Om Prakash And Another vs Bishan Dass
2023 Latest Caselaw 10481 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA No. 4219 of 2013 Reserved on: 21.07.2023 Decided on: 28.07.2023.

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Om Prakash and another ......Appellants/Defendants.

Versus Bishan Dass .....Respondent/Plaintiff.

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The Hon'ble Mr. Justice Satyen Vaidya, Judge

Whether approved for reporting?1 Yes

For the appellants: Mr. Bhupender Gupta, Senior Advocate with Ms. Rinki Kashmiri, Advocate.

For the respondent:

r Mr. Ajay Sharma, Senior Advocate, with

Mr. Ajay Thakur, Advocate.

------------------------------------------------------------------------------------ Satyen Vaidya, Judge

By way of instant Regular Second Appeal, the

appellants have assailed judgment and decree dated

17.07.2013 passed by learned Additional District Judge (II),

Kangra at Dharamshala, District Kangra, H.P. in RBT Civil

Appeal No. 218-P/10/08, whereby the judgment and decree

dated 26.5.2008 passed by learned Civil Judge (Junior

Division), Court No.2 Palampur, District Kangra, H.P. in Civil

Suit No. 5/2006 was reversed.

1 Whether reporters of print and electronic media may be allowed to see the order?

2. The respondent herein (hereinafter referred to as

"plaintiff") filed a suit for possession of the land comprised in

Khata No. 33, Khatauni No. 68, Khasra No. 396, measuring

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0-02-64 hectares, situated at Mohal Sughar, Mauza Bandla,

Tehsil Palampur, District Kangra, H.P. (hereinafter referred

to as the 'suit land') on the basis of his title. The appellants

herein (hereinafter referred to as "defendants") were alleged

to be in unauthorised occupation of the suit land since

December, 2004. It was specific case of plaintiff that while he

was away from the suit land in December, 2004, defendants

taking benefit of his absence had unauthorisedly occupied

the same and on his return, the defendants refused to hand

over the possession of the suit land to the plaintiff despite

his repeated requests.

3. The defendants admitted their unauthorised

occupation on the suit land. However, a plea was raised by

defendants that their father had been holding the

unauthorised occupation of the suit land even prior to the

revenue settlement, which had taken place in the year 1974-

75. Defendants asserted their open, hostile and continuous

possession on the suit land since then. As per the

defendants, plaintiff and his predecessor-in-interest were

aware about the unauthorised occupation of the defendants

and their predecessor-in-interest on the suit land right from

the beginning. As a matter of fact, plaintiff and his father in

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the year 1990-92 had also approached the Assistant

Collector for correction of revenue entries in respect of the

suit land by way of application bearing case No.19 of 1990,

which incidentally was dismissed.

4. In replication, the plaintiff denied the averments

made in the written statement by the defendants and

reiterated the contents of the plaint.

5. On the basis of the pleadings of the parties, the

following issues were framed by learned trial Court:

1. Whether the plaintiff is recorded as owner of the suit land as alleged? OPP

2. Whether in December 2004 the plaintiff was

forcibly dispossessed from the suit land by the

defendants as alleged? OPP

3. Whether the plaintiff is entitled to the decree of

possession against the defendants qua suit land, as prayed? OPP

4. Whether the defendants have become owners of the suit land by way of adverse possession, as alleged? OPD

5. Whether the plaintiff has no cause of action and locus standi? OPD

6. Whether the suit is barred by limitation? OPD

7. Relief.

Issues No. 1 and 4 to 6 were decided in affirmative. Issues

No. 2 and 3 were decided in negative and consequently, the

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suit of the plaintiff was ordered to be dismissed. The

defendants were held to have perfected their title over the

suit land by way of adverse possession by specifically

deciding issue No.4 in affirmative.

6. In appeal filed by the plaintiff under Section 96 of

the Code of Civil Procedure (for short the 'Code'), learned

Appellate Court reversed the findings returned by learned

trial Court. The appeal of the plaintiff was accepted and a

decree of possession was passed in favour of the plaintiff and

against the defendants in respect of the suit land.

7. On 30.9.2013, the instant appeal had been

admitted by this Court for hearing on following substantial

questions of law:

1. Whether the findings of the lower Appellate Court are illegal, erroneous and perverse that the suit is within limitation by ignoring material evidence i.e. Ex. D-1 and Ex. D-2?

