Bachittar Singh (Since Deceased) Through His Lrs & Others vs Bachint Singh

Rakesh Kainthla, J

The present appeal is directed against the judgment and decree passed by learned Additional District Judge, Una, vide which, the appeal filed by the appellant (defendant before the learned Trial Court) was allowed and the judgment and decree passed by learned Trial Court were set aside. (Parties shall hereafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a civil suit before the learned Trial Court for seeking a permanent prohibitory injunction for restraining the defendant from raising any construction over Abadi property used as Courtyard measuring 63-49 Sq.Mtrs comprised in Khewat No. 346, Khatauni No. 1154 Khasra No. 1720 and 1722, situated in Village Basdehra, Tehsil and District Una, H.P. (hereinafter referred to as the “suit land”). It was asserted that the suit land is possessed by the plaintiffs and others. The defendant is a stranger. He was threatening to interfere with the suit land and raise construction over it. The plaintiffs requested the defendant not to do so but in vain.

Hence, the suit was filed to seek the relief mentioned above.

The suit was opposed by filing a written statement, taking preliminary objections regarding lack of locus standi & cause of action, the plaintiffs being estopped by their act and conduct and the suit being bad for non-joinder of necessary parties. The contents of the plaint were denied on merits. It was asserted that the defendant has been in possession of the suit land since the time of his predecessor-in-interest, who had purchased adjoining land/Abadi in an auction about 62 years ago. The defendant is using the suit land as a Courtyard and he has constructed a Varadha Tin Posh on it. The defendant has his Abadi over Khasra No. 1723. He owns and possesses the suit land towards the Southern side of the Abadi. He had covered the suit land before the institution of the suit. The case is pending for correction between the parties before the Settlement Collector, Dharamshala. The defendant has become owner by way of adverse possession, hence, it was prayed that the suit be dismissed.

A replication denying the contents of the written statement and affirming those of the plaint was filed.

Learned Trial Court framed the following issues on 20.10.1994:-

Whether the plaintiffs are in possession of the suit land on the spot, as alleged? OPP.

If issue no.1 is proved, whether the plaintiff is entitled to the relief claimed? OPP

Whether the plaintiff has no locus stnadi to file the suit? OPD.

Whether the plaintiff has no cause of action? OPD.

Whetherthe plaintiff is estopped by his act and conduct to file the suit? OPD.

Whether the suit is bad for non-joinder of necessary parties, as alleged? OPD.

Whether the defendant has become owner of the suit land by way of adverse possession? OPD.

Relief.

The parties were called upon to produce the evidence and the plaintiff Bachittar examined himself (PW-1), Sukhwant Singh (PW-2) and Bhagat Ram (PW-3). The defendant examined himself (DW-1) and Kulwant Singh (DW-2).

The learned Trial Court held that the defendant had failed to prove the plea of adverse possession taken by him. There is a distinction between long possession and adverse possession. An entry in the revenue record carries with it a presumption of correctness and the evidence of the defendant was not sufficient to rebut this presumption. The plaintiffs being the owners are entitled to protect their property, hence issues no.1 and 2 were answered in affirmative, other issues were answered in negative and the suit of the plaintiffs was decreed.

Being aggrieved and dissatisfied with the judgment and decree passed by the learned Trial Court, the defendant filed an appeal. Learned Additional District Judge, Una, held that the plaintiffs had failed to identify the suit land. They did not produce any site plan of their house and the house of the defendant. No demarcation was obtained to locate the suit land. A Local Commissioner was appointed by the learned Trial Court, who admitted that new construction was raised over the old Abadi. In such a situation, there is no question of encroachment on the suit land. The plea of the defendant that he had become the owner by way of adverse possession was also not proved. Hence, the judgment and decree passed by the learned Trial Court were set aside.

Being aggrieved and dissatisfied with the judgment and decree passed learned First Appellate Court, the present appeal has been filed, asserting that the learned First Appellate Court failed to appreciate the evidence led before it. The defendant had taken a plea of adverse possession and it was not necessary for the plaintiffs to obtain demarcation. The title of the plaintiffs was admitted by the defendant.

The Jamabandi was filed with the plaint and it was per-se admissible. Learned First Appellate Court erred in rejecting the plea of the title of the plaintiffs; therefore, it was prayed that the present appeal be allowed and the judgment and decree passed by the learned First Appellate Court be set aside.

The appeal was admitted on 08.05.2007 on the following substantial questions of law:-

Whether the lower Appellate Court has misread the evidence in regard to plea of adverse possession put up by defendant.

Whether there has been misreading of the evidence by the courts in regard to the demarcation of the suit land and identity of the suit property?

I have heard Mr. Neeraj Gupta, learned Senior Advocate assisted by Mr. Vedant Ranta, Advocate, for the appellants and Mr. R.P.Singh, Advocate, for the respondent.

