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Himachal Pradesh High Court · body

2016 DIGILAW 1925 (HP)

Chhering Dolma v. State of H. P.

2016-09-08

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. 1. This petition is instituted against the order Annexure P-4 dated 4.8.2014, rendered in Case No. 58/K/2007-08 by the learned Collector-cum-Assistant Conservator of Forests, Parvati Forest Division, District Kullu, H.P. and order dated 23.12.2015 rendered in case No. 279/2014 by the learned Divisional Commissioner, Mandi, H.P. 2. “Key facts” necessary for the adjudication of this petition are that the petitioner applied vide application No. 0132021 dated 22.7.2002 for regularization of encroachment made by her on Government/Forest land. The Patwari concerned visited the spot and prepared spot map dated 3.8.2002. During spot inspection the Patwari concerned noticed that the petitioner has erected a Khokha over the encroached land which was Banjar unmeasured land. Since the encroachment was found to be on the forest land, as such the application of the petitioner along with the relevant papers was forwarded to DFO Kullu. Thereafter, notice under Section 4(1) of the H.P. Public Premises and Land (Eviction and Rent Recovery) Act, 1971 was issued to the petitioner. She filed reply to the same. 3. PW-1 Dayal Singh, Halqua Patwari Sosan testified that he received the application for regularization from the petitioner. He measured the land on the spot. He prepared missal of encroachment on 3.8.2002 and submitted to Halqua Kanungo. 4. PW-2 Mohar Singh Halqua Kanungo has admitted that he has received the application form of the petitioner for regularization. 5. The petitioner has appeared as DW-1 before the Collector-cum-Assistant Conservator of Forests. She has admitted categorically that she has constructed residential house on the suit land by encroaching upon the forest land since 1971. 6. The Collector-cum-Assistant Conservator of Forests ordered the eviction of the petitioner vide order dated 4.8.2014. The petitioner filed an appeal before the learned Divisional Commissioner, Mandi bearing No. 279/2014. He dismissed the same on 23.12.2015. 7. Mr. Sanjeev Kuthiala, Advocate, has vehemently argued that the land in question was not demarcated in accordance with law. However, the fact of the matter is that identification of the land was not in issue since the petitioner has herself admitted to be encroacher and submitted an application for regularization of the encroachment made by her in Manikaran K-III, UPF Tehsil Bhuntar, Distt. Kullu, H.P. Mr. Kuthiala, Advocate has also argued that the land was Phati Abadi and not forest land. Kullu, H.P. Mr. Kuthiala, Advocate has also argued that the land was Phati Abadi and not forest land. However, no tangible evidence has been led by the petitioner that it was Phati Abadi and not forest land. The petitioner has taken contradictory stand in her application submitted for regularization of the encroached land. She came in possession of the land in the year 1991. However, in the reply filed by the petitioner before the Collector-cum-Assistant Conservator of Forests, she stated that she came into possession from the year 1971. The petitioner has miserably failed to prove the plea of adverse possession. The petitioner has failed to prove the factum of possession over the suit land hostile to that of true owner i.e. the State Government. 8. Their lordships of the Hon’ble Supreme Court in the case of Hemaji Waghaji Jat vs. Bhikhabhai Khengarbhai Harijan and Ors., reported in (2009) 16 SCC 517 , have held that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner. The law should not place premium on dishonesty by legitimizing possession of a rank trespasser and compelling the owner to loose its possession only because of his inaction in taking back the possession within limitation. It has been held as under:- “32. Before parting with this case, we deem it appropriate to observe that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner. 33. We fail to comprehend why the law should place premium on dishonesty by legitimizing possession of a rank trespasser and compelling the owner to loose its possession only because of his inaction in taking back the possession within limitation.” 9. Their lordships of the Hon’ble Supreme Court in the case of Tribhuvanshankar vs. Amrutlal, reported in (2014) 2 SCC 788 , have held that a possession or user or permissive possession does not remotely come near the spectrum of adverse possession. Possession to be adverse has to be actual, open, notorious, exclusive and continuous for the requisite frame of time as provided in law so that the possessor perfects his title by adverse possession. Their lordships further held that the jurisdiction of Rent Controller/Court under the Rent Control Act should be limited to existence of landlord-tenant relationship. The question of plaintiffs’ title based on his purchase of suit property or adverse possession thereof by defendant is beyond the scope of enquiry in eviction suit under Rent Control Act. There is difference in exercise of jurisdiction when the civil court deals with a lis relating to eviction brought before it under the provisions of the Transfer of Property Act, 1882 where the equitable relief under Order 7 Rule 7 CPC could be granted and under any special enactment pertaining to eviction on specified grounds. The sine qua non for granting the relief in the suit for eviction under the Rent Control Act is that between the plaintiffs and defendant the relationship of “landlord and tenant” should exist. The scope of the enquiry before the Courts is limited. It has been held as under:- “25. The sine qua non for granting the relief in the suit for eviction under the Rent Control Act is that between the plaintiffs and defendant the relationship of “landlord and tenant” should exist. The scope of the enquiry before the Courts is limited. It has been held as under:- “25. The Court posed a question whether on the facts and in the circumstances of the case the High Court was right in law holding that an equitable decree for eviction of the defendant could be passed under Order VII Rule 7 of the Civil Procedure Code and remanding the case to the first appellate court for recording its finding on the question of title of the parties to the suit premises and for passing an equitable decree for eviction against the defendant if the plaintiffs were found to have title thereto. Answering the question the learned Judges proceeded to state thus: “7. It is evident that while dealing with the suit of the plaintiffs for eviction of the defendant from the suit premises under clauses (c) and (d) of sub-section (1) of Section 11 of the Act, courts including the High Court were exercising jurisdiction under the Act which is a special enactment. The sine qua non for granting the relief in the suit, under the Act, is that between the plaintiffs and the defendant the relationship of “landlord and tenant” should exist. The scope of the enquiry before the courts was limited to the question: as to whether the grounds for eviction of the defendant have been made out under the Act. The question of title of the parties to the suit premises is not relevant having regard to the width of the definition of the terms “landlord” and “tenant” in clauses (f) and (h), respectively, of Section 2 of the Act.” 26. In course of deliberation, the two-Judge Bench distinguished the authorities in Firm Sriniwas Ram Kumar v. Mahabir Prasad and Bhagwati Prasad (supra) by observing thus:- “15. These are cases where the courts which tried the suits were ordinary civil courts having jurisdiction to grant alternative relief and pass decree under Order VII Rule 7. In course of deliberation, the two-Judge Bench distinguished the authorities in Firm Sriniwas Ram Kumar v. Mahabir Prasad and Bhagwati Prasad (supra) by observing thus:- “15. These are cases where the courts which tried the suits were ordinary civil courts having jurisdiction to grant alternative relief and pass decree under Order VII Rule 7. A Court of Rent Controller having limited jurisdiction to try suits on grounds specified in the special Act obviously does not have jurisdiction of the ordinary civil court and therefore cannot pass a decree for eviction of the defendant on a ground other than the one specified in the Act. If, however, the alternative relief is permissible within the ambit of the Act, the position would be different.” 27. Thereafter, the learned Judges proceeded to express thus: “16. In this case the reason for denial of the relief to the plaintiffs by the trial court and the appellate court is that the very foundation of the suit, namely, the plaintiffs are the landlords and the defendant is the tenant, has been concurrently found to be not established. In any event inquiry into title of the plaintiffs is beyond the scope of the court exercising jurisdiction under the Act. That being the position the impugned order of the High Court remanding the case to the first appellate court for recording finding on the question of title of the parties, is unwarranted and unsustainable. Further, as pointed out above, in such a case the provisions of Order VII Rule 7 are not attracted.” 28. At this juncture, we may fruitfully refer to the principles stated in Dr. Ranbir Singh v. Asharfi Lal. In the said case the Court was dealing with the case instituted by the landlord under Rajasthan Premises (Control of Rent and Eviction) Act, 1950 for eviction of the tenant who had disputed the title and the High Court had decided the judgment and decree of the courts below and dismissed the suit of the plaintiff seeking eviction. In the said case the Court was dealing with the case instituted by the landlord under Rajasthan Premises (Control of Rent and Eviction) Act, 1950 for eviction of the tenant who had disputed the title and the High Court had decided the judgment and decree of the courts below and dismissed the suit of the plaintiff seeking eviction. While adverting to the issue of title the Court ruled that in a case where a plaintiff institutes a suit for eviction of his tenant based on the relationship of the landlord and tenant, the scope of the suit is very much limited in which a question of title cannot be gone into because the suit of the plaintiff would be dismissed even if he succeeds in proving his title but fails to establish the privity of contract of tenancy. In a suit for eviction based on such relationship the Court has only to decide whether the defendant is the tenant of the plaintiff or not, though the question of title if disputed, may incidentally be gone into, in connection with the primary question for determining the main question about the relationship between the litigating parties. 29. In the said case the learned Judges referred to the authority in LIC v. India Automobiles & Co. wherein the Court had observed that: “9.….. In a suit for eviction between the landlord and tenant, the Court will take only a prima facie decision on the collateral issue as to whether the applicant was landlord. If the Court finds existence of relationship of landlord and tenant between the parties it will have to pass a decree in accordance with law. It was further observed therein that all that the Court has to do is to satisfy itself that the person seeking eviction is a landlord, who has prima facie right to receive the rent of the property in question. In order to decide whether denial of landlord’s title by the tenant is bona fide the Court may have to go into tenant’s contention on the issue but the Court is not to decide the question of title finally as the Court has to see whether the tenant’s denial of title of the landlord is bona fide in the circumstances of the case.” 30. On a seemly analysis of the principle stated in the aforesaid authorities, it is quite vivid that there is a difference in exercise of jurisdiction when the civil court deals with a lis relating to eviction brought before it under the provisions of Transfer of Property Act and under any special enactment pertaining to eviction on specified grounds. Needless to say, this court has cautiously added that if alternative relief is permissible within the ambit of the Act, the position would be different. That apart, the Court can decide the issue of title if a tenant disputes the same and the only purpose is to see whether the denial of title of the landlord by the tenant is bona fide in the circumstances of the case. We respectfully concur with the aforesaid view and we have no hesitation in holding that the dictum laid down in Bhagwati Prasad (supra) and Bishwanath Agarwalla (supra) are distinguishable, for in the said cases the suits were filed under the Transfer of Property Act where the equitable relief under Order VII Rule 7 could be granted. 31. At this juncture, we are obliged to state that it would depend upon the Scheme of the Act whether an alternative relief is permissible under the Act. In Rajendra Tiwari’s case the learned Judges, taking into consideration the width of the definition of the “landlord” and “tenant” under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982, had expressed the opinion. The dictionary clause under the Act, with which we are concerned herein, uses similar expression. Thus, a limited enquiry pertaining to the status of the parties, i.e., relationship of landlord and tenant could have been undertaken. Once a finding was recorded that there was no relationship of landlord and tenant under the Scheme of the Act, there was no necessity to enter into an enquiry with regard to the title of the plaintiff based on the sale deed or the title of the defendant as put forth by way of assertion of long possession. Similarly, the learned appellate Judge while upholding the finding of the learned trial Judge that there was no relationship of landlord and tenant between the parties, there was no warrant to re-appreciate the evidence to overturn any other conclusion. The High Court is justified to the extent that no equitable relief could be granted in a suit instituted under the Act. The High Court is justified to the extent that no equitable relief could be granted in a suit instituted under the Act. But, it has committed an illegality by affirming the judgment and decree passed by the learned trial Judge because by such affirmation the defendant becomes the owner of the premises by acquisition of title by prescription. When such an enquiry could not have been entered upon and no finding could have been recorded and, in fact, the High Court has correctly not dwelled upon it, the impugned judgment to that extent is vulnerable and accordingly we set aside the said affirmation. 34. The conception of adverse possession fundamentally contemplates a hostile possession by which there is a denial of title of the true owner. By virtue of remaining in possession the possessor takes an adverse stance to the title of the true owner. In fact, he disputes the same. A mere possession or user or permissive possession does not remotely come near the spectrum of adverse possession. Possession to be adverse has to be actual, open, notorious, exclusive and continuous for the requisite frame of time as provided in law so that the possessor perfects his title by adverse possession. It has been held in Secy. of State for India in Council v. Debendra Lal Khan that the ordinary classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario. 37. It is to be borne in mind that adverse possession, as a right, does not come in aid solely on the base that the owner loses his right to reclaim the property because of his willful neglect but also on account of the possessor’s constant positive intent to remain in possession. It has been held in P.T. Munichikkanna Reddy and others v. Revamma and others.” 10. In the instant case also, the jurisdiction of the Collector-cum- Assistant Conservator of Forests, is limited. 11. Accordingly, there is no perversity in the order dated 4.8.2014, rendered in Case No. 58/K/2007-08 passed by the learned Collector-cum-Assistant Conservator of Forests, Parvati Forest Division, District Kullu, H.P. and order dated 23.12.2015 rendered in case No. 279/2014 by the learned Divisional Commissioner, Mandi, H.P. 12. Consequently, there is no merit in this petition, the same is dismissed so also the pending applications, if any.