Research › Search › Judgment

Punjab High Court · body

2016 DIGILAW 3142 (PNJ)

Avtar Singh v. Jasbir Singh

2016-11-08

SURINDER GUPTA

body2016
JUDGMENT : SURINDER GUPTA, J. 1. This is appeal by Avtar Singh, one of the defendants against the judgment and decree passed by Additional District Judge (Ad hoc), Fast Track Court, Hoshiarpur, whereby he accepted the appeal filed by the plaintiffs Jasbir Singh and others and decreed their suit for possession as owners of land measuring 7 marlas 5 sarsahi comprised in khasra no. 1714/1388/1 to 855 (2-0) situated in village Pandori, Tehsil Dasuya, District Hoshiarpur, as shown red in Naksha Tafabat (Ex.P4), after removal of super-structure thereon. 2. The case of the plaintiffs, in brief, is that they are owners of land measuring 3 kanals 0 marlas in khewat no. 65, Khatauni No. 153, khasra Nos. 1714/1388/1 to 855 (2-0), 1423/1 to 855/1 (1-0) situated in village Pandori, H.B. No. 39, Tehsil Dasuya District Hoshiarpur. The defendants, who have got no right/title over the suit land, forcibly took possession of 0 kanals 12 marlas out of total land, about two years before filing of the suit. They were repeatedly requested to vacate and deliver the vacant possession of the suit land but they refused. Hence, this suit. 3. The defendants contested the claim of plaintiffs raising the plea that the suit is barred by limitation and they have become owner of the suit land which as per them is 0 kanals 7 marlas, by way of adverse possession. While elaborating their plea, they averred in para 2 of the written statement as follows:- “In fact, the suit land measuring about 0-7 Mls. was a big pond and it was adjoining to the haveli of deft. Some times cattle of the predecessors of the defendants were used to fall in that pond. Being aggrieved from this pond the predecessors of defendants had requested the predecessors of plaintiff to fill it with earth but they were putting of the matter on one pretext or the other. Being aggrieved from the part of the predecessors of plaintiff, the defendants predecessors started to fill that pond with earth with their own cart and they had thrown about 100 (hundred) carts in that pond and made it level to their own haveli which is situated in Khasra No. 1261/1 to 855(0-2), 1713/1388(1-19) adjoining to the suit land and constructed two pucca khurlis, pucca sheds and raised a boundary wall by encroaching upon the suit land in the year 1970. Later on the plaintiffs predecessors have also raised a cattle shed on their side on the said wall and made it a common wall of defendants predecessors and plaintiffs predecessors. The plaintiffs predecessors had completely abondened (sic abandoned) the suit land since the year 1970 and they had never made any attempt to get back the possession of the suit land up-till now from the defendants as well as their predecessors except the present suit. The possession of the predecessors of the defendants and after the death of predecessors of defendants the possession of answering defendants is peaceful, long about 32 years old, undisputed and hostile to the knowledge of plaintiffs as well as their predecessors so in this way the answering defendants have become owners of the suit property by way of adverse possession.” 4. Learned Civil Judge (Junior Division), Dasuya upheld the plea of defendants that their possession over the suit land is hostile uninterrupted, to the knowledge of plaintiffs and has matured into title. The suit filed by the plaintiffs was dismissed and the counter claim filed by the defendants was decreed and they were declared owners of the suit land measuring 7 marlas by way of adverse possession. 5. In appeal, learned Additional District Judge, Hoshiarpur observed that defendants have neither pleaded nor proved the ingredients to prove their title over the suit land by way of adverse possession and accepted the appeal filed by the plaintiffs. 6. Learned counsel for the appellant-defendant has argued that the defendants have been continuing in possession of the suit land since 1970. The statements of plaintiff Jasbir Singh and his witness duly proves that the possession of defendants over the suit land has matured into title with the passage of time. Learned trial Court has rightly upheld the plea of defendants that they have become owner by way of adverse possession and the first Appellate Court has interfered in the finding of lower court and reversed the same despite evidence on record that the possession of defendants is continuous, hostile, uninterrupted, to the knowledge of plaintiffs for the last more than 12 years. 7. Learned counsel for the respondents has raised a legal objection regarding the plea raised by the appellants by way of counter claim. 