Manohar Lal and Others vs Urmila and Others

Dharam Chand Chaudhary, J.—Challenge herein is to the judgment and decree dated 14.3.2001, passed by learned Additional District Judge-II, Kangra at Dharamshala, in Civil Appeal No. 40-G/97, whereby the judgment and decree passed by learned trial Court on 27.2.1997, in Civil Suit No. 284 of 1986, has been quashed and the appeal allowed. As a consequence thereof the suit filed by the appellants (hereinafter referred to as ''the plaintiff'') was dismissed.

The bone of contention in the present lis is a double storeyed house, known as "Purani Haveli" bounded in East by the land of S/Shri Kamla Parshad and Rup Lal, West that of Shri Badri Prashad, North that of S/Shri Naval Kishore, Mathra Dass and in the South there exists a public path. The suit house is over the land bearing Khata No. 50 min, Khatauni No. 82 min, Khasra Nos. 592 to 597, measuring 136.37 square meters, situate in Mohal Devital, Mauza Darang, Tehsil Dehra, District Kangra, as per entries in the Missal Hakiat for the year 1978-79, Ext. P-5. The pre-settlement Khata number of the entire abadi land over which the suit house is constructed, was 100 min, Khatauni No. 141 min and Khasra No. 452/227, measuring 532 kanals 16 marlas. A reference in this behalf can be made to the entries in the Jamabandi for the year 1972-73, Ext. P-3. The house is a joint Hindu family property of which Shri Chiranji Lal Shashtri, the father of the plaintiff was the "Karta". In a settlement arrived at in the year 1972-73, the house suit fell to the share of plaintiff and as such he became owner in possession thereof. The defendants were allowed to reside in the suit house comprising three rooms on ground floor and one room of its first floor. Their possession, as such, is permissive and the plaintiff being owner of the house is entitled to claim possession thereof from the defendants. The plaintiff is in need of the suit house as after his retirement he intended to start his legal profession and to settle in this house. He requested the defendants to hand over the possession of the suit house but of no available, hence the suit for possession of the suit house and the land beneath it.

The defendants had entered appearance and contested the suit. Besides raising preliminary objections, they came forward with the version that the plaintiff is neither owner of the suit house nor has any concern therewith in any manner whatsoever. The suit property is in their possession and prior to them in possession of their predecessor-in-interest. Also that they have been born in the suit house and residing there with their brothers and sisters, their parents were also residing in the suit house, therefore, they have become owner thereof by way of adverse possession.

In replication, the plaintiff has denied the contents of the preliminary objections being wrong. On merits, while reiterating the entire case as set out in the plaint, it is pleaded that an agreement Ext. PW-1/A was executed on 10.6.1964 by the defendant No. 1 and his mother Smt. Kapoori Devi in favour of plaintiff''s father admitting thereby the plaintiff''s father to be owner of the suit house. The defendants and their mother were allowed to live in the house by the father of the plaintiff. The possession of the defendants is, therefore, stated to be in the capacity of a licensee, hence permissive.

On the pleadings of the parties, learned trial Court has framed the following issues:

Whether the defendant is owner in possession of the suit land by way of adverse possession?

OPD.

1-A. Whether the defendants are owners of suit property as alleged?

OPD.

Whether the plaintiff has no locus standi?

OPD.

Whether the suit is not maintainable in the present form?

OPD.

Whether the plaintiff is estopped by his own act and conduct from filing the present suit?

OPD.

Relief.

The parties were put to trial on all the issues. Consequently, they produced the oral as well as documentary evidence. Learned trial Court on appreciation of the evidence available on record and taking into consideration the arguments addressed on both sides, has decreed the suit while arriving at a conclusion that the defendants are neither owners of the suit house nor their possession matured into title by way of adverse possession. The suit, therefore, was decreed for the relief of possession of the suit house in favour of the plaintiff.

As pointed out at the outset, learned lower appellate Court, however, has reversed the judgment and decree passed by learned trial Court while arriving at a conclusion that the defendants have acquired title in the suit property by way of adverse possession. The suit has, therefore, been decreed vide judgment and decree under challenge in the present appeal.