2. Whether the lower Appellate Court has committed grave error of law and jurisdiction in decreeing the suit by rejecting the claim of

defendant to have become owner by afflux of time i.e. adverse possession especially when the hostile possession of the defend was proved much prior to the year 1974-75 when settlement took place which recorded the possession of

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defendant-appellant in the capacity of "Billa' Sifat" and even thereafter when the plaintiff himself filed an application for correction of

revenue entries which was ultimately dismissed on 15.10.1992 by ignoring Ex. D-1 and misunderstanding and misapplying the correct

ratio of the ruling quoted in the impugned judgment?

8.

I have heard learned counsel for the parties and

have also gone through the records of the case carefully.

9. Learned Senior Counsel for the defendants

contended that the judgment and decree passed by learned

first appellate court was unsustainable firstly, for the

reasons that the proof of hostility of the possession of

defendants for requisite period was not considered in right

perspective and further the learned first appellate court had

laid undue emphasis on proof of initial date of

commencement of adverse possession, secondly the factum

of dismissal of correction application of plaintiff vide Ext. D-1

was wrongly appreciated and lastly, the plea of adverse

possession of defendants was illegally rejected on irrelevant

consideration of non-joinder of necessary parties.

10. Reliance was placed upon the following excerpts

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from judgments passed by this Court in (1999) 1 Sim. L.J.

174, State of Himachal Pradesh vs. Khazana Ram to

suggest that in the present case also the unauthorised

possession of defendants and their predecessor was proved

atleast since 1974-75, when the settlement in the area had

taken place:

"4. On perusal of the record, I find that the possession of the

respondent is reflected for the first time in the jamabandi of

the year 1959-60 Ext.DW-1/5. As presumption of correctness is attached to this document, the presumption would take us back to four years earlier. It would, thus,

mean that the respondent's possession over the suit land would relate back to the year 1955-56. The next following jamabandi placed on record is Ex.DW-1/B, which is of the

year 1963-64. Jamabandi for the year 1969-70 is Ex.DW-

1/C and likewise jamabandi of the year 1974-75 is Ex.DW- 1/D. Jamabandi of the year 1979-80 is Ex.DW-1/E and jamabandi of the year 1984-85 is Ex.DW-1/F. Jamabandi of

the year 1988-89 which is from 'Missal Hakiyat' is Ex.DW- 1/G. In the jamabandi Ex.DW-1/H of the year 1989-90, the possession of Khazana Ram is recorded without payment of any rent. In the rent column, it is recorded as 'BILA LAGAN BAWAZA KABZA'. In the other jamabandis as noticed above the entry in the rent column is identically the same. In the jamabandi of the year 1974-75, in column No.13 it is

recorded that the ownership has not changed from Gram Panchayat in favour of the State of Himachal Pradesh.

6. Coming to the first jamabandi in favour of the respondent of the year 1959-60 Ex.DW-1/S is the Nagar Panchayat that is recorded as owner and the respondent is recorded in the

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possessory column as 'G MAROOSI' as (If) this word has

appeared in isolation some meaning could be given to it. Strangely enough in column No.7 pertaining to 'Lagan' it is

recorded "BILA LAGAN BAWAZA NAZAIJ KABZA". It would, thus, follow that the respondent has been in possession of the suit land unauthorisedly and without payment of any rent. Ex.PW-1/A is the report made by the revenue Patwari

suggesting appropriate action as the possession of respondent Khazana Ram was found to be illegal. Patwari has also appeared as PW-1 in this case. In cross-

examination he has made a funny statement. It has been

said by him that the unauthorised possession was found at the time of check-up but he did not record it in the 'rapat roznamcha'. Towards the end of his statement it has been

categorically said by him that the possession of the respondent over the suit land since 1959-60 is unauthorised.

11. In addition, parity has been sought by placing

reliance of para 28 of the judgment passed by this Court in

(2012) 2 Latest HLJ (HP) 775, Ran Singh and others vs.

