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2016 DIGILAW 827 (HP)

Suresh Kumar v. State of H. P.

2016-05-17

SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, J. Present second appeal filed under Section 100 CPC is directed against the judgment and decree dated 1.6.2005, passed by the learned District Judge, Mandi, HP, in Civil Appeal No. 120 of 2003, titled “Suresh Kumar and Ors. v. State of HP,” affirming the judgment and decree dated 29.8.2003, passed by learned Sub Judge, Ist Class, Jogindernagar, District Mandi, H.P. in CS No. 59 of 2000, titled “Sher Singh v. State of HP.,” whereby suit filed by the plaintiff was dismissed. 2. The briefly stated facts necessary for adjudication of this case are that plaintiff Shri Sher Singh filed suit for declaration to the effect that he has become owner by way of adverse possession of land measuring 4-18-17 bighas in Khasra No. 1520/1363 entered in Khata Khatauni No. 265 min/48 min situate in Mohal Passal, Pargana Ahju, Tehsil Jogindernagar, District, Mandi, HP. He further averred that as per Jamabandi, 1993, suit land is recorded in ownership of State of Himachal Pradesh but he is in the continuous, open, peaceful and hostile possession of the same since 26.1.1950. Entry in the revenue record is contrary to the factual position because he developed the suit land and made it cultivable by spending huge sum of money. It is also averred in the plaint that he has grown seasonal crops over the major portion of the suit land and there are number of fruit giving trees also. It is specifically averred that possession of the plaintiff over the suit land is quite old which is within the knowledge of the respondent-defendant, who never interfered with the possession of the plaintiff. Plaintiff has fenced the suit land since its inception and has perfected his title by way of adverse possession. The cause of action accrued to him for the first time on 6.9.1999, when respondent-defendant refused to admit the lawful claim of the plaintiff qua the suit land, though, he had served notice on the State under Section 80 CPC but that remained un-replied. On the other hand, respondent-defendant by way of filing written statement refuted all the averments contained in the plaint and specific objections with regard to the jurisdiction, valuation, locus-standi, cause of action were taken. On merit, respondent-defendant denied the averments made by the plaintiff regarding possession over the suit land, in toto. On the other hand, respondent-defendant by way of filing written statement refuted all the averments contained in the plaint and specific objections with regard to the jurisdiction, valuation, locus-standi, cause of action were taken. On merit, respondent-defendant denied the averments made by the plaintiff regarding possession over the suit land, in toto. Defendant specifically stated that land in question is within the exclusive ownership and possession of the State, rather, it has been stated that suit land has been recorded as ‘Makbuja Malik Tabe Hakuk Bartandaran’. Respondent-defendant in written statement specifically stated that plaintiff has recently encroached upon the suit land, as a result thereof, State has already initiated proceedings under Section 163 of the HP Land Revenue Act. Claim of the plaintiff that he is in exclusive, continuous, open, peaceful and hostile possession of the suit land for the last more than 50 years, has been specifically denied by the defendants. Learned trial Court, Mandi on the basis of pleadings on the record framed six issues, which were decided against the plaintiff and on the basis of material on record dismissed the suit filed by the plaintiff. 3. Feeling aggrieved and dissatisfied with the judgment dated 29.8.2003 passed by the learned Sub-Judge, plaintiff filed appeal under Section 96 CPC in the court of learned District Judge, Mandi, HP, however, the same was also dismissed and the judgment of learned Sub-Judge Jogindernagar, HP, was upheld. Hence, this regular second appeal before this Court. 4. This Court vide order dated 2nd September, 2005, admitted the present appeal on the following substantial questions of law:- 1. “Whether non-consideration of oral as well as documentary evidence, which goes to the root of the matter has vitiated the findings of the learned court below? 