The legality and validity of the judgment and decree under challenge has been assailed on the grounds inter alia that the evidence available on record has not been appreciated in its right perspective. The findings recorded by learned lower appellate Court are not based upon the evidence available on record. The defendants in the written statement have not disputed the identification of the suit house. Otherwise also, the detailed description of the house given in the plaint and supported by the evidence amply demonstrates that there cannot be said to be any dispute qua the identification of the suit house. The findings to the contrary are the result of misreading of the evidence available on record, which has resulted in material prejudice and injustice to the plaintiff. The findings that the defendants are in adverse possession of the suit house are stated to be contrary to the records and also law, as according to the plaintiff mere long possession cannot mature into title unless the party claiming adverse possession proves the same by contending hostile and animus against the true owner. The possession of the defendants over the suit house was permissive, as per document Ext. PW-1/A. The execution of this document is stated to be proved on record from the testimony of PW-1 Som Dutt. The evidence as has come on record by way of his testimony is stated to have been misread and misconstrued. Learned lower appellate Court has allegedly erred in ignoring the evidence that title of Shri Chiranji Lal, predecessor-in-interest of the plaintiff over the suit house was admitted by Shri Roshan Lal and his mother deceased Kapoori Devi while executing the document Ext. PW-1/A. Such admission on the part of the defendants should have been used against them. Learned lower appellate Court, however, has mis-appreciated and misconstrued the same and erroneously reversed the judgment and decree passed by learned trial Court.

The appeal has been admitted on the following substantial questions of law:

Whether the first appellate Court has misread and misinterpreted the pleadings, oral and documentary evidence on record, more specifically Ext. PW-1/A, to come to the conclusion that the appellant-plaintiff has failed to prove that the respondents-defendants have not become owners by way of adverse possession?

Whether the first appellate Court has gravely erred in holding the respondents-defendants in adverse possession of the property in dispute in the absence of pleading and proof regarding hostile animus?

Shri Ashwani Sharma, learned Senior Advocate assisted by Ms. Monika Shukla, Advocate, has invited the attention of this Court to the contents of the agreement Ext. PW-1/A and the revenue record to show that Shri Chiranji Lal, the father of the plaintiff, was the owner of the suit house and in family settlement it was given to the plaintiff, at the same time, Shri Dushyant Dadwal, Advocate, has strenuously contended that the defendants are now owners of the suit house being in possession thereof since long.

As noticed supra, the substantial questions of law formulated in this appeal pertain to non-appreciation of the evidence available on record in its right perspective and as a result thereof arriving at a conclusion that the defendants being in adverse possession of the suit house have become owners thereof.

Whether there is mis-appreciation, misreading and misconstruction of the evidence available on record and the findings that the defendants have acquired title in the suit house are perverse or not, need reappraisal of the evidence available on record. True it is that as per the legal principles concurrent findings recorded by both Courts below on appreciation of the evidence should not normally be interfered with by the High Court in the second appeal, however, if there is complete misreading of the evidence and mis-appreciation of legal principles applicable to a given situation and on account of that the findings recorded by both Courts below are vitiated, the High Court can definitely interfere with the findings so recorded and impart justice to the aggrieved party.

The suit property is bearing Khasra Nos. 592 to 597. As per order of the Settlement Officer dated 12.3.1979, Ext. DX, the plaintiff having been found in possession of the suit property was ordered to be recorded as owner in possession thereof alongwith other land bearing Khasra Nos. 630, 959, 961 and 962.

If coming to the Jamabandis for the years 1989-90 and 1994-95, Ext. P-3 and Ext. P-4, respectively, the plaintiff has been recorded as owner of the suit property, whereas defendants in possession thereof. The receipt Ext. PX reveals that it is the plaintiff who has been paying the land revenue with regard to the suit property.

