Shri Karam Singh vs Shri Hoshiar Singh

Rajiv Sharma, J.—This Regular Second Appeal is directed against the judgment and decree, dated 11.07.2002, passed by the learned Additional District Judge-II, Kangra at Dharamshala, in Civil Appeal No. 10-N/2001. ''Key facts'' necessary for the adjudication of this Regular Second Appeal are that the respondent-plaintiff (hereinafter referred to as ''the plaintiff'' for the sake of convenience) has filed a suit for possession of land comprised in Khata No. 11 min, Khatauni No. 12 min, Khasra No. 224, measuring 0-05-66 hectares, situated in Tikka Kapahri, Mauza Hadwal, Tehsil Nurpur, District Kangra, H.P. (hereinafter referred to as ''the suit land'' for the sake of convenience) against the appellant-defendant (hereinafter referred to as ''the defendant'' for the sake of convenience). It is pleaded that the suit land is owned by the plaintiff and other co-sharers. However, it has been entered in the name of the defendant as kabaz in the column of possession. Prior to the settlement, it was in the possession of the plaintiff and the defendant in connivance with the settlement officials without the knowledge of the plaintiff, got the entry of kabaz made in his favour, although the possession continued to be with the plaintiff. The plaintiff purchased the share of the other co-sharers and became full owner of the suit land. The suit land was in possession of the plaintiffs till Rabi, 1986. The defendant taking advantage of the wrong entry, has encroached upon the suit land illegally. The plaintiff requested the defendant to vacate the possession, but he did not agree.

The suit was contested by the defendant. According to the defendant, neither the plaintiff nor other co-sharers are owners of the suit land and he has become owner of the same by way of adverse possession, being in possession of the suit land since June, 1981 and has become the owner of the same in the month of June, 1993.

The trial Court framed the issues on 17.03.1998. The suit was decreed by the learned trial Court on 01.12.2000. The defendant preferred an appeal before the learned Additional District Judge-II, Kangra at Dharamshala. The same was dismissed on 11.07.2002. Hence this Regular Second Appeal.

This Regular Second Appeal was admitted on the following substantial question of law on 21.11.2002:

Whether both the Courts below have misread and mis-interpreted the oral and documentary evidence on record to reject the plea of the appellant-defendant that he is in adverse possession of the suit land?

Mr. Sanjay