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2014 DIGILAW 922 (HP)

Narender Singh Chandel v. State of H. P.

2014-07-17

TARLOK SINGH CHAUHAN

body2014
JUDGMENT : - Tarlok Singh Chauhan, J. The plaintiff is the appellant and is aggrieved by the judgements and decrees passed by the learned courts below. The brief facts of the case are that plaintiff Jamna Dass and others filed a suit for permanent prohibitory injunction restraining defendants from interfering in ownership and possession of plaintiffs over land comprised in Khewat/ Khatauni No. 10/14, Khasra Nos. 875/488, 879/876/488, Kkitas -2 measuring 2 Biswas and khewat/ Khatauni No. 12/16 Khasra Nos. 880/876/488 kita-1 new Khasra No. 238 situated at Mauja Ghandal, Pargana Nerwa, Tehsil and District Shimla, H.P. and also situated at Mauja Marhog Tehsil and District Shimla. 2. It was averred that plaintiff No.1 Jamna Dass was owner in possession of land comprised in Khewat/ Khatauni No. 12/16 Khasra No. 880/876/488 new Khasra No. 238 and plaintiff No. 2 was owner in possession of land comprised in Kheat/ Khatauni No. 10/14, khasra Nos. 875/488, 879/876/488 new khasra No. 238. The plaintiff No. 1 Jamna Dass has transferred his interest in land in favour of plaintiff No. 3 Mohinder Singh and mutation No. 402 dated 24.9.1999 was sanctioned and plaintiff No. 3 namely Mohinder Singh became owner in possession of land. The plaintiff No. 1, namely Jamna Dass in the year 1968 was allotted entire suit land by way of Nautor by State government of H.P. and mutation No. 210 dated 19.12.1968 was attested and possession of suit land was handed over to plaintiff No.1 Jamna Dass at spot by field staff of revenue department. 3. It was pleaded that plaintiff No. 1 Jamna Dass after acquiring title over suit land constructed mud structures on suit land and started tea stall in one of the structures and other structure was kept as store. The structure was raised in the year 1969 by plaintiff No.1 Jamna Dass, who subsequently transferred two Biswas of land by way of gift in favour of plaintiff No.2 namely Narinder Singh. The plaintiff Jamna Dass in the year 1990 demolished one of the structures on suit land and raised permanent structure and the another mud structure is still in existence. It was further pleaded that plaintiff No.3 Mohinder Singh is running tea stall in mud structure. The plaintiff Jamna Dass in the year 1990 demolished one of the structures on suit land and raised permanent structure and the another mud structure is still in existence. It was further pleaded that plaintiff No.3 Mohinder Singh is running tea stall in mud structure. The plaintiffs claimed that they are having existing rights over the suit land and structures since 1968 and 1969 and that defendants threatened that they would demolish structures over the suit land though they have no right, title or interest to interfere with ownership and possession of suit land. The plaintiffs claimed that in alternative they have acquired title over the suit land by way of adverse possession and that their possession is continuous, peaceful and hostile. 4. The suit was resisted and contested by defendant No.1 wherein several objections viz-a-viz civil court has no jurisdiction to try and entertain the suit as per provisions of H.P. land Revenue Act, suit is not properly valued for the purpose of court fees and jurisdiction, plaintiffs have no cause of action and that no notice under section 80 CPC was served, were raised. It has been pleaded that suit land was allotted to plaintiff No. 1 Jamna Dass by way of Nautor land in khasra No. 488/1 measuring 0-4 Biswas. The plaintiffs are not raising construction over the land allotted to them i.e. Khasra No. 488/1 but they are raising construction illegally over the land which was not allotted to them comprised in other portion of Khasra No. 488 measuring 31-7 bighas. It was admitted that plaintiff has transferred land measuring 2 Biswas in favour of plaintiff No.2 Narinder. The plaintiffs are raising permanent structures over land which was not allotted to them by way of Nautor land. It has been pleaded that proceeding under section 163 of H.P. Land Revenue Act were filed. The defendants have title in suit property which is not allotted to plaintiff Jamna Dass in Nautor. A prayer was made for dismissal of the suit. 5. Defendants No.2 and 3 filed a separate written statement wherein they pleaded that civil court has no jurisdiction to entertain the suit and suit is not properly valued for purpose of court fees and jurisdiction and plaintiffs have no cause of action. It was pleaded that no notice under section 80 CPC was served upon the defendants. 6. 5. Defendants No.2 and 3 filed a separate written statement wherein they pleaded that civil court has no jurisdiction to entertain the suit and suit is not properly valued for purpose of court fees and jurisdiction and plaintiffs have no cause of action. It was pleaded that no notice under section 80 CPC was served upon the defendants. 6. The following issues were framed by the learned trial court on 16.4.1999 and 18.1.2006:- 1. Whether plaintiffs are entitled for relief of permanent prohibitory injunction as prayed? OPP. 2. Whether jurisdiction of this court is barred by H.P. Land Revenue Act? OPD. 3. Whether suit is not properly valued for purpose of court fee and jurisdiction as alleged? OPD 4. Whether plaintiffs have no cause of action to file suit as alleged? OPD 5. Whether suit is bad for want of notice under section 80 CPC? OPD 5(a) Whether in alternative plaintiffs became owner of suit land by way of adverse possession as alleged? OPP. 6. Relief. 