Thunia and others and which reads as under:

"28. It was pleaded on behalf of the plaintiffs in para 3 of the plaint that the defendants had taken forcible possession of the suit land on 28.7.1984. However, plaintiff No.1 Shri Ran Singh, while appearing as PW-1 on 26.5.1999, has stated in chief examination that the

defendants have taken forcible possession of the suit land about 10-12 years back, that is, somewhere in 1987/1989. Thus, there is a marked variance between the pleadings set up on behalf of the plaintiffs and the evidence led to prove the same. In cross-examination, though PW-1 Ran Singh

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has denied that in 1980, the plaintiffs had asked the

defendants to vacate the suit land, yet he has categorically admitted that in 1981, when they had asked the

defendants to vacate the suit land, they had assured that they would vacate the same sooner or later. In further cross-examination, he has stated that 'Bandobast' (settlement) had taken place in the area in 1980-81. It is

further admitted by him that the defendants did not vacate the suit land since settlement till the day he was making statement in the Court on 26.5.1999. Thus, it is apparent

that the plaintiffs did not take any steps for restoration of

possession of the suit land from the defendants, despite the fact that they had been asserting hostile title to the same since 1981, when settlement had taken place in the area

and since the suit was filed only on 15.2.1995, that is, after more than 12 years, the same was, on the face of it, barred by time."

12. In the case in hand the defendants have been able

to prove existence of continuous entries in the records of

rights showing their possession over suit land. It is also

evidently clear that the possession of defendants or their

predecessor over the suit land has been recorded without

any specific status. The entry of possession in favour of

defendants has also continued since settlement in the year

1974-75. The existence of such fact has also found

concurrence in the judgments of learned trial and first

appellate courts. Nonetheless, the question remains whether

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the defendants can be said to have proved perfection of title

over the suit land by way of adverse possession?

13. To succeed in plea of adverse possession, the first

and foremost requirement is assertion and proof of hostile

title by the possessor in denial of the title of true owner. The

hostility of title would mean claim to the property as owner

by clearly denying the title of true owner. Thereafter, the

uninterrupted, open and hostile possession has to follow for

the period of 12 years as prescribed under Article 65 of the

Limitation Act. Hence, the need for proximal time when such

assertion was first made becomes relevant. Reference in this

regard can be made to the following expositions of law

rendered by Hon'ble Supreme Court and this Court:

i) (2004) 10 SCC 779, Karnataka Board of

Wakf vs. Government of India and others;

"11. In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and

asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well- settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is,

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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. (See : S M Karim v. Bibi Sakinal AIR 1964 SC 1254, Parsinni v. Sukhi (1993) 4 SCC 375 and D N

Venkatarayappa v. State of Karnataka (1997) 7 SCC 567). Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual

owner are the most important factors that are to be

accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse

possession should 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 has continued, and (e) his possession was open and undisturbed. A person

pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for

him to clearly plead and establish all facts necessary to establish his adverse possession. (Dr. Mahesh Chand Sharma v. Raj Kumari Sharma (1996) 8 SCC 128).

ii) (2005) 8 SCC 330, Saroop Singh vs. Banto and others;

"29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date of defendant's possession becomes adverse. (See Vasantiben Prahladji Nayak vs. Somnath

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Muljibhai Nayak, (2004) 3 SCC 376.

30. "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 Mohd. Mohd. Ali vs. Jagadish Kalita (2004) 1 SCC 271, para 21)."

iii) (2010) 3 Sim.LC 156, Gurdas and

another vs. Devi Singh and others;

"12. In Karnataka Board of Wakf v. Government of

India and others, (2004) 10 Supreme Court Cases 779, the Hon'ble Supreme Court has enunciated broad

parameters required to be established by a person who

claims adverse possession, vide para 11 of the judgment, which is to the following effect:

"In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly

asserting hostile title in denial of the title of true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario" that is, peaceful, open and

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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. (See : S M Karim v. Bibi

Sakina, Parsinni v. Sukhi and D.N Venkatarayappa v. State of Karnataka). Physical fact of exclusive possession and the

animus possidendi to hold as owner in

exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse

possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should

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 has continued, and

(e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma)."

13. The Hon'ble Apex Court while reiterating the above ingredients has further held in T. Anjanappa and others v. Somalingappa and another, (2006) 7 Supreme Court Cases 570 "that mere possession

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howsoever long does not necessarily mean that it is adverse to the true owner" vide para 20 of the

judgment, which goes thus:

"It is well-recognized proposition in law that mere possession however long does not necessarily means 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

possession must be open and hostile enough

to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of

the adverse possessor actually informing the real owner of the former's hostile action."