Mr. Neeraj Gupta, learned Senior Advocate, for the plaintiffs submitted that the learned Trial Court had rightly decreed the suit.

The defendant had taken a plea of adverse possession, which means that the title of the plaintiffs was not in dispute. Both the learned Courts below have concurrently held that the plea of adverse possession was not proved; therefore, the defendant had failed to establish any title in himself. The plaintiffs are entitled to decree on the basis of their title; hence, he prayed that the present appeal be allowed and the judgment and decree passed by the learned First Appellate Court be set aside.

Mr. R.P.Singh, Advocate, learned counsel for the respondent has supported the judgment and decree passed by the learned First Appellate Court. He submitted that in the absence of any report of demarcation or the site plan, the plea of the plaintiffs regarding the possession could not have been accepted. The plaintiffs have to stand on their own legs and they cannot take any advantage of the weakness of the case of the defendant; therefore, he prayed that the present appeal be dismissed.

I have given considerable thought to the rival submissions at the Bar and have gone through the records carefully.

Substantial question of law no.1

The learned Trial Court held in para 9 of the judgment that the defendant had failed to prove the plea of adverse possession, there is a distinction between long possession and adverse possession. The defendant had not stated anything about the hostile possession in his examination-in-chief. These findings were affirmed by the learned First Appellate Court. It was held in para 13 of the judgment of the learned First Appellate Court that there was no evidence that the defendant was in adverse possession of the suit land. Hence, both courts have concurrently rejected the plea of adverse possession taken by the defendant.

The findings of the learned Courts below are duly supported by the record. The defendant stated in his statement on oath that he has been in possession of the suit land for 70 years. The ancestors of the defendant purchased Khasra No. 1723 about 70 years ago in the auction. The possession of the defendant has continued since then. A varandha covered with tin roof exists over Khasra no. 1722 and a Courtyard exists over Khasra no.1720. The total area has been covered by a boundary wall. The plaintiffs have no concern with the suit land and the entry in their name is incorrect. The defendant had become the owner by way of adverse possession.

The defendant nowhere said that he or his predecessor-in-interest had occupied the suit land in denial of the right of the true owner. It was laid down by this Court in Tilak Raj vs. Bhagat Ram & another 1997 (1) Sim.LC 281 that adverse possession means a possession expressly or impliedly in denial of the title of the true owner. It was observed:-

“11. It is well settled that adverse possession means a hostile assertion, that is, a possession which is expressly or impliedly in denial of the title of the true owner.

It is also well settled that a person who bases his title on adverse possession must plead and prove by clear and unequivocal evidence, that is, possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts of the defendant constitute adverse possession, regard has to be had to the animus of such defendant which has to be ascertained from the facts and circumstances of each case.

It is equally well settled that mere possession for howsoever long a period is not enough to claim title inasmuch as the possession has to be adverse.”

Similarly, it was held in Shishi Ram v. Megh Chand, 2012 SCC OnLine HP 5133=AIR 2013 HP 65, that the adverse possession means hostile possession expressly or impliedly in denial of the title of the true owner. It was observed:

“12. It is settled possession however necessarily mean that the true owner. Adverse law that mere long does not it is adverse to possession really 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/ roved must be adequate in continuity, 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 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 possession actually informing the real owner of the former's hostile action.”

This position was reiterated in Mast Ram v. Tejinder Singh, 2018 SCC OnLine HP 2573 = 2018 (2) Latest HLJ 1364 (H.P) and it was held that mere long possession is not an adverse possession. It was observed:-

It would be noticed that no exact date of possession has been set out in the pleadings. As per settled law, mere possession is not enough to prove the plea of adverse possession and it does not result in the conversion of peaceful possession into adverse possession.

This issue has been considered in detail by the learned Division Bench of this Court in CWP No. 306 of 2016, titled as Satpal v. State of H.P., decided on 8. 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.

In Kamla and others v. Baldev Singh and others 2008(1) Shim. LC 215, this court has held as under:

"......Moreover, in case the 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 the 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 the 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 a 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 the 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."

This court in Brij Mohan Sood v. Parshotam Singh and others 2014(1) Him. L.R. 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 a well-settled principle that a party claiming adverse possession must prove that his possession is " nec vi, nec clam, necprecario" i.e. peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in the 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 Mahesh Chand Sharma v. Raj Kumari Sharma (Smt.) and others (1996) 8 SCC 128 ).

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 the absenceoftheessential ingredientsofadverse possession, no amount of evidence can be looked into by this Court. Even otherwise, the defendant has setup a title in himself and has not acknowledged or attorned the plaintiffs to be theowners.Apartfrom preliminary objection No.1 (supra), in paragraph3 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 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. "

This court further in Deepak Parkash v. Sunil Kumar 2014 (1) Him. L.R. 654 has emphasised the requirement of the 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.

