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2010 DIGILAW 1223 (HP)

Jiwanu Ram v. Tara Devi

2010-11-18

DEEPAK GUPTA

body2010
JUDGMENT Deepak Gupta, J. 1. This appeal was admitted on the following substantial questions of law:- 1. Whether in view of the clear plea of adverse possession having been set up way back on 16.7.1978 in Civil Suit No. 69/78 which was dismissed by the trial Court and the appeal against which was withdrawn by the defendant the plaintiffs' plea of adverse possession by setting up a hostile, open and clear title of ouster of the true owners was established? 2. Whether the pleadings of the parties and evidence on record, particularly Ex.PW-4/B and Ex.PB, the written statement and judgement ill the previous case have been misread and misconstrued and the finding that the possession of the plaintiff was permissive is sustainable in law? 2. The short question which arises in this appeal is on which date the permissive possession becomes hostile. 3. The undisputed facts are that Shri Narain Singh, predecessor-in-interest of the respondents filed Civil Suit No. 69 of 1978 (Ext.PW-4/A) in the Court of Sub Judge, Sundernagar, District Mandi against Shri Jiwanu Ram, predecessor-in-interest of the present appellants. In this suit Narain Singh averred that he is in possession of the suit land and defendant Jiwanu Ram be restrained from interfering in his possession over the same. This suit was instituted on August, 1978. Jiwanu Ram filed written statement (Ext.PW-4/B) which is dated 9th October, 1979. In this written statement a specific plea was taken that Jiwanu Ram is in possession of the suit property. Jiwanu Ram further claimed that he had been in possession of the said property for more than 40 years and therefore, he had become owner by way of adverse possession. In this written statement it was specifically pleaded that the possession of the defendant over the suit land is open, hostile and adverse to the plaintiff. This suit was decided vide judgement (Ext.PB) dated 9.1.1984. The suit was dismissed because it was found that the defendant is in possession of the suit property. The learned Court however, found that the possession of the defendant was permissive and came to the conclusion that the defendant had failed to prove from which date his possession had become hostile. 4. The suit was dismissed because it was found that the defendant is in possession of the suit property. The learned Court however, found that the possession of the defendant was permissive and came to the conclusion that the defendant had failed to prove from which date his possession had become hostile. 4. Aggrieved by the said judgement, Narain Singh filed an appeal in the Court of the learned District Judge, Mandi but this appeal was withdrawn on the ground that since the defendant Jiwanu Ram had been found to be in possession of the suit land, the plaintiff Narain Singh would file a fresh suit for possession of the suit property. It appears that despite this statement, Narain Singh never filed a suit for possession. 5. In fact, Jiwanu Ram instituted Civil Suit No. 189 of 1990 on 6.11.1990 claiming that his adverse possession had matured into ownership. The period of adverse possession was claimed from the date of institution of the earlier civil suit tiled by Narain Singh i.e. 16.8.1978. The learned trial Court decreed the suit but the learned lower Appellate Court allowed the appeal filed by Narain Singh and came to the conclusion that for calculating the period of adverse possession it would start only from the date when it was found that the title was claimed to be hostile to the true owner. According to the learned lower Appellate Court the limitation would start from the date when the first suit filed by Narain Singh was dismissed in the year 1984. This judgement is under challenge before me. 6. I am of the opinion that both the Courts below have erred ill fixing the date from which the claim of Jiwanu Ram for counting his adverse possession was to begin. The learned trial Court erred in holding that this period would commence from the date of institution of the first suit. There is no material on record to show that when the first suit was instituted by Narian Singh, Jiwanu Ram had claimed adverse possession. Even the learned lower Appellate Court erred in holding that the commencement of the hostile claim will begin from 9.1.1984 i.e. the date when earlier suit was filed. The learned lower Appellate Court totally lost sight of the fact that in the written statement Ext. Even the learned lower Appellate Court erred in holding that the commencement of the hostile claim will begin from 9.1.1984 i.e. the date when earlier suit was filed. The learned lower Appellate Court totally lost sight of the fact that in the written statement Ext. PW-4/B filed on 9th October, 1979 Jiwanu Ram had clearly set up a claim that he was the owner of the land and had in clear cut terms claimed that his possession over the suit land was open, hostile and adverse. From this date, at least, if not earlier, he was claiming ownership adversely to the true owner and his possession from this date at least would be hostile. Therefore, the adverse title would mature into ownership only on completion of 12 years from 9th October, 1979 i.e. in October 1991. The present suit was filed in the year 1990 and at the time when the suit was filed the adverse possession had not matured into title. 7. It is urged on behalf of the appellant that by now this title has matured into adverse possession. I cannot decide this issue because I have been informed at the bar that the respondent Narain Singh/his legal representatives have filed a suit for possession. If the suit for possession has been filed before the ownership had matured into title obviously true owner can claim possession but if that suit had been tiled after that date obvious consequences shall follow. 8. The appeal is, therefore, dismissed but it is clarified that the adverse possession of the appellant begins from 9th October. 1979 the date when he clearly asserted before the trial Court in his written statement that he had become owner of the suit land by way of adverse possession. No costs.