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2018 DIGILAW 1786 (HP)

Nanak Singh v. Bir Singh (deceased)

2018-10-03

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - The defendants are the appellants, who after having lost in both the learned Courts below have filed the instant appeal. 2. The brief facts giving rise to the present appeal are that the original plaintiff Bir Singh filed a suit for possession on the ground that he alongwith other co-sharers is owner and was in possession of the land bearing Khata No.6 min, Khatauni No. 24, Khasra No. 169, measuring 0-90-10 HM, situated in Tikka and Mauza Miani, Tehsil Indora, District Kangra, H.P. as per jamabandi for the year 1993-94 (hereinafter referred to as the suit land). It was averred that in the month of November, 1990 the plaintiff-respondent was in possession of the suit land and the predecessor-in-interest of the appellants took possession in November, 1990 and further averred that predecessorin-interest of the appellants namely Karam Singh was never inducted as tenant. It was averred that during the settlement operation in the year 1981-82 said Karam Singh got himself recorded as ''Kabiz'' over the suit land illegally and unauthorisedly in collusion with the settlement officials, therefore, the suit for possession was filed. 3. The predecessor-in-interest of the appellants i.e. Karam Singh contested and resisted the suit on various grounds. It was averred that he is coming in possession of the suit land since May, 1972 and thereafter during the settlement operation in the year 1981- 82 his such possession was recorded which was adverse to the respondent and therefore he had become owner by way of adverse possession. 4. From the pleadings of the parties, the learned trial Court on 14.6.2002 framed the following issues: 1. Whether the plaintiff is entitled to possession of the suit property as prayed for?OPP 2. Whether the defendant has been in possession since May, 1972 and has become owner of the suit land by way of adverse possession? OPD 3. Whether the suit of the plaintiff is not maintainable, as alleged? OPD 4. Whether the plaintiff has no locus-standi to file the present suit? OPD 5. Whether the plaintiff has no cause of action to file the present suit? OPD 6. Whether the plaintiff is estopped from filing of the present suit, as alleged? OPD 7. Relief. 5. After recording the evidence and evaluating the same, the suit as filed by the plaintiff was decreed by the learned trial Court vide judgment and decree dated 23.5.2006. Whether the plaintiff has no cause of action to file the present suit? OPD 6. Whether the plaintiff is estopped from filing of the present suit, as alleged? OPD 7. Relief. 5. After recording the evidence and evaluating the same, the suit as filed by the plaintiff was decreed by the learned trial Court vide judgment and decree dated 23.5.2006. The appeal filed by the appellants/defendants against the said judgment and decree was dismissed by the learned first appellate Court vide judgment and decree dated 01.12.2007, constraining the defendants/appellants to file the instant appeal. 6. On 25.5.2009, the appeal was admitted on the following substantial questions of law: 1. Whether impugned judgment and decree is the result of nonconsideration of provisions of Article 65 of the Limitation Act? 2. Whether impugned judgment and decree is the result of complete misreading as well as mis-interpretation of statements of DW-1 to DW-3 and Ex.D-1 to Ex.D-3? 3. Whether learned Courts below are right in not dismissing the suit of the respondent which was hopelessly barred on the face of it as is clear from the pleadings, more particularly para-6 of the plaint that cause of action had accrued in the year 1981-82 and suit was filed on 12th May, 1999? 4. Whether learned Courts below are right in not considering the provisions of Section 3 of the Limitation Act and not dismissing the suit of the respondent which was barred on the face of it? 7. Since all these questions are intrinsically inter-linked and interconnected, therefore, they are answered by a common reasoning. 8. At the outset, it would be necessary to look into the pleadings regarding adverse possession which are contained in para-5 of the preliminary objection and thereafter reiterated in paras 1 and 3 of the reply on merits and the same reads thus: "5. That the defendant is coming in possession over the suit land since May/1972 and has not been relinquished the possession at any time. The possession of the defendant was to the complete denial of the rights and title of the plaintiff and other co-sharers. The possession of the defendant is open, hostile, notorious, uninterrupted continuous and peaceful. That the defendant is coming in possession over the suit land since May/1972 and has not been relinquished the possession at any time. The possession of the defendant was to the complete denial of the rights and title of the plaintiff and other co-sharers. The possession of the defendant is open, hostile, notorious, uninterrupted continuous and peaceful. The defendant is throughout coming in possession over the suit land considering himself to be the absolute owners of the suit land, so being in adverse possession for more than 12 years, the defendant has become owner of the suit land by way of adverse possession. 