Faced with such a situation, learnedcounselforthe 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.

It is a settled law that no amount of evidence beyond pleadings can be looked into. It is further the 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 wherefore there does not exist any pleading."

In Om Parkash&ors. v. Gian Chand &Ors. 2014(2) Him. L.R. 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 requirements of the law or not. This question assumes importance because admittedly, the defendants have not spelt out any specific date from which their possession became adverse."

What is adverse possession has been dealt with in detail in Para 10 of Satpal's case supra, which reads thus:

"10. Now, adverting to the question of adverse possession, it is a well-recognised 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. 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 the law, an owner would be deemed to be in possession of the 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."

In the present case, both learned Courts below have found that the ingredients of adverse possession were not proved. These findings are supported by the evidence of the defendant. The defendant has not preferred any objections against the findings recorded by the learned Courts below; therefore, it cannot be said that the learned First Appellate Court has misread the evidence regarding the plea of adverse possession put up by the defendant. The substantial question of law is answered accordingly.

Substantial Question of law no.2:-

The defendant had taken a plea of adverse possession. It was laid down by this Court in Basant Singh Versus Kishan Dayal RSA no. 187 of 2007, decided on 13.09.2019, that when the defendant raises a plea of adverse possession, he impliedly admits the ownership of the plaintiffs over the land in dispute. It was observed:-

It is more than settled that when the defendant acknowledges the title of the plaintiff by raising a plea of adverse possession, then the relief for possession can be denied to the plaintiff only in the event the defendant proves the title by way of adverse possession or proves better title in the suit land.

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. 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 the 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&Ors., JT 2006 (10) SC 121 : (2006) 11 SCC 600].”

Therefore, the learned First Appellate Court erred in holding that the plaintiffs had failed to prove the title. The title was not in dispute because of the plea of adverse possession taken by the defendant.

The learned First Appellate Court also held that no demarcation was obtained to locate the boundaries, the site plan was not produced and the suit land was not properly identified; hence, the plaintiff is not entitled to the relief. These findings are not correct. It was laid down by this Court in Basant Singh Versus KishanDayal RSA no. 187 of 2007, decided on 13. 09.2019 that once the title of the plaintiff is admitted by taking the plea of adverse possession, the argument that property is not identifiable falls to the ground. It was observed:

“21. Once a plea of adverse possession has been raised, it not only pre- supposes the title over the suit land of the plaintiff, but it even admits the identification of the property or else this plea would be in the air. After all, if the defendant is in adverse possession, then obviously, the same is over the property in dispute or else he would not have raised such a plea. A plea of adverse possession implies an admission of title, which is supposedly extinguished.

In taking this view, I am supported by the judgment of the Punjab and Haryana High Court in Jagat Singh and others vs. Sri KishanDass and others 2008 (149) P. L. R. 67, the relevant portion whereof reads as under:

“5. The question that the plaintiff has not established the identity of the suit land or the property cannot be identified, is not borne out from the record. The defendant-appellants have raised a plea of adverse possession. Once a plea of adverse possession is raised, it pre-supposes the title over the suit land of the plaintiff. The title of the plaintiff is deemed to be admitted, and the argument that the property is not identifiable falls to the ground. Therefore, the argument raised by learned counsel for the appellants that an infructuous decree could not be passed is not made but in view of the plea of adverse possession over the suit land raised by the appellants.”

On the basis of the aforesaid reasoning, even the findings recorded by the learned Courts below to the effect that the demarcation has not been conducted in accordance with the instructions issued by the Financial Commissioner are erroneous as it was for the defendant to have established a better title than the plaintiff, especially, when he has not been able to prove his adverse possession over the suit land.”

This position was reiterated in Nek Ram v. Surjan Singh, 2019 SCC OnLine HP 1066 = 2019 (4) CivCC 834.Therefore, in view of the binding precedent of this Court, the learned First Appellate Court could not have dismissed the suit on the ground that the suit land was not properly identified.

The learned trial Court had appointed a Local Commissioner, namely, Sukhwant Singh (PW-2) who visited the spot and prepared a report (Ext.PW-2/A). He also prepared a rough site plan, which was annexed to his report. He had mentioned that the construction was being raised by Bachint Singh. He had identified the wall. The Local Commissioner did not have any difficulty in locating the suit land and it is difficult to see how the learned Courts below will have a difficulty in executing the decree.

Hence, the learned First Appellate Court had erred in dismissing the suit on the grounds of lack of identification of the suit land. The substantial question of law is answered accordingly.

Final order:

In view of the above, the present appeal is allowed and judgment and decree passed by the learned First Appellate Court are set aside. The judgment and decree passed by the learned Trial Court are restored. The record of the case be remitted back to the learned Courts below. Pending miscellaneous applications, if any, also stand disposed of.