2. Whether the learned Courts below have correctly applied the law pertaining to adverse possession in the facts and circumstances of the matter and have thus arrived at a wrong conclusion not warranted in the eyes of law? 5. Whether the learned courts were right in dismissing the suit and the relief of injunction as prayed for?” 5. Perusal of the substantial questions of law formulated herein above suggests that finding/conclusion recorded by the courts below to the effect that “plaintiff has not become owner by way of adverse possession over the suit land”, which required to be tested in the light of material available on record. Perusal of the substantial questions of law formulated herein above suggests that finding/conclusion recorded by the courts below to the effect that “plaintiff has not become owner by way of adverse possession over the suit land”, which required to be tested in the light of material available on record. Apart from the material question as has been referred above, there is another question of law with regard to non consideration of oral as well as documentary evidence by the courts below while deciding the issue with regard to the adverse possession as was claim of the plaintiff. This question of law would automatically be considered while examining the evidence available on record to ascertain first substantial question of law as referred in above. 6. Mr. Vikas Rathore, Advocate, appearing for the appellants herein, vehemently argued that the judgment passed by the courts below are not sustainable as the same are not based upon the correct appreciation of the evidence available on record. He contended that both the courts below have failed to appreciate the evidence in its right perspective and has wrongly arrived to the conclusion that plaintiff has not been able to prove its case of adverse possession. Mr. Rathore, forcefully contended that perusal of the evidence on record clearly suggests that plaintiff has been in continuous, open, peaceful and hostile possession of the suit land since January, 1950. He also contended that the courts below have failed to acknowledge the fact that plaintiff has been cultivating the suit land since 1950 and there was ample evidence, be it ocular or documentary, on record to substantiate the aforesaid claim of the plaintiff. Mr. Rathore vigoursly contended that the courts below while passing judgments have not rightly appreciated the evidence of PW-1, who is son of the plaintiff. Since plaintiff was not keeping good health, he had given general power of attorney to his son namely Shri Suresh Kumar (Appellant No. 1 herein) and, as such, he was competent to depose on behalf of his father Sher Singh. Merely that Sher Singh i.e. plaintiff did not appear in witness box could not be ground for the courts below to draw adverse inference, as has been done in the present case. 7. On the other hand, Mr. Rupinder Singh Thakur, learned Additional Advocate General, appearing for defendant-respondent herein-State supported the judgment of courts below. Merely that Sher Singh i.e. plaintiff did not appear in witness box could not be ground for the courts below to draw adverse inference, as has been done in the present case. 7. On the other hand, Mr. Rupinder Singh Thakur, learned Additional Advocate General, appearing for defendant-respondent herein-State supported the judgment of courts below. He vehemently argued that no interference of this Court is warranted in the present facts and circumstances of the case, as the impugned judgments are based upon the correct appreciation of evidence available on record. He forcefully contended that this Court may not exercise its jurisdiction, especially, in view of the fact that courts below have very meticulously dealt with evidence be it ocular or documentary available on record. Mr. Thakur, contended that record reveals that plaintiff is an encroacher and in that regard, proceedings under Section 163 of HP Land Revenue Act has been already initiated and pending before the competent court of law. 8. I have gone through the material available on record as well as heard the learned counsel for the parties at length. 9. Sole question which requires determination in the present case is whether appellants have been able to prove their ownership by way of adverse possession of the suit land or not? In the present case, appellants have claimed that they are in settled possession of the suit land since 26th January, 1950 and courts below have not properly appreciated the oral evidence as led by the appellants to that effect. Plaintiff who had filed the suit for declaration for injunction in respect of land measuring 4-18-17 bighas Khasra No. 1520/1363 has been recorded as ‘Charagah Bila Drakhtan’ i.e. grazing land without any tree. Jamabandi Ext.PW1/D suggests that in the possessory column, there is an entry “Kabja Malik Tbe Kahuk Bartandaran Mutabik Naksha Bartan”, meaning thereby, proprietors of the village, who are holder of Bartandari rights, are in possession of the land. 10. Plaintiff with a view to prove his case of adverse possession over the suit land examined as many as three witnesses namely Suresh Kumar PW1, Kishori Lal as PW-2 and PW-3 Finu Ram. PW-1 Suresh Kumar (appellant No. 1) who is holding power of attorney on behalf of the plaintiff in his statement stated that he has been authorized by the plaintiff (father) by way of special power of attorney to conduct this case. PW-1 Suresh Kumar (appellant No. 1) who is holding power of attorney on behalf of the plaintiff in his statement stated that he has been authorized by the plaintiff (father) by way of special power of attorney to conduct this case. He stated that entry of State in the revenue record in column of ownership is incorrect since Suit land is in their possession since 26.1.1950. He also stated that during this period, defendant never raised any objection, rather, they have been sowing wheat/seasonal crop on the suit land. However, this fact has been not incorporated in crop inspection register. It has come in his statement that when they occupied this land, it was ‘Banjar’ and they by spending huge amount of money made it cultivable but no evidence was made available on record to substantiate plaintiff’s claim with regard to cultivation of land as well as spending of money for making it cultivable. 