As a matter of fact, the suit property is part of Tika Darang, Tehsil Dehra, District Kangra. As per entries in remarks column of Jamabandi for the year 1972-73, Ext. P-2, this land was transferred from Tika Darang to Up-Mohal Devital and mutation No. 557 was attested and sanctioned in this behalf.

The defendants, as per entries in the Jamabandis for the years 1978-79 and 1988-89, Ext. P-5 and Ext. P-6, respectively, are the right-holders of Tika Darang, however, qua different land and not the suit land. The suit land, as per entries in the revenue record discussed supra is in the ownership of the plaintiff, of course, in the possession of the defendants.

Now if coming to the question that the possession of the suit property turned hostile to the owner, i.e., the plaintiff or not, needs reappraisal of the material available on record. However, before that it is deemed appropriate to discuss here as to under what circumstances the plea of adverse possession can be said to have been proved in legal parlance.

The Apex Court in State of Rajasthan Vs. Harphool Singh (Dead) Through His L.Rs., , has held that concrete proof of open, hostile and continuous possession is required in order to substantiate a claim of perfection of title by adverse possession. The relevant portion of this judgment is reproduced as under:

"When the property was a vacant land before the alleged construction was put up, to show open and hostile possession which could alone in law constitute possession adverse to the State, in this case, some concrete details of the nature of occupation with proper proof thereof would be absolutely necessary and mere vague assertions cannot by themselves be a substitute for such concrete proof required of open and hostile possession. Even if the plaintiff''s allegations and claims, as projected in the plaint, are accepted in toto, the period of so-called adverse possession would fall short by 5 years of the required period. There is no scrap of proper or concrete material to prove any such possession of the plaintiff''s father nor was there any specific finding supported by any evidenced, in this regard."

The Apex Court in Karnataka Board of Wakf Vs. Government of India and Others, has further held as under:

"10. Now we will turn to the aspect of adverse possession in the context of the present case. Appellants averred that the plea of the respondent based on title of the suit property and the plea of adverse possession area mutually exclusive. Thus findings of the High Court that the title of Government of India over the suit property by way of adverse possession is assailed.

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 take 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 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 owners and be actual, visible, exclusive, hostile and continued over the statutory period. (see: S.M. Karim Vs. Mst. Bibi Sakina, , Parsinni (Dead) by Lrs. and Others Vs. Sukhi and Others, and D.N. Venkatarayappa and another Vs. State of Karnataka and others, ). 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 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."

Our own High Court has also held so in Ashok Kumar and Others Vs. Hardyal and Others, . The relevant portion of this judgment is also re-produced as under:

"Needless to say, adverse possession should have the characteristic of adequacy, continuity and exclusiveness. There is again no dispute to the proposition that the onus to establish these characteristics is on the person claiming adverse possession. In order to appreciate the evidence in this particular behalf, the entire evidence brought on record has to be scrutinized inasmuch as, at this stage of trial, the onus of proving such an issue looses all significance and the real controversy between the parties has to be determined on the basis of the entire evidence on record."

Similar is the ratio of the judgment of our own High Court in Inder Dass Vs. State of Himachal Pradesh and Others, . The relevant portion of this judgment is re-produced as under:

"The elements which convert the peaceful possession into adverse possession are that it is actual, open, notorious, exclusive and continuous for a period of twelve years in case of private property and for a period of thirty years in the case of Government property."

Our own High Court in Gajinder Singh and Others Vs. Narotam Singh and Others, has again held that in order to prove the plea of adverse possession, the possession must be peaceful, open and continuous and also required to be adequate in continuity and in publicity. Additionally, such possession must be actual, visible, exclusive, hostile and continuous for over the statutory period. It has also been held in this judgment that in order to succeed in the plea so raised, the party is required to prove as to on what date, he/she came into possession and what was the period of such adverse possession. The relevant portion of this judgment is also reproduced as under:

"There is no dispute to the proportion that adverse possession is that possession which is peaceful, open and continuous and this possession is required to be adequate in continuity and in publicity. Not only that, it must be actual, visible, exclusive, hostile and continuous for over the statutory period. The hostile character of the possession can be inferred by the animus of the person setting up adverse possession. Before a party can succeed in establishing his title on the basis of adverse possession, he must show on what day he came into possession and what was the period of such adverse possession. Thus there must be clear assertion of hostile title. This possession must be to the knowledge of the owner."

