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2014 DIGILAW 917 (HP)

Ram Chand v. Kulbir Singh

2014-07-17

TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, Judge The plaintiff is the appellant, who is aggrieved by the judgment and decree dated 30.3.2002 passed by learned Additional District Judge-II, Kangra at Dharamshala in Civil Appeal No. 59-N/2000 whereby he reversed the judgment and decree dated 1.4.2000 passed by learned Sub Judge 1st Class (I), Nurpur, District Kangra, H.P. in Civil Suit No. 120/1996. 2. The facts, in brief, are that the plaintiff filed a suit for possession by way of demolition of structure on the land comprised of Khata No. 76 min, Khatauni No. 191, Khasra No.586 measuring 0-00-36 HM, situated in Tika and Mauza Deothi, Tehsil Indora, District Kangra, H.P. (hereinafter referred to as the suit land). The plaintiff averred that he is owner and was in possession of the suit land prior to November, 1984. However, the defendant/respondent got the forcible possession in the month of November, 1984 and then raised ‘Baranda’. The possession of the defendant over the suit land is illegal. 3. The suit of the plaintiff/appellant is resisted and contested by the defendant/respondent mainly on the ground that it is not maintainable and the plaintiff has no locus-standi to file the present suit. On merits, it is submitted that the defendant has become the owner of the suit land by way of adverse possession being in possession for the last more than 12 years and his possession was open, hostile, continuous and well within the knowledge of the plaintiff. 4. On 29.5.1997, the learned trial Court framed the following issues: 1. Whether the plaintiff is entitled to recover possession of the suit land? OPP 2. Whether the suit is not maintainable? OPD 3. Whether the plaintiff has no locus standi to file the present suit? OPD 4. Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD 5. Whether the defendant has become owner of the suit land by way of adverse possession? OPD 6. Whether the plaintiff has got no cause of action to file the present suit? OPD. 7. Relief. 5. OPD 4. Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD 5. Whether the defendant has become owner of the suit land by way of adverse possession? OPD 6. Whether the plaintiff has got no cause of action to file the present suit? OPD. 7. Relief. 5. The learned trial Court after recording the evidence was pleased to decree the suit to the effect that the plaintiff being the owner is entitled for the possession by way of demolition of structure on the land comprised of Khata No. 76 min, Khatauni No. 191, Khasra No. 586, measuring 0-00-36 HM, situated in Tika and Mauza Deothi, Tehsil Indora, District Kangra, from the defendant. Aggrieved by the judgment and decree passed by the learned trial Court, the defendant/respondent preferred an appeal before the learned lower Appellate Court, who vide his judgment and decree dated 30.3.2002 has been pleased to set-aside the judgment and decree of the learned trial Court. This is now the plaintiff, who is in appeal before this Court against the judgment and decree passed by the learned lower Appellate Court. 6. On 19.8.2002 this Court admitted the appeal on following substantial question of law: “Whether ingredients of adverse possession having not been pleaded and proved by defendant, judgment of the learned first appellate court below is based on misreading and mis-appreciating the evidence, thus, stand vitiated?” 7. I have heard Mr. Ajay Sharma, learned counsel for the appellant and Mr. Rajesh Mandhotra, learned counsel for the respondent and have also gone through the records carefully. 8. At the outset the plea of adverse possession as raised by the defendant requires to be noticed. By way of preliminary objection No.5, the defendant has set-forth the plea of adverse possession in the following manner: “That the defendant has become owner of the suit land by way of adverse possession being in possession for more than 12 years that too, open, hostile, continuous and well within the knowledge of the plaintiff and the defendant has become owner of the suit land and the plaintiff has no concern or connection with the same.” Similarly, in para-1 of the written statement on merits, the plea of adverse possession has been taken in the following manner: “Para No.1 of the plaint is totally incorrect and hence denied. It is submitted that the defendant has been in cultivating possession of the suit land under the original owners viz. Kamla Devi and Jagdev Singh since the year 1957 and has become the absolute owner of the same by virtue of adverse possession of the same that too, open, continuous, hostile, uninterrupted and well within the knowledge of the plaintiff and the plaintiff has nothing to do with the suit land.” But then the defendant has not only confined his claim to adverse possession, rather claimed title to the property though not in many words, in the following manner: “3. Para No.3 of the plaint is totally incorrect and hence denied. As already stated hereinbefore, the defendant has been coming in cultivating possession of the suit land since the year 1957. The defendant has rightly got the order of the Naib Tehsildar, Settlement on 17.12.1983. It is incorrect that the defendant is trespasser and encroacher as alleged. Otherwise also, the defendant has become the owner of the suit land by way of adverse possession and the plaintiff has got no concern or connection with the suit land.” 9. Now, it is on the basis of such pleadings that the case of the defendant regarding adverse possession is required to be tested. The learned lower Appellate Court has held that since the nature of the suit land was ‘Gair Mumkin Abadi’ and was in possession of the defendant and his possession in turn was not that of a tenant, therefore, his possession was deemed to be adverse. I am afraid that this reasoning could not be the basis for upholding the claim set-forth by the defendant/ respondent. 10. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is well settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precario” i.e. peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and must be actual, visible, exclusive, hostile and continued over the statutory period. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and must be actual, visible, exclusive, hostile and continued over the statutory period. Therefore, a person who claims adverse possession has to show: (a) on what date he came into possession; (b) what was the nature of his possession; (c) whether the factum of possession was known to the other party ; (d) how long his possession is continued; and (e) his possession was open and undisturbed. It has to be remembered that the person pleading adverse possession has no equity in his favour since he is trying to defeat the right of the true owner, therefore, it is for him to clearly plead and establish all facts necessary to establish his adverse possession (Refer Dr. Mahesh Chand Sharma vs. Raj Kumari Sharma (Smt.) and others (1996) 8 SCC 128 ). 