lagan Bawaja Tabadla". This entry is reflected in Ex. D7, a copy of the Jamabandi for the year 1963-64. However, as the respondents failed to establish ownership by way of mutual exchange as concurrently held by the Courts below, the first appellate Court committed an error in law, by accepting the plea of adverse possession, on the sole basis of long uninterrupted possession, as reflected in the revenue record. The first appellate Court ignored the depositions by the respondents and their witnesses, the entries in the revenue record and, therefore, the judgment is perverse, contrary to law and, thus, liable to be set aside. The first appellate Court ignored the depositions by the respondents and their witnesses, the entries in the revenue record and, therefore, the judgment is perverse, contrary to law and, thus, liable to be set aside. It is further argued that as the respondents have failed to establish the ingredients of adverse possession i.e. open, undisturbed and hostile possession, to the knowledge of Ludan Singh without his consent and with an intention to hold the property, in circumstances, adverse to his proprietary and possessory rights, the present appeal be accepted and the judgment and decree, passed by the first appellate Court be set aside. 10. For the above proposition, reliance is placed upon Annasaheb Bapusaheb Patil and others V/s. Balwant alias Balasaheb Babusaheb Patil (dead) by L. Rs. and heirs and others (1995) 2 SCC 543 : AIR 1995 SC 895, Vidya Devi alias Vidya Vati (dead) by L. Rs. V/s. Prem Prakash and others, (1995) 4 SCC 496 : AIR 1995 SC 1789 and Abubakar Abdul Inamdar (dead) by L. Rs. and others V/s. Harun Abdul Inamdar and others (1995) 5 SCC 612 : AIR 1996 SC 112. 11. Counsel for the respondents, on the other hand, contends that the judgment and decree, passed by the first appellate Court, are valid and legal, and do not suffer from illegality or perversity. It is contended that no question of law, much less a substantial question of law, arises for consideration in the present appeal. The first appellate Court has returned a finding of fact that the respondents were in possession of the land in dispute to the knowledge of Ludan Singh since 1958, whereas the suit was filed in 1972. The first appellate Court rightly held that as an exchange was contemplated and the land in dispute was excluded from the gift deed, executed by the deceased, in favour of the appellant, the possession of the respondents, over the suit land, for more than 12 years, being open, uninterrupted, hostile, and to the knowledge of the true owner, the respondents had become owners by way of adverse possession. It is contended that this finding of fact does not call for any interference. The evidence on record, namely, the revenue record and the depositions of the witnesses, produced by the respondents, support the aforementioned finding. It is contended that this finding of fact does not call for any interference. The evidence on record, namely, the revenue record and the depositions of the witnesses, produced by the respondents, support the aforementioned finding. The fact that the respondents claimed ownership by way of a mutual exchange, is insufficient to discard their plea of having perfected their title by way of adverse possession. This alternative plea of adverse possession was available to the respondents and was, thus, rightly accepted by the first appellate Court. The respondents were in possession since 1958, though pursuant to a mutual exchange. However, as open and uninterrupted possession, to the knowledge of the true owner has been established, the first appellate Court rightly held that this possession had ripened into ownership and, thus, rightly set aside the judgment and decree, passed by the trial Court. 12. I have heard learned counsel for the parties and perused the paper book, as also the evidence. 13. Before proceeding to adjudicate the present appeal, it would be necessary to examine the nature of a plea of adverse possession, the eventuality and manner in which such a plea is to be raised, and the evidence required to establish such a plea. A plea of adverse possession arises where a person alleges long established, hostile, open and uninterrupted possession, to the knowledge of the true owner. The possession must be with intent, express or implied to hold the property in denial of the legal rights of the true owner. A successful plea of adverse possession must be adequate, in continuity, in publicity and in intent. Possession of property, howsoever long, without the knowledge of the true owner, or without intent to hold it adverse to the title of the true owner would negate such a plea. One who holds possession on behalf of another or with another s consent or under title or assumed title, derived from another, cannot assert rights adverse to the title of the true owner. Thus, a plea of adverse possession is, in essence, a plea of ouster of title of the owner and the vesting thereof in another. 14. In order to establish a plea of adverse possession, the ingredients referred to hereinabove, must be specifically pleaded and thereafter strictly established by cogent and unimpeachable evidence. 15. Thus, a plea of adverse possession is, in essence, a plea of ouster of title of the owner and the vesting thereof in another. 14. In order to establish a plea of adverse possession, the ingredients referred to hereinabove, must be specifically pleaded and thereafter strictly established by cogent and unimpeachable evidence. 15. A perusal of the written statement, filed by the respondents, prima facie, reveals a plea of ownership, based upon a legal and valid mutual exchange, allegedly evidenced by an entry in the mutation register, dated 30-4-1966 i.e. transfer of ownership with consent of the true owner, namely, Ludan Singh. This plea of ownership, asserted in the affirmative, was followed by a plea of ownership by adverse possession, asserted in the alternative. A plea, in the affirmative, asserting title, pursuant to a valid transfer, in the present case transfer by a mutual exchange, necessarily inheres a plea of ownership, by a valid consensual transfer of title, by the true owner, to the person, asserting title thereunder. As noticed herein above, a plea of adverse possession, whether raised in the alternative or in the affirmative, is a plea of open, uninterrupted, long established possession, to the knowledge of the true owner but without his consent or concurrence, express or implied. A significant difference between a plea of ownership, pursuant to a valid title by transfer and a plea of adverse possession, is the absence, in the latter, of any consent on the part of the true owner. Thus, where a party pleads ownership and possession with the consent of the true owner, such a plea negates the plea of adverse possession, as possession with the consent of the true owner renders such possession permissive and not adverse. Where ownership and possession is pleaded, with the consent of true owner, possession, howsoever long, would not fructify into ownership by adverse possession. 