11. PW-2 Kishori Lal and PW-3 Finu Ram also supported the version of PW-1 and stated that there were trees of Khirak, Lemon on the suit land but at this stage, it would be pertinent to mention here that though, these witnesses have stated with regard to trees of khirak, lemon on the suit land but if the statement of PW-1 is read in its entirety, there is no whisper with regard to any tree standing on the suit land, rather, perusal of the reply Ext.PW-1/B filed by the plaintiff in proceedings under Section 163 of HP Land Revenue Act, no such detail with regard to number/type of trees has been mentioned. Even the careful reading of the plaint filed by the plaintiff, nowhere suggests, that it has been specific case of the plaintiff that in the suit land, there are trees, which have been grown by him. On the other hand, with a view to prove its case, respondent-defendant examined one witness as DW-1 Atama Singh, Patwari, he in his statement stated that he had visited the spot where plaintiff has encroached upon the Government land, measuring 4 bighas and 17 biswas, which was fenced by plaintiff. He stated that he had prepared the inspection report with regard to encroachment done by the plaintiff on the suit land. He stated that he had prepared the inspection report with regard to encroachment done by the plaintiff on the suit land. He also stated that he had initiated proceedings for encroachment of land measuring 2 bighas 15 biswa and 16 biswana because he was told by villagers that on the remaining land, plaintiff has removed his encroachment. He also stated that proceedings for ejectment under Section 163 CPC are pending against the plaintiff before the learned Tehsildar, Jogindernagar, HP. If the statements of all the prosecution witnesses as well as defendant witnesses are read in conjunction, the fact with regard to the illegal encroachment on the suit land by the plaintiff is established. Though, plaintiff by way of present suit has set up case that he is in adverse possession over the suit land since 1950 but there is no sufficient evidence on record to prove his claim. All the plaintiff witnesses only stated that plaintiff is in the possession of the suit land since 1950, rather, PWs No.2 and 3 stated in their statements that there are the trees which are sown by plaintiff on the suit land but however PW-1 (son of the plaintiff) did not make such claim in his statement. None of the plaintiff witness has specifically stated that when the possession of the plaintiff became adverse qua the suit land, rather, the statements of PWs 2 and 3 clearly suggest that suit land was never demarcated in their presence. Though, in the plaint, plaintiff has set-up a case that land in question was ‘Banjar’, which he made cultivable by spending huge money but admittedly, there is nothing in the statement of the plaintiff witnesses to suggest that actually some amount was spent by the plaintiff for making the fields cultivable. Moreover, no document has been made available on record by the plaintiff to substantiate aforesaid plea. 12. It is well settled law that to acquire title by adverse possession, one needs to prove that he is in hostile possession over the suit land which is known to the true owner. Whosoever claims adverse possession, he/she needs to prove that he/she is in continuous, open, peaceful and hostile possession, uninterrupted possession of the same without any hindrance that too to the knowledge of original owner. There must be overt act to suggest that he is in continuous possession of the suit land. Whosoever claims adverse possession, he/she needs to prove that he/she is in continuous, open, peaceful and hostile possession, uninterrupted possession of the same without any hindrance that too to the knowledge of original owner. There must be overt act to suggest that he is in continuous possession of the suit land. While claiming the adverse possession, it is incumbent upon the party so claiming, to adequately plead the constituents of adverse possession. The hostile character of the possession is gauzed by the animus of the person setting up adverse possession but as has been observed above in the present case, there is nothing on record which suggests that plaintiff is in the adverse possession of the suit land since 1950. To prove adverse possession, it is necessary to prove