7. Learned counsel for the respondents has raised a legal objection regarding the plea raised by the appellants by way of counter claim. He has argued that counter claim is virtually a suit in which the defendants are plaintiffs and it is settled principle of law that the relief of title by way of adverse possession cannot be claimed by a plaintiff. 8. The above submission of learned counsel for the respondents-plaintiffs carries no weight. The defendants have raised the plea that they have become owners of the suit land by way of adverse possession in the written statement. No doubt, along with the written statement, they have filed counter claim to this effect but this sole factor, in no manner, can be a ground to ignore their claim, even if, the plea that defendants have become owners by way of adverse possession, raised in the counter claim be discarded, still the similar plea taken in the written statement can be allowed, if duly proved. 9. Learned counsel for the respondents has argued that in the grounds of appeal in this regular second appeal, the only plea raised by the appellant is wrongful dismissal of the counter claim and he has sought the decree as per counter claim, which shows that he has not come in appeal against the denial of relief in the written statement. 10. This argument of learned counsel for the respondents-plaintiffs again has no merits as the appellants have sought relief as per their written statement/counter claim. No doubt, they are feeling aggrieved due to dismissal of their plea raised as a counter claim in the written statement but the fact remained that they have raised the plea of attaining title by way of adverse possession, even if the same has also been raised as counter claim. It is the spirit of intention and the nature of the relief claimed which is to be considered instead of going by language used in the grounds of appeal. Perusal of the written statement shows that therein defendants have not raised any claim except that they have become owners of the suit land by way of adverse possession. The submissions by learned counsel for respondent/plaintiff have no merits and are discarded. 11. Perusal of the written statement shows that therein defendants have not raised any claim except that they have become owners of the suit land by way of adverse possession. The submissions by learned counsel for respondent/plaintiff have no merits and are discarded. 11. Learned counsel for respondents-plaintiffs has further argued that as per case of defendants, land now owned by plaintiffs and defendants, which is adjoining, was jointly owned by their predecessors, who partitioned the same in the year 1970 and thereafter, they have taken possession of the suit land measuring 0 kanal 7 marlas but have nowhere alleged the date from which their possession over suit land became adverse and hostile towards plaintiffs or their predecessor-in-interest. They have not alleged starting point for their plea of possession turning hostile and adverse. Ingredients to prove the plea of adverse possession were neither pleaded nor proved in evidence and reference in this regard can be made to the statement of Avtar Singh, who appeared in this case as DW7. There is no evidence that appellant-defendant was using suit property adversely to the interest of the plaintiffs. In his cross-examination, Avtar Singh-appellant claims the suit property to be his property and denies any encroachment and this statement categorically show that defendants are not claiming any title over the suit property by way of adverse possession. 12. It is well settled that party claiming ownership by way of adverse possession, have to specifically plead and prove by cogent evidence that it is validly adequate in continuity, in publicity and in extent to show that their possession is clear, adverse to the knowledge of the true owner. 13. Before proceeding further, it will be relevant to have a look on the statement of Avtar Singh appellant, who appeared as DW7 to ascertain as to whether plea raised by learned counsel for the appellant that defendants have attained title over the suit land by way of adverse possession, has any substance. He has stated that the property of khasra no. 1713 and 1714 were originally joint of the forefathers of the parties and was partitioned in the year 1970. Land of khasra no. 1714 came to the share of forefathers of plaintiffs and land of khasra No. 1713 fell to the share of forefathers of defendants. Land bearing khasra no. He has stated that the property of khasra no. 1713 and 1714 were originally joint of the forefathers of the parties and was partitioned in the year 1970. Land of khasra no. 1714 came to the share of forefathers of plaintiffs and land of khasra No. 1713 fell to