1. That the contents of para No.1 of the plaint are incorrect and denied. It is incorrect that the plaintiff alongwith other cosharers were in possession over the suit land prior to Nov.90. The defendant is coming in possession over the suit land since May/1972 and he never relinquished his possession at any time. The possession of the defendant was to the complete denial of the rights and title of the plaintiff. The possession of the defendant is open, hostile, notorious, uninterrupted, continuous and peaceful. The defendant is throughout coming in possession over the suit land considering himself to be the absolute owner of the suit land. All rights and title of the plaintiff and other co-sharers have vested with the defendants and more so being in adverse possession over the suit land for more than 12 years. The defendant has already become owner of the suit land by way of adverse possession. 3. That the contents of para No.3 of the plaint are incorrect and denied. It is incorrect that the defendant during settlement operation got himself recorded as Kabiz illegally and unauthorisedly in collusion with the settlement official. It is also incorrect that defendant took possession over the suit land in the month of May/1990 as is alleged. It is submitted that the defendant is coming in possession over the suit land since May/1972 to the complete denial of the rights and title of the plaintiff and other cosharers. It is submitted that the settlement has rightly taken place at the spot and the settlement officials has rightly measured the suit land and rightly recorded the defendant as Kabiz over the suit land at the spot during settlement operation. It is submitted that the settlement has rightly taken place at the spot and the settlement officials has rightly measured the suit land and rightly recorded the defendant as Kabiz over the suit land at the spot during settlement operation. So the question of taking possession by the defendant in the month of Nov.1990 does not arise at all. It is incorrect that the possession of the defendant over the suit land is illegal. Other contents of this para of plaint are incorrect and denied." 9. Article 65 of the Limitation Act reads as under:- Art. 65 For possession of immovable property or any interest herein based on title. Twelve years When the possession of the defendant becomes adverse to the plaintif Explanation.- For the purposes of this article- (a) where the suit is by a remainderman, a reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisee, as the case may be, falls into possession; (b) Where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies; (c) where the suit is by a purchaser at a sale in execution of a decree when the judgmentdebtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment-debtor who was out of possession. 10. It would be noticed that no exact date of possession has been set out in the pleadings. As per settled law, mere possession however so long is not enough to prove the plea of adverse possession and it does not result in conversion of peaceful possession into adverse possession. 11. This issue has been considered in detail by learned Division Bench of this Court in CWP No. 306 of 2016, titled as Satpal vs. State of H.P., decided on 08.08.2016, wherein, it was observed as under:- "22. Moreover, the plea of adverse possession as raised by the petitioner is absolutely vague as the petitioner has not cared to mention the date from which his possession in fact became adverse. This question assumes importance as the petitioner initially had set up a lawful title in himself. 23. Moreover, the plea of adverse possession as raised by the petitioner is absolutely vague as the petitioner has not cared to mention the date from which his possession in fact became adverse. This question assumes importance as the petitioner initially had set up a lawful title in himself. 23. In Kamla and Others vs. Baldev Singh and Others , (2008) 1 ShimLC 215 , this court has held as under:- "..........Moreover, in case defendant or his father were in possession of the suit land as owner and the possession was never taken by the plaintiffs in pursuance of the decree, they can be said to be in possession as owner, but they cannot be treated to be in adverse possession of the suit land in any manner. The learned trial Court has not given its findings that the defendant or his father continued to be owner of the suit land even after passing of the decree since the decree was never executed, but has given the findings in the alternative that the defendant has become owner by way of adverse possession. This plea was taken by the defendant in the alternative but he never pleaded as to from which date his permissive possession as owner became adverse to the true owners i.e. plaintiffs and what overt act was done by him to show his hostile title to the suit land. There were no allegations as to when the possession became adverse, in which year or month or in what manner and the simple general allegation made by the defendant in the alternative were accepted by the trial Court without looking into the question that the original possession of the defendant over the suit land or that of his father was permissive being an owner and it never became adverse as against the true owner and if it became adverse in what manner and from which date, month or year. The permissive possession as owner does not itself become adverse as against the true owner until and unless some overt act is done by the defendant to show his hostile title towards the true owner which pleadings were very much lacking in the written statement and as such, the defendant was never proved to be in adverse possession of the suit land as owner. Those findings were rightly reversed by the learned first Appellate Court and the learned first Appellate Court had rightly observed