that possession is peaceful, uninterrupted and hostile to the title of the actually true owner. But in the present case, all the aforesaid ingredients are missing, rather, there is ample evidence available on record that defendant is encroacher upon the suit land, which is admittedly entered in the Jamabandi Ext.1/D as ‘Charagah Bila Drakhatan and moreover in possessory column there is entry “Kabja Malik Tabe Hakuk Bartandaran Mutabik Naksha Bartan’ which clearly suggests that the proprietors of the villager, who are the holder of Bartandari rights are in possession of the suit land. Hence, it could be safely concluded that plaintiff has not been having adverse possession of the suit land as has been claimed by him. DW-1 Atama Singh, Patwari in his cross-examination stated that plaintiff has never been in the adverse possession of the suit land, rather, he encroached upon the suit land and for which, proceedings have also been initiated against him. It has also come in the statement of DW-1 that on some part of the land, plaintiff has already removed encroachment, meaning thereby, he was never in the possession of the suit land, rather, both the courts below have rightly drawn the adverse inference with regard to the absence of original plaintiff, who did not enter into the witness box and gave power of attorney to his son. Record further reveals that PW-1 was only of 38 years of age at the time of making statement in the Court; admittedly, in the present case, plaintiff has claimed that he is in the possession of the suit land since 1950 but keeping in view his age, it can be seen that at that time, he was not even born and as such courts below have rightly concluded that his testimony regarding the possession over the suit land since 1950, cannot be taken into consideration. Moreover, no plausible explanation has been rendered on record to justify the absence of the original plaintiff, who did not opt to come in the witness box. 13. The reliance is placed on the judgments rendered by the Hon’ble Apex Court in Chati Konati Rao and Ors. V. Pale Venkata Subba Rao, (2010) 14 SCC 316 (Para-14), which is as under:- “14. In view of the several authorities of this Court, few whereof have been referred above, what can safely be said that mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The possession must be open and hostile enough so that it is known by the parties interested in the property. The plaintiff is bound to prove his title as also possession within 12 years and once the plaintiff proves his title, the burden shifts on the defendant to establish that he has perfected his title by adverse possession. Claim by adverse possession has two basic elements i.e. the possession of the defendant should be adverse to the plaintiff and the defendant must continue to remain in possession for a period of 12 years thereafter. 15. Animus possidendi as is well known a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until possessor holds property adverse to the title of the true owner for the said purpose. 15. Animus possidendi as is well known a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until possessor holds property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. Plea of adverse possession is not a pure question of law but a blended one of fact and law.” 14. The Hon’ble Apex Court, while reiterating the above ingredients, has further held in P.T. Munichikkanna Reddy v. Revamma (2007) 6 SCC 59 as under:- “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 v. Bird, 100 So. 2d 57 (Fla. 1958), Arkansas Commemorative Commission v. City of Little Rock, 227 Ark. 1085, 303 S.W.2d 569 (1957); Monnot v. Murphy, 207 N.Y. 240, 100 N.E. 742 (1913); City of Rock Springs v. 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 efflux of time. As against rights of the paperowner, 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. As against rights of the paperowner, 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 color 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. Simple application of Limitation shall not be enough by itself for the success of an adverse possession claim.” 15. Admittedly, in the instant case, present appellant has been not able to prove necessary ingredients as has been discussed above, to claim title by way of adverse possession and mere statement that he was in continuous possession for a period of more than 12 years is not sufficient to claim title by way of adverse possession. Animus-possidendi as is well known ingredient of adverse possession. It is now well settled that mere possession of the land would not automatically convert into possessory title until possessor holds property adverse to the title of the true owner. 16. Consequently, in view of the aforesaid discussion, this court sees no reason to interfere with the judgments passed by the courts below which appear to be based upon the correct appreciation of material available on record. Hence, this appeal fails and dismissed accordingly.