the share of forefathers of defendants. Land bearing khasra no. 1713 was in the shape of pond, which was filled up by his forefathers and they constructed a brick wall on the side of khasra no. 1714 which include the disputed area which was ownership of forefathers of defendants (sic plaintiffs). This fact was in the knowledge of plaintiffs, their forefathers and their possession is adverse, continuous, without interruption and hostile since 1970. In cross-examination, he has denied knowledge about ownership of plaintiffs over the suit land. In his cross-examination, he has stated as follows:- “I also do not know that the plaintiffs are owners in possession of the property in suit. It is wrong to suggest that I have encroached the suit property forcibly. Volunteered stated that the suit property was in possession of our forefathers. I do not know that the partition which I alleges whether my forefathers came in possession over their respective shares only. It is wrong to suggest that no partition has been effected between our forefathers.” 14. The statement of appellant Avtar Singh clarifies that land bearing khasra no. 1714 which is land in suit, fell to the share of forefathers of plaintiffs. He has further made out that his forefathers took possession of the suit land by filling up the pond in khasra no. 1713 (not khasra no. 1714 owned by forefathers of plaintiffs) and constructed a brick wall. He has nowhere stated that possession of his forefathers over the suit land was hostile, continuous and adverse to the interest of the plaintiffs. The defendants cannot render their possession adverse to the plaintiffs merely by any secret hostile animus on their part. Even if, their forefathers had taken possession of part of land owned by forefathers of plaintiffs, in order to set up and prove plea of adverse title, it is required to establish that at the time of taking possession of 7 marlas of land owned by forefathers of plaintiffs, they have set up their hostile title. Even if, their forefathers had taken possession of part of land owned by forefathers of plaintiffs, in order to set up and prove plea of adverse title, it is required to establish that at the time of taking possession of 7 marlas of land owned by forefathers of plaintiffs, they have set up their hostile title. Hon'ble Apex Court in case of P.T. Munichikkanna Reddy & Others vs. Revamma and Others, 2007 (6) SCC 59 , observed as follows:- “5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. [See Downing vs. Bird, 100 So. 2d 57 (Fla. 1958), Arkansas Commemorative Commission vs. City of Little Rock, 227 Ark. 1085 : 303 S.W. 2d 569 (1957); Monnot vs. Murphy, 207 N.Y. 240, 100 N.E. 742 (1913); City of Rock Springs vs. Sturm, 39 Wyo. 494, 273 P. 908, 97 A.L.R. 1 (1929)]. 6. Efficacy of adverse possession law in most jurisdictions depend on strong limitation statutes by operation of which right to access the court expires through effluxion of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title. (See American Jurisprudence, Vol. 3, 2d, Page 81). It is important to keep in mind while studying the American notion of Adverse possession, especially in the backdrop of Limitation Statutes, that the intention to dispossess cannot be given a complete go by. (See American Jurisprudence, Vol. 3, 2d, Page 81). It is important to keep in mind while studying the American notion of Adverse possession, especially in the backdrop of Limitation Statutes, that the intention to dispossess cannot be given a complete go by. Simple application of Limitation shall not be enough by itself for the success of an adverse possession claim.” 15. Similarly, in case Annakili vs. A. Vedenayagam, (2007) 14 SCC 308 , the Hon'ble Supreme Court has reiterated as herein-after:- “24. Claim by adverse possession has two elements: (1) the possession of the defendant should become adverse to the plaintiff and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well-settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in the said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more does not ripen into a title.” 