that there was complete lack of animus on the part of the defendant to hold the suit land adversely to the plaintiffs. It was also observed that it has also not been shown as to what time possession of the defendant became hostile to that of the plaintiffs which had ripened into ownership. To my mind, there was nothing for the trial Court to conclude that the defendant has become owner by way of adverse possession in the absence of specific pleadings or proof and, therefore, the learned first appellate Court had come to a right conclusion in reversing the findings under Issue No. 1 in regard to the plea of adverse possession. Once the defendant had failed to prove adverse possession over the suit land, the only conclusion that can be drawn is the plaintiffs were entitled to the relief of possession and it was rightly given by the first appellate Court." 24. This court in Brij Mohan Sood vs. Parshotam Singh and Others,2014 1 HimLR 556, has held as follows:- "11. 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 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. 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 ). 12. Having observed so, it is clear from the pleadings of the defendant that he has failed to plead the essential ingredients of adverse possession. In absence of the essential ingredients of adverse possession, no amount of evidence can be looked into by this Court. Even otherwise, the defendant has set-up a title in himself and has not acknowledged or attorned the plaintiffs to be the owners. Apart from preliminary objection No.1 , in paragraph-3 of the preliminary objection, the defendant has made the following averments: "The plaintiffs are not the owners of the land rather the defendants are its owners and the plaintiffs have got no locus standi to file the suit." Throughout in the written statement, the defendants have claimed themselves to be the owners of the suit property and thus the plea of adverse possession is not available to them. " 25. This court further in Deepak Parkash vs. Sunil Kumar,2014 1 HimLR 654 has emphasized on the requirement of law of pleading the exact date from which the possession became adverse, in the following terms: "14. It appears that the learned lower Appellate Court completely ignored the pleadings of the parties or else the judgment and decree passed by the learned trial Court on the basis of such pleadings would not have been disturbed much less reversed. A perusal of the written statement would show that pleadings with regard to adverse possession were not only deficient but in fact did not meet the requirement of law. The defendant even failed to specify the definite date on which his possession became adverse. 16. Faced with such situation, learned counsel for the respondent/defendant would contend that he had led sufficient evidence to prove his plea of adverse possession. I am afraid that I cannot agree with the submissions made by learned counsel for the respondent/defendant. 17. It is settled law that no amount of evidence beyond pleadings can be looked into. 16. Faced with such situation, learned counsel for the respondent/defendant would contend that he had led sufficient evidence to prove his plea of adverse possession. I am afraid that I cannot agree with the submissions made by learned counsel for the respondent/defendant. 17. It is settled law that no amount of evidence beyond pleadings can be looked into. It is further well settled principle of law that the evidence adduced beyond the pleading would not be admissible nor can any evidence be permitted to be adduced which is at variance with the pleadings. The Court at the later stage of the trial as also the Appellate Court having regard to the rule of pleading would be entitled to reject the evidence wherefor there does not exist any pleading." 26. In Om Parkash and Others. vs. Gian Chand and Others.,2014 2 HimLR 1071 one of us (Tarlok Singh Chauhan, J) dealt in detail with the question of adverse possession particularly when the defendant therein had not spelt out any specific date from which his possession became adverse and it was observed as follows:- "11. Therefore, the moot question is as to whether the pleadings set out by the defendants can meet the requirement of law or not. This question assumes importance, because admittedly, the defendants have not spelt out any specific date from which their possession became adverse." 12. What is adverse possession has been dealt in detail in para 10 of Satpal''s case supra, which reads thus:- "10. Now, adverting to the question of adverse possession, it is well recognized proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner''s title must be peaceful, open and continuous. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner''s title must be peaceful, open and continuous. It is equally settled that a person pleading adverse possession has no equities in his favour and since such a person is trying to defeat the rights of the true owner, it is for him to clearly plead and establish necessary facts to establish his adverse possession. In the eyes of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Even non-use of the property by the owner for a long time won''t affect his title." 