11. In P. Periasami (dead) by LRs. Vs. P.Periathambi and others (1995) 6 SCC 523 , the Hon’ble Supreme Court held “whenever the plea of adverse possession is projected, inherent in the plea is that someone else is the owner of the property. The pleas of title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. 12. Adverse possession as the word implies must be actual possession of another’s land with an intention to hold it and claim it as his own. It must commence with the dispossession of the rightful owner at some particular time. It must commence with a wrong and must be maintained as a matter of right. It must be actual, open, notorious, hostile, under claim of right, continuous and exclusive and maintained for statutory period. The person, who claims adverse possession, must show on which date he came in possession, what was the nature of his possession, whether the factum of his possession was known to the legal claimant and how long his possession continued. Ouster of the real owner is the foundation of the title by adverse possession. Conversely, mere possession for any number of years cannot constitute adverse possession. Regard must be had to the animus of the person doing that and this has to be ascertained from the cumulative facts and circumstances of each case. Ouster of the real owner is the foundation of the title by adverse possession. Conversely, mere possession for any number of years cannot constitute adverse possession. Regard must be had to the animus of the person doing that and this has to be ascertained from the cumulative facts and circumstances of each case. Thus, the crux of the adverse possession that it must be adequate, in continuity, in publicity and extent and plea is required atleast to show when possession becomes adverse so that the starting point of limitation against the party effected, can be found. 13. As already observed above, the pleadings are deficient and, therefore, no amount of evidence for which there is no factual foundation in the pleadings can be looked into. The mere fact that the defendant was not the tenant, but was however in possession of the property, would not ipso facto make his possession adverse to the real owner as one of the basic requirement of law is that the possession has to be actual, open, notorious and hostile apart from being continuous, exclusive and maintained as a matter of right over statutory period. All these ingredients are lacking in the present case. 14. Confronted with this situation, Mr. Rajesh Mandhotra, learned counsel for the respondent sought to place reliance upon the judgment of the Hon’ble Supreme Court in Ramti Devi (Smt.) vs. Union of India (1995) 1 SCC 198 to contend that the suit filed by the plaintiff was time barred under Article 59 of the Limitation Act since the plaintiff had not challenged the order passed by the Naib Tehsildar, Settlement on 17.12.1983, while the present suit came to be filed only on 2.8.1996. He further placed reliance upon the judgment of the Hon’ble Supreme Court in Sulochana Amma vs. Narayanan Nair (1994) 2 SCC 14 to contend that since the aforesaid order passed by the Naib Tehsildar, Settlement had not been challenged, therefore, the present suit was barred under the provisions of Explanation VIII to Section 11, because the Court of Naib Tehsildar, Settlement was a Court of limited jurisdiction and same issue between the parties had already been determined and left unquestioned. He has further contended that the order passed by the Naib Tehsildar, Settlement was a valid one since he had the jurisdiction to pass the said order. He has further contended that the order passed by the Naib Tehsildar, Settlement was a valid one since he had the jurisdiction to pass the said order. He further contended that even if it is assumed to void or voidable even then the same was declared as such from a competent court of law. In support of such proposition, he further relied upon the judgment of the Hon’ble Supreme Court in Rafique Bibi (dead) by LRs vs. Sayed Waliuddin (dead) by LRs and others (2004) 1 SCC 287 . 15. There is no quarrel with the proposition of law as contended by Sh. Mandhotra, learned counsel for the respondent. However, what is required to be seen here is, that the suit filed by the plaintiff was based on title claiming to be in possession of the land till 1984 and as a tenant under the State and thereafter as owner vide mutation No. 382 dated 17.6.1981. It is the specific claim of the plaintiff that he had never inducted the defendant as tenant over the suit land nor the defendant was allowed to cultivate the same in any capacity. But the defendant, who was clever and forceful person had got an order from the Naib Tehsildar, Settlement on 17.12.1983 at the back and without the consent of the plaintiff and thereafter taken possession of the land in November, 1984. It is in this background that the plaintiff had claimed that the order to be a nullity and the possession of the defendant to be illegal and unauthorized and that of trespasser. 16. The defendant on the other hand had claimed that he had been in possession of the suit land since the year 1957. Therefore, it was incumbent upon the defendant to prove that either he was a tenant or owner by way of adverse possession of the suit land but in no event could the defendant take omnibus plea and claimed protection on both scores i.e. as owner, tenant thereafter as owner by way of adverse possession. 17. The defendant has placed much reliance on the order passed by the Naib Tehsildar, Settlement on 17.12.1983 but unfortunately the same has not been placed on the records of the case. 18. 17. The defendant has placed much reliance on the order passed by the Naib Tehsildar, Settlement on 17.12.1983 but unfortunately the same has not been placed on the records of the case. 18. In view of the aforesaid discussion, it is clearly proved on the record that the ingredients of adverse possession have neither been fully pleaded nor proved by the defendant and therefore the judgment passed by the learned first Appellate Court is not based on the correct appreciation of the facts or the law. The substantial question of law is answered accordingly. 19. Consequently, the appeal is allowed and the judgment and decree dated 30.3.2002 passed by the learned lower Appellate Court in Civil Appeal No. 59-N/2000 is set aside and the judgment dated 1.4.2000 passed by the learned trial Court is restored, leaving the parties to bear their own costs.