Mere long possession is not enough to prove the plea of adverse possession. It is held so by our own High Court in Tilak Raj Vs. Bhagat Ram and Another, .

In another judgment, Badri Prakash Vs. Krishan Gopal, , this Court has again held as under:

"Howsoever long may have been the possession unless overt acts, with hostile animus are also simultaneously established, mere long possession by itself does not establish adverse possession. A person claiming adverse possession, a litigant like defendant against its real/true owner, he has to establish it beyond any shadow of doubt, because there is no right, much less equity in his favour."

Similar is the ratio of the judgment in Om Parkash versus Kulbhushan and others, 2002 (2) S.L.J. 1806 as in this case the statement of the defendant that he is in possession for more than 31 years has been held to be absolutely meaningless because as per the ratio of the judgment there must be specific point of time from where limitation for calculation of the period prescribed for adverse possession starts. Not only this, the party raising the plea of adverse possession has also to show the overt acts committed by him holding out himself to be owner of the property in question to the knowledge and exclusion to the true owner.

The legal principles have been discussed by this Court in a recent judgment dated 7.12.2015 rendered in RSA No. 356 of 2004, titled Sonam Angroop versus Khub Ram and others. After taking note of the law laid down by the Apex Court and also other High Courts including this Court, it is held as follows:

"....The defendant also admits that the suit land is vacant on the spot. He has not stated anything that he has constructed house thereon. Therefore, even if he is in possession of the suit land since the year 1952, the same cannot be said to be adverse as he has miserably failed to prove that from what point of time, the limitation for calculation of the period prescribed for adverse possession starts. Not only this, the party raising the plea of adverse possession has also to prove the overt acts attributed to him holding him to be owner of the property in question openly and in exclusion of the true owners. Mere assertions in the written statement that he is in open, peaceful and continuous possession of the suit land since the year 1952 and while in the witness box that though he is in possession of the suit land right from the year 1952, however, constructed a house thereon in the year 1975 are not sufficient to prove the plea of adverse possession."

Now if coming to the pleadings of the parties, the plaintiff''s case in a nutshell is that the defendants were allowed to reside in the double storeyed suit house comprising three rooms on ground floor and one room in the first floor. In order to identify the suit house, the case as set out in the plaint is that the same is bounded in the East by the land of S/Shri Kamla Parshad and Rup Lal, West that of Shri Badri Prashad, North that of S/Shri Naval Kishore, Mathra Dass and in the South there exists a public path. The defendants, no doubt, have denied the plaintiff being owner of the suit house, however, according to them, it is they, who are in possession thereof since time immemorial.

The plaintiff, in the replication, has set out the plea of execution of agreement dated 10.6.1964 by defendant No. 1 Roshan Lal and his mother Smt. Kapoori Devi admitting therein that the plaintiff is owner of the suit house and that they are residing with his consent.

Now if coming to the oral evidence, defendant No. 1 Roshan Lal, while in the witness box as DW-1, no doubt, has stated that they are nine brothers and sisters and all born in the same house, which is in their possession. Their predecessors-in-interest, i.e., his father and grand-father were also residing in that house. Also that his father has expired about 30-35 years ago. As per his version, the entire land in Jawalamukhi before settlement was abadi and during settlement operation they got the house and the land beneath it measured and during settlement those persons became owners, who were in possession of the abadi land. He came to know about the wrong revenue entries showing the plaintiff in possession of the suit property when he filed the suit. The plaintiff and his predecessor-in-interest allegedly have nothing to do with the suit house. Their house is at a distance of 200 yards from the suit house. The electricity connection is in their name. It is they who are carrying repairs etc., of the suit house. They admit one house, namely "Haveli" was in their possession, however, the possession thereof was taken from them by the plaintiff during the settlement operation.