13. Having referred to the pleadings, I would now refer to the evidence led by the defendant in support of his plea of adverse possession. Original defendant Khajan Singh appeared as DW-1 and furnished affidavit Ex.DW-1/A deposing that the suit land is about 16 Kanals and was earlier possessed by his father Karam Singh, who had taken possession in the year 1972 and had never relinquished the same during his life time and they never considered the plaintiff and his father as owners of the suit land. Their possession was in the knowledge of the plaintiff which was confirmed during the settlement operation and during such settlement the plaintiff had asked the father of the defendant to vacate the possession, but he had refused to do so. He further deposed that his possession over the suit land attached with the possession of his predecessor was more than 12 years and thus he had acquired the right of ownership. 14. Kirpal Singh appeared as DW-2 and furnished affidavit Ex.DW-2/A and deposed that the defendants were in continuous possession of the suit land for the last 33 years since the time of his father and had not relinquished the possession of the suit land in favour of anyone and had, therefore, become owner of the suit land. This witness has not deposed about any particular date, month and year when the defendant or their predecessor came in possession and by what particular mode. 15. The defendants thereafter examined one Bishan Dass, who tendered his affidvit Ex.DW-3/A and rather reiterated the averments made in the affidavits filed by DW-1 and DW-2 and deposed that the defendants were in possession of the suit land . 15. The defendants thereafter examined one Bishan Dass, who tendered his affidvit Ex.DW-3/A and rather reiterated the averments made in the affidavits filed by DW-1 and DW-2 and deposed that the defendants were in possession of the suit land . But here again, he did not depose as to how in what mode and manner the predecessor of the defendants had taken possession and moreover like DW-2 has further not cared to mention the date, month and year of taking over of such possession. 16. Evidently, the defendants have categorically denied the title of the plaintiff and thus the plea of adverse possession is not otherwise available to them. 17. In P. Periasami vs. P. Periathambi , (1995) 6 SCC 523 , the Hon''ble Supreme Court ruled that: "Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property." 18. In Karnataka Board of Wakf vs. Government of India and Others , (2004) 10 SCC 779 , the Hon''ble Supreme Court held that one who pleads adverse possession should be very clear about the origin of title over the property. He must specifically plead it. 19. Over the years there has been a new paradigm to Limitation Act as the same has undergone a change. The burden of proof is now on the person who alleges his adverse possession, particularly once a party has proved its title. The starting point of limitation commences not from the date when the right of ownership arises in favour of the original owner but from the date a party claims his possession to have become adverse. 20. In T. Anjanappa and Others vs. Somalingappa and another , (2006) 7 SCC 570 , the Hon''ble Supreme Court held as under: "21. The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise. Above being the position the High Court''s judgment is clearly unsustainable." [See also Des Raj and Ors. v. Bhagat Ram (Dead) By LRs. and Ors. , (2007) 3 SCALE 371 ; Govindammal v. R. Perumal Chettiar and Others. , (2006) 10 JT 121 (SC)]." 21. Once defendants have failed to establish the plea of adverse possession for the statutory period of 12 years, a suit for possession based on title cannot be dismissed as being time barred on the ground that the same was filed after the expiry of twelve years from the date of dispossession. 22. The learned Single Judge of this Court in case titled as Tilak Raj vs. Bhagat Ram and another , (1996) 1 ShimLC 281 has held that once the defendant has failed to establish his adverse possession for statutory period of twelve years, the suit for possession based on title cannot be dismissed as being time barred on the ground that the same was filed after the expiry of twelve years from the date of dispossession. 23. Subsequently, the learned Division Bench of this Court in Smt. Kimtu vs. Smt. Rama Dogra and Others , (1997) 2 SLJ 1518 has gone to the extent of holding that in a suit for possession based on title there is no period of limitation prescribed save in the case where the defendant has set up the plea of adverse possession. It shall be appropriate to refer para 43 of the judgment which reads thus:- "43. It is well settled that in a suit for possession based on title, there is no period of limitation prescribed save in the case where the defendant has set up the plea of adverse possession." 24. The judgment in Tilak Raj''s case has subsequently been followed in RSA No. 366 of 1999, titled Surat Ram vs. Jyoti (since deceased) through her LRs & others, decided on 21.09.2010, wherein it was observed as under:- "16. The judgment in Tilak Raj''s case has subsequently been followed in RSA No. 366 of 1999, titled Surat Ram vs. Jyoti (since deceased) through her LRs & others, decided on 21.09.2010, wherein it was observed as under:- "16. The Tilak Raj vs. Bhagat Ram and another , (1997) 1 SLJ 84, this Court has also held that once the defendant has failed to establish his adverse possession for the statutory period, a suit for possession based on title cannot be dismissed as being time barred on the ground that the same was filed after the expiry of twelve years from the date of dispossession." All the substantial questions of law are accordingly answered against the appellants. 25. In view of the aforesaid discussion, I find no merit in this appeal and the same is accordingly dismissed, so also the pending application(s) if any, leaving the parties to bear their own costs.