7. The learned trial court after recording the evidence and evaluating the same dismissed the suit of the plaintiff-appellant. Aggrieved by the judgement and decree passed by the learned trial court, the plaintiff- appellant preferred an appeal before the learned lower appellate court, who too vide its judgement and decree dated 22.2.2014 has dismissed the same. 8. The learned counsel for the appellant has strenuously argued that the learned court below have overlooked and ignored the documents and evidence on record by assuming and presuming certain facts. It is claimed that the learned courts below have failed to take into consideration that the appellant was in possession of the suit land during the life time of his father. It was claimed that respondent- department of forest and the revenue department had never objected the possession and allotment of land in the name of the deceased father in the year 1968. It was also contended that State was very much aware of the possession of the appellant over the suit land, which was given after the allotment under the scheme and it had failed to place on record any document whereby it could be proved that allotment had been given in some other revenue field. 9. I have heard the learned counsel for the parties and have also gone through the record. 9. I have heard the learned counsel for the parties and have also gone through the record. At the outset, it may be observed that where perfection of title by adverse possession is claimed in respect of public property, the question requires more effective and serious consideration because it involves possible destruction of the rights and title of the State. This was so observed by the Hon’ble Supreme Court in State of Rajasthan vs. Harphool Singh (dead) through his LRs (2000) 5 SCC 652 in the following manner:- “12. So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involve destruction of right\title of the State to immovable property and conferring upon a third party encroacher title where, he had none. The decision in P.Lakshmi Reddy v. L. Lakshmi Reddy [ AIR 1957 SC 314 ], adverted to the ordinary classical requirement - that it should be nec vi nec clam nec precario -that is the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. It was also observed therein that whatever may be the animus or intention of a person wanting to acquire title by adverse possession, his adverse possession cannot commence until he obtains actual possession with the required animus. In the decision reported in Secretary of State for India in Council v. Debendra Lal Khan (1933) LR (LXI) I.A. 78 (PC), strongly relied for the respondents, the Court laid down further that it is sufficient that the possession be overt and without any attempt at concealment so that the person against whom time is running, ought if he exercises due vigilance, to be aware of what is happening and if the rights of the crown have been openly usurped it cannot be heard to plead that the fact was not brought to its notice. In Annasaheb Bapusaheb Patil & Others v. Balwant Alias Balasaheb Babusaheb Patil (dead) by LRs etc. In Annasaheb Bapusaheb Patil & Others v. Balwant Alias Balasaheb Babusaheb Patil (dead) by LRs etc. JT 1995 (1) SC 370 = [ AIR 1995 SC 895 ), it was observed that a claim of adverse possession being a hostile assertion involving expressly or impliedly in denial of title of the true owner, the burden is always on the person who assert such a claim to prove by clear and unequivocal evidence that his possession was hostile to the real owner and in deciding such claim, the Courts must have regard to the animus of the person doing those acts. 10. Having said so, this court has gone through the detailed findings recorded by the learned courts below and I find that the learned courts below have appreciated the pleadings, oral and documentary evidence in the right perspective and by no stretch of imagination can these findings be termed to be perverse or not based on record. On the basis of the pleadings and after appreciating the evidence the learned courts below have come to a categorical conclusion that four biswas of land had been allotted to the deceased Jamna Dass predecessor-in-interest of the plaintiff from old khasra No. 488/1 and new khasra No. 238. It was also proved on record that khasra No. 488 was having an area of 31-7 bighas. It was disputed that the entire khasra No. 488 was not allotted to deceased Jamna Dass by way of Nautor, but only 4 biswas was allotted while the remaining area was in the ownership of the State government. When the plaintiff encroached upon the land over khasra No. 488, proceedings under section 163 of the H.P. Land Revenue Act were rightly initiated against him. 11. The next plea of the appellant that he had become owner by way of adverse possession is also without any merit. 12. 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 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 be actually 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 ). 13. 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. 14. Undisputedly in this case one of the co-plaintiffs filed an application for regularization of the land, meaning thereby that he admitted and attorned to the title of the State government. Therefore, in such event the plea of adverse possession was not at all available to the appellant. 15. While concluding, it may be observed that the property of the State is required to be protected and safeguarded and cannot be permitted to be usurped or misappropriated by setting up false claim of ownership or tenancy or adverse possession, which is only possible with the passive or active collusion of authority concerned. Such acts of “fences eating the crop” are required to be dealt with sternly and the government and the member of public in general are required to be vigilant to prevent such usurpation or encroachment of the land. Such acts of “fences eating the crop” are required to be dealt with sternly and the government and the member of public in general are required to be vigilant to prevent such usurpation or encroachment of the land. At the same time, it is also the duty of the court to protect and safeguard the property of the State from wrongful claims and misappropriation. 16. Accordingly, I find no merit in the appeal and the same is dismissed, leaving the parties to bear their own costs.