It is seen that defendant No. 1, while in the witness box, has made an attempt to dispute the identity of the suit house, however, unsuccessfully because when cross-examined he has admitted the location thereof, i.e., in East bounded by the land of S/Shri Kamla Parshad and Rup Lal, West that of Shri Badri Prashad, North that of S/Shri Naval Kishore, Mathra Dass and in the South there exists a public path finds mentioned in the plaint to be correct. Not only this, but he admits that in the suit house there exists three rooms in the ground floor and one room in the first floor. This also matches with the pleadings in the plaint. Therefore, there cannot be any dispute qua the identification of the suit house. The findings to the contrary recorded by learned lower appellate Court are neither legally nor factually sustainable. Though he has been subjected to lengthy cross-examination, however, in sundry as his further statement in cross-examination is not at all relevant.

DW-2 is Shiv Dev. No doubt, he tells us about the long possession of the defendants over the suit house, however, nothing is there in his statement that since when the defendants are in possession of the suit house and when they started proclaiming themselves to be in possession of the suit house in exclusion to the plaintiff. DW-3 Chuhuru Ram and DW-4 Nathu Ram are the neighbourers. They have also stated about the long possession of the defendants over the suit house and nothing beyond that.

The plea of the plaintiff that defendant No. 1 and his mother Smt. Kapoori Devi had executed an agreement Ext. PW-1/A finds support from the testimony of PW-1 Som Dutt. As a matter of fact, it is this witness, who has stated that the document Ext. PW-1/A, was reduced into writing by Bansi Lal. The witnesses to this document are Rattan Chand and Som Dutt, i.e., PW-1. As per his version, both Bansi Lal and Rattan Chand have expired. He has stated in so many words that the agreement Ext. PW-1/A was reduced into writing at the instance of defendant No. 1 Roshan lal and said Smt. Kapoori Devi. While defendant No. 1 had signed the same, his mother put her thumb impression thereon after hearing the contents thereof and admitting the same to be true and correct, which were read over and explained to them. Though he has been cross-examined, however, nothing has come to elucidate that the agreement Ext. PW-1/A is forged and fictitious. The suggestions that the same neither bears the signature of defendant No. 1 nor the thumb impression of his mother Smt. Kapoori Devi, have been denied being wrong.

The plaintiff has also stepped into the witness box as PW-2 and proved the settlement deed (Hibanama) Ext. PW-2/A. The scribe of this document, as per this witness, was Moti Lal, who has expired. The witnesses to this document were S/Shri Nathu Ram and Lachhman. They both have also expired. His father Chiranji Lal, who executed the Hibanama was also expired. He has also supported his case that defendant No. 1 Roshan lal and his mother were residing in the suit house with his consent. The plaintiff, therefore, has also proved the case as set out in the plaint.

Therefore, what has been said hereinabove, the defendants have miserably failed to prove that they have acquired title in the suit house by way of adverse possession.

On the other hand, the plaintiff has successfully pleaded and proved that he is owner of the suit house. The possession of the defendant over the same is permissive, as they are residing in the suit house with the consent of the plaintiff. Learned lower appellate Court has, therefore, definitely misread and misconstrued not only the facts and circumstances of this case as well as evidence available on record, but also legal principles applicable in a situation like the one in the case in hand. On the other hand, learned trial Court has decreed the suit on appreciation of the evidence available on record in its right perspective. Therefore, the findings that the defendants have become owners of the suit property by way of adverse possession recorded by learned lower appellate Court are not legally and factually sustainable and the same as such deserve to be quashed and set aside whereas the judgment and decree passed by learned trial Court affirmed. The substantial questions of law are answered accordingly.

In view of what has been said hereinabove, this appeal succeeds and the same is accordingly allowed. The judgment and decree passed by learned lower appellate Court is quashed and set aside and the judgment and decree passed by learned trial Court in Civil Suit No. 284 of 1986 is affirmed. No order so as to costs.