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2014 DIGILAW 571 (HP)

Gian Singh Deshta v. State Of Himachal

2014-05-13

SANJAY KAROL

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JUDGMENT : Sanjay Karol, J. This regular second appeal stands filed under Section 100 of the Code of Civil Procedure. Plaintiff has challenged concurrent findings of fact. 2. Plaintiff Sh. Gian singh Deshta (appellant herein) filed a suit seeking declaration of having perfected his title over the suit land by way of adverse possession. 3. Based on the pleadings of parties, trial Court framed the following issues:- "1. Whether the plaintiff has become owner of the suit land by way of adverse possession? OPP 2. Whether the order dated 20.4.1996 of D.F.O. Rohru and order dated 24.7.1996 of Commissioner, Shimla are without jurisdiction and illegal to be declared as null and void? OPP 3. Whether the plaintiff is entitled for relief of permanent injunction as prayed for? OPP 4. Whether the plaintiff has no cause of action to file present suit? OPD 5. Whether the suit of the plaintiff is not maintainable in the present form? OPD 6. Whether this Court has no jurisdiction to try and entertain the present suit? OPD 7. Whether the suit is bad for compliance of Section 80 CPC? OPD 8. Whether the suit is barred by limitation? OPD 9. Whether the suit of plaintiff is hit by provision of Section 41 of Specific Relief Act? OPD 10. Relief." 4. Appreciating the evidence so placed on record and not finding favour with the plaintiff's contention, trial Court dismissed the suit vide judgment and decree dated 18.9.2001, passed in Civil Suit No. 74-I of 2000/97, titled as Gian Singh Deshta v. State of Himachal Pradesh & another. Except for issues No. 6, 7, 8 and 9, all other issues stand decided against the plaintiff. 5. Findings of fact, judgment and decree stands affirmed by the lower appellate Court vide judgment and decree dated 14.6.2002, passed in Civil Appeal No. 146-S/13 of 2001, titled as Gian Singh Deshta v. State of Himachal Pradesh & another. 6. Hence, the present appeal, which was admitted on the following substantial questions of law:- "1. Whether, in the facts and circumstances of this case, Civil Courts, in view of the provisions of Sections 9 and 10 of the Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act, 1971, will have jurisdiction to entertain the suit? 2. 6. Hence, the present appeal, which was admitted on the following substantial questions of law:- "1. Whether, in the facts and circumstances of this case, Civil Courts, in view of the provisions of Sections 9 and 10 of the Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act, 1971, will have jurisdiction to entertain the suit? 2. Whether the impugned judgment and decree of the trial Court as affirmed by the first appellate Court is result of non-consideration of the material evidence on record." 7. Having heard learned counsel for the parties and also perused the record, I am of the considered view that no ground for interference is made out in the present appeal. 8. The Courts below, concurrently held the plaintiff not to have established his uninterrupted and continuous possession over the suit land, hostile to that of its true owner. Significantly land belongs to the State of Himachal Pradesh. It is a forest land. F.I.R. in relation to the alleged encroachment carried out by the plaintiff was also registered on the asking of the State. In the year 1996 itself, proceedings for ejectment/eviction were initiated against the petitioner. The D.F.O. - cum- Collector passed order of ejectment on 20.4.1996 which was affirmed by the Appellate Authority on 24.7.1996. Plaintiff is a mere trespasser and an encroacher. He filed the suit only after passing of these orders. 9. It is a settled position of law that mere possession for howsoever length of time does not result in converting the permissible possession into adverse possession. [Thakur Kishan Singh (Dead) v. Arvind Kumar, (1994) 6 SCC 591 ]. 10. It is also a settled position of law that once a party is able to prove its title, the onus of proof would be on the other party to prove the claims of title. [P.T. Munichikkanna Reddy and others v. Revamma and others, (2007) 6 SCC 59 ]. 11. Declaration of ownership under Section 34 of the Specific Relief Act, 1963, on the basis of adverse possession cannot be sought by the plaintiff. Claim of ownership by way of adverse possession can be made only by way of defence, when arrayed as defendant in proceedings against him. [See: Gurdwara Sahib v. Gram Panchayat Village Sirthala & another, (2014) 1 SCC 669 and Tribhuvanshankar v. Amrutlal, (2014) 2 SCC 788 .] 12. Claim of ownership by way of adverse possession can be made only by way of defence, when arrayed as defendant in proceedings against him. [See: Gurdwara Sahib v. Gram Panchayat Village Sirthala & another, (2014) 1 SCC 669 and Tribhuvanshankar v. Amrutlal, (2014) 2 SCC 788 .] 12. A person claiming adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner. All ingredients including animus dissidendi has not to be only pleaded but proved on record. [See: State of Haryana v. Mukesh Kumar and others, (2011) 10 SCC 404 ]. 13. Adverse possession does not begin to operate until title thereof over the disputed property is renounced by the true owner. [See: L. N. Aswathama & another v. P. Prakash, (2009) 13 SCC 229 ] 14. In fact the apex Court, referring to the earlier decisions rendered in Munichikkanna Reddy (supra), in Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan & others, (2009) 16 SCC 517 , directed the Union of India to consider making suitable changes in the law of adverse possession. 15. The apex Court while considering the cases where Government land is involved observed practical difficulties in keeping watch over vast tracks of open land and held that the Court is duty bound to act with greater seriousness, care and circumspection where plea of adverse possession is taken by unauthorized occupants/encroachers/land grabbers. [Mandal Revenue Officer v. Goundla Venkaiah & another, (2010) 2 SCC 461 ] 16. No doubt, plaintiff has constructed his house and planted an orchard over the forest land, but then this fact alone would not confer any right or interest upon him. In the revenue records, it is the State who is recorded as its owner. Courts below rightly held the plaintiff not to have established the factum of his possession over the suit land, hostile to that of its true owner. Acquiescence would not amount to consent or whims. 17. In the instant case, it cannot be said that the plaintiff has been able to establish the necessary ingredients required for proving the factum of having perfected his title, by way of adverse possession. Plaintiff's witnesses could not prove his case. 18. Acquiescence would not amount to consent or whims. 17. In the instant case, it cannot be said that the plaintiff has been able to establish the necessary ingredients required for proving the factum of having perfected his title, by way of adverse possession. Plaintiff's witnesses could not prove his case. 18. In view of findings rendered by the trial Court on issues No. 6 and 7, I am of the considered view that substantial question of law No. 1 does not arise for consideration. 19. Consequently, I do not find any reason or ground sufficient enough to interfere with concurrent findings of fact recorded by the Courts below. It cannot be said that the judgments passed by the Courts below are based on incorrect and incomplete appreciation of facts and material placed on record by the parties or that the same is perverse which has resulted into miscarriage of justice. Questions of law are answered accordingly. 20. The appeal is dismissed. Pending applications, if any, also stand disposed of.