14. In another authoritative and exhaustive pronouncement of law reported as P.T Munichikkanna Reddy and others v. Revamma and others, (2007) 6 Supreme Court Cases 59, the Hon'ble Supreme Court

has further emphasized that (1) starting point of adverse possession is of equal importance; (2) even an unduly long and undisturbed possession does not prove the intention of the person claiming title by adverse possession; (3) the initial burden lies on the land owner

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to prove his title and possession, the onus then shifts to other side to prove title by adverse possession and (4) since right to property is a human right, adverse

possession should be considered in that context against the background that Courts around the world are taking an unkind view to the concept of adverse

possession, should be kept in mind."

(iv) In Ran Singh (supra), this Court in para 21 of the

judgment observed as under:

"21. In another authoritative and exhaustive pronouncement of law, reported as Konda Lakshmana Bapuji (supra) the Hon'ble Supreme Court has further

emphasized as under, in para 53 of the judgment." The question of a person perfecting title by adverse possession is a mixed question of law and fact. The

principle of law in regard to adverse possession is

firmly established. It is a well-settled proposition that mere possession of the land, however long it may be, would not ripen into possessory title unless the

possessor has 'animus possidendi' to hold the land adverse to the title of the true owner. It is true that assertion of title to the land in dispute by the possessor would, in an appropriate case, be sufficient indication of the animus possidendi to hold adverse to the title of the true owner. But such an assertion of title must be clear and unequivocal though it need not

be addressed to the real owner. For reckoning the statutory period to perfect title by prescription both the possession as well as the animus possidendi must be shown to exist. Where, however, at the commencement of the possession there is no animus

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possidendi, the period for the purpose of reckoning

adverse possession will commence from the date when both the actual possession and assertion of title

by the possessor are shown to exist. The length of possession to perfect titles by adverse possession as against the Government is 30 years."

14. Proof of long standing unauthorised possession can

only be a relevant trait for consideration of plea for acquisition

of title by adverse possession but cannot be the sole criteria.

The underlying principle remains the proof to possess the land

of another as owner with requisite hostile animus, as

discussed above, and further proof of uninterrupted, open,

peaceful continuity of same state for 12 years. Since, by plea of

adverse possession, rightful title of someone is sought to be

taken away, a heavy burden lies upon the defendants to prove

the plea of adverse possession. In case of failure to prove the

adverse possession, any other form of possession howsoever,

long, cannot be held sufficient to non-suit the plaintiff in his

prayer for possession of the suit land on the basis of title.

15. Reverting to the facts of the case, I have not been

able to find the specific pleading and proof as regards the

assertion of title over the suit land and the proximal period

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therefor that too in clear hostility over the title of true owner.

The material on record does not suggest that the defendants

had ever expressed their specific hostile animus to hold the

possession of suit land as owners by denying the title of

plaintiff or his predecessor-in-interest. That being so the

defendants cannot be held to have perfected the title over the

suit land by way of adverse possession. Defendants have failed

to discharge the necessary burden of proof.

16. As regards the implication of document Ext. D-1, the

only fact that can be said to have been established is the filing

and dismissal of correction application by the plaintiff and his

predecessor in respect of suit land as against the defendants.

No further inference can be drawn in absence of perusal of

pleadings made by the parties in said proceedings and also in

absence of exact reasons for rejection of the application. Thus,

Ext D-1 cannot be used to the benefit or detriment of case of

either of the parties.

17. The question as to non-joinder of the other

co-owners, in the given facts of the case, is answered by

holding that the defendants were required to contest the claim

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of plaintiff as raised in the plaint and the defendants, thus,

were within their rights to raise the defence of adverse

possession to defeat the claim of plaintiff. Since, this court has

already held the claim of defendants regarding adverse

possession as "not proved", no further exploration on the plea

18. to of non-joinder of necessary parties is required.

The substantial questions of law as framed in the

instant appeal are decided accordingly.

19. In view of above discussion, there is no merit in the

appeal and the same is dismissed with no orders as to costs.

Decree dated 17.07.2013 passed by learned Additional District

Judge (II), Kangra at Dharamshala, District Kangra, H.P. in

RBT Civil Appeal No. 218-P/10/08 is affirmed. Decree sheet be

drawn accordingly.

Appeal stands disposed of, so also all pending

miscellaneous application(s) if any.

    28th July, 2023                                    ( Satyen Vaidya)
          (GR)                                                Judge