16. The first appellate Court, while reversing the finding on issue No. 3, proceeded to hold that failure to establish, ownership and possession, pursuant to the plea of mutual exchange, would not oust the plea of adverse possession. It held that as the respondents were undisputedly in possession, for a period of 12 years prior to the filing of the suit, they had become owners, by way of adverse possession. It held that as the respondents were undisputedly in possession, for a period of 12 years prior to the filing of the suit, they had become owners, by way of adverse possession. A relevant extract of the impugned judgment reads as follows :- "xx xx xx xx xx xx The defendants are admittedly in possession of the land in suit. Khasra girdawari indicates that they are in possession since 1958 whereas the suit was filed in 1972. There is no documentary evidence to show that these entries are incorrect. It is proved that the transaction of exchange at once was contemplated. The land in suit is excluded from the gift deed executed by the deceased in favour of the plaintiff. Although the transaction of exchange was not completed the possession of the defendants over the land in suit by reason of the incomplete transaction of exchange is indisputable. In the result, I reverse the finding of the trial Court on issue No. 3 and hold that the defendants being continuously in possession of the land in suit for more than 12 years, that this possession being open, uninterrupted and to the knowledge of the owner was hostile to him and that the defendants had, therefore, become owners of the land in dispute by adverse possession. The appeal consequently succeeds and is hereby allowed. The decree of the trial Court is set aside." 17. The first appellate Court appears to have committed a serious error in law by ignoring a significant aspect of the law, as regards adverse possession. It failed to take into consideration the pleadings, and the evidence, adduced in support thereof. A perusal of the pleadings and the evidence adduced, by the respondents, discloses a specific plea of possession, pursuant to a mutual exchange, with Ludan Singh, the true owner. Thus, the respondents, pleaded possession with the consent of the true owner. It would also be necessary to notice here that DW2-Ram Singh admitted that the land was cultivated by Chanan Singh and Basta Singh, with the consent of Ludan Singh. DW3 Gulzar Singh stated that Chanan Singh and Basta Singh were in possession of the suit land with the consent of Ludan Singh. These statements clearly establish that the respondents were in possession of the land in dispute, with the consent of Ludan Singh and were cultivating it with his consent. DW3 Gulzar Singh stated that Chanan Singh and Basta Singh were in possession of the suit land with the consent of Ludan Singh. These statements clearly establish that the respondents were in possession of the land in dispute, with the consent of Ludan Singh and were cultivating it with his consent. Thus, as the respondents pleaded possession with the consent of the true owner, their possession was at best permissive. They had no intention to hold the property, in circumstances, adverse to the rights of Ludan Singh. Their possession was at best permissive, under an alleged exchange which they failed to establish. The first appellate Court, while reversing the findings, returned by the trial Court, failed to peruse the oral depositions of witnesses, produced by the respondents and ignored the fact that the respondents claimed to be in possession, with the consent of Ludan Singh. A person, who claims adverse possession, must establish, by cogent and plausible evidence, the date he came into possession, the nature of his possessions etc. However, as noticed herein- above, the evidence adduced, which includes the revenue record does not disclose that the respondents were in open, undisturbed and hostile possession to the knowledge of Ludan Singh, with an intention to hold the property in any manner adverse to the rights of Ludan Singh. Their positive case was that they were in possession with the consent and knowledge of Ludan Singh. Even the revenue record, relied upon by the first appellate Court, records "Gair Marusi Bila Lagan Bawaja Tabadla" i.e. ownership and possession, pursuant to a mutual, consensual exchange between the respondents and the true owner, namely, Ludan Singh. The first appellate Court, thus, erred in law by holding that failure to establish ownership, pursuant to the plea of mutual exchange would, in the alternative, confer ownership, by adverse possession, the respondents being in possession since 1958. Possession, with the consent of a true owner, howsoever long, cannot fructify into ownership by way of adverse possession. This fundamental error of law, by the first appellate Court, and its failure to correctly peruse the pleadings and the evidence, renders its judgment and decree null and void, as regards issue No. 3. Consequently, the findings, returned by the first appellate Court, on issue No. 3 are reversed and those of the trial Court, are restored. 18. This fundamental error of law, by the first appellate Court, and its failure to correctly peruse the pleadings and the evidence, renders its judgment and decree null and void, as regards issue No. 3. Consequently, the findings, returned by the first appellate Court, on issue No. 3 are reversed and those of the trial Court, are restored. 18. In view of the what has been held hereinabove, the present appeal is allowed, the judgment and decree, passed by the first appellate Court are set aside, and that of the trial Court restored. 19. No order as to costs.