16. Likewise, an identical question recently arose before the Hon'ble Apex Court in case Mandal Revenue Officer vs. Goundla Venkaiah and Another, (2010) 2 SCC 461 . After considering the relevant provisions, it was held as under:- “47. In this context, it is necessary to remember that it is well-nigh impossible for the State and its instrumentalities including the local authorities to keep everyday vigilance/watch over vast tracts of open land owned by them or of which they are the public trustees. No amount of vigil can stop encroachments and unauthorised occupation of public land by unscrupulous elements, who act like vultures to grab such land, raise illegal constructions and, at times, succeeded in manipulating the State apparatus for getting their occupation/ possession and construction regularised. No amount of vigil can stop encroachments and unauthorised occupation of public land by unscrupulous elements, who act like vultures to grab such land, raise illegal constructions and, at times, succeeded in manipulating the State apparatus for getting their occupation/ possession and construction regularised. It is our considered view that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the court is duty-bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State to immovable property and give an upper hand to the encroachers, unauthorised occupants or land grabbers.” 17. Plaintiff Jasbir appeared in this case as PW2 and no suggestion was given to him that the defendants including appellant have become owner of the suit property by way of adverse possession. The onus was on defendants to prove their plea that they have become owners by way of adverse possession. Paramjit Singh DW1 has deposed regarding long possession of the defendants over the suit land but has nowhere stated the ingredients of adverse possession. He has rather stated in his cross-examination as follows:- “It is correct that the land in dispute is the ownership of plaintiffs. It is correct that the defendants have no right, title, concern with the land in suit.” 18. Salag Singh, DW2 has also stated about long possession of defendants over the suit land but he was not aware of its area and if the suit land is in ownership of the plaintiff. Tarsem Singh, Lamberdar DW3 has also stated about long possession of the defendants over the suit land as owners. He was so eager to support the case of defendants that he had gone to the extent of stating that possession of the defendants over the suit land measuring 12 marlas is for the last about 100 years. 19. In order to claim the title by way of adverse possession, it was incumbent on the appellant first to admit the title of respondents-plaintiffs and then to claim their title by way of adverse possession by pleading and proving required ingredients to establish that they have become owners of the suit property by way of adverse possession. 20. 19. In order to claim the title by way of adverse possession, it was incumbent on the appellant first to admit the title of respondents-plaintiffs and then to claim their title by way of adverse possession by pleading and proving required ingredients to establish that they have become owners of the suit property by way of adverse possession. 20. Hon’ble Supreme Court in case of Smt. V. Rajeshwari vs. T.C. Saravanabava, 2004 (1) RCR (Civil) 498 has observed that the party claiming the adverse possession has to prove as to ‘how and at what point of time, he started prescribing hostile title, was for him to plead and prove’ this fact. 21. In case of D.N. Venkatarayappa and Another vs. State of Karnataka and Others, (1997) 7 SCC 567 , Hon’ble Supreme Court observed as follows:- “Therefore, in the absence of crucial pleadings, which constitute adverse possession and evidence to show that the petitioners have been in continuous and uninterrupted possession of the lands in question claiming right, title and interest in the lands in question hostile to the right, title and interest of the original grantees, the petitioners cannot claim that they have perfected their title by adverse possession.” 22. While dealing with concept of proof of adverse possession, Hon’ble Supreme Court in case of S.M. Karim vs. Mst. Bibi Sakina, AIR 1964 SC 1254 in para 5 of the judgment has observed as follows:- “..................... Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for “several 12 years” or that the plaintiff had acquired “an absolute title” was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea....................” 23. In case of Annasaheb Bapusaheb Patil and Others vs. Balwant and Balasaheb Babusaheb Patil (dead) by LRs and heirs, AIR 1995 SC 895 , Hon’ble Supreme Court observed in para 12 as follows:- “13. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea....................” 23. In case of Annasaheb Bapusaheb Patil and Others vs. Balwant and Balasaheb Babusaheb Patil (dead) by LRs and heirs, AIR 1995 SC 895 , Hon’ble Supreme Court observed in para 12 as follows:- “13. Article 65 of the Schedule to the Limitation Act, 1963 prescribes that for possession of immovable property or any interest therein based on title, the limitation of 12 years begins to run from the date of the defendant's interest becomes adverse to the plaintiff. Adverse possession means a hostile assertion i.e. a possession which is expressly or impliedly in denial of title of the true owner. Under Article 65, burden is on the defendants to prove affirmatively. A person, who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person, who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed.” 24. Hon'ble Apex Court while considering the law laid down in case of Saroop Singh vs. Banto, (2005) 8 SCC 330 has observed about the concept of animus possidendi which is extracted as follows:- “Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the Appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. [See Md. Mohammad Ali (dead) by LRs. vs. Jagdish Kalita and Others, (2004) 1 SCC 271].” 25. It was further observed by Apex Court that mere possession, however long, does not necessarily mean that it is adverse to the true owner. It must be open and hostile enough to be capable of being known by the parties interested in the property. Mohammad Ali (dead) by LRs. vs. Jagdish Kalita and Others, (2004) 1 SCC 271].” 25. It was further observed by Apex Court that mere possession, however long, does not necessarily mean that it is adverse to the true owner. It must be open and hostile enough to be capable of being known by the parties interested in the property. Apex Court in case of Hemaji Waghaji Jat vs. Bhikhabhai Khengarbhai Harijan and Others, 2009 (16) SCC 517 , took note of the principle of adverse possession as discussed in many cases and while making reference to the cases of D.N. Venkatarayappa and Another vs. State of Karnataka and Others, (1997) 7 SCC 567 and Md. Mohammad Ali (dead) by LRs vs. Jagdish Kalita & Others, (2004) 1 SCC 271, observed in para 16 and 17 as follows:- “16. D.N. Venkatarayappa and Another vs. State of Karnataka and Others, (1997) 7 SCC 567 this court observed as under:- "Therefore, in the absence of crucial pleadings, which constitute adverse possession and evidence to show that the petitioners have been in continuous and uninterrupted possession of the lands in question claiming right, title and interest in the lands in question hostile to the right, title and interest of the original grantees, the petitioners cannot claim that they have perfected their title by adverse possession." 17. In Md. Mohammad Ali (dead) by LRs. vs. Jagadish Kalita & Others, (2004) 1 SCC 271, paras 21-22, this Court observed as under: "21. For the purpose of proving adverse possession/ouster, the defendant must also prove animus possidendi. 22..... We may further observe that in a proper case the court may have to construe the entire pleadings so as to come to a conclusion as to whether the proper plea of adverse possession has been raised in the written statement or not which can also be gathered from the cumulative effect of the averments made therein." 26. Here, learned counsel for the appellant has argued that suit of the plaintiff is barred by limitation which under Article 65 Limitation Act is 12 years and has relied on the observations in case of M. Durai vs. Madhu & Others, 2007 (3) SCC 114 . On perusal of the above citation, I find that it does not help the appellants in this case, in any manner. On perusal of the above citation, I find that it does not help the appellants in this case, in any manner. In order to establish plea of adverse possession, party in possession of immovable property has to set up and prove animus possidendi. Principles laid down in above referred citations, when applied to the facts of the present case, lead to draw a safe and prudent conclusion that appellants have failed to establish ingredients to set up and succeed in their plea that they have become owners of 7 marlas 5 sarsahi land of plaintiffs by adverse possession. As the appellants have failed in their plea that their possession over the suit land is adverse to the owner, suit is not barred under Article 65 of Limitation Act. 27. From the evidence on record, I find that the first Appellate Court has rightly taken note of the fact that even long possession of defendants cannot be termed as adverse possession. Forefathers of plaintiffs and defendants were admittedly co-owners of suit land. Even if, this plea of appellants be believed that after partition in the year 1970, their forefathers took possession of suit land, in the absence of proof of animus possidendi, they cannot succeed to establish their adverse title over suit land. Learned trial Court committed grave error while accepting plea of the appellant only on ground of mere possession for a period of 15 years. 28. I find no legal or factual infirmity in the judgment of the first Appellate Court, calling for any inference. As the law relating to the principle governing adverse possession is already well settled, no substantial question of law requiring determination arises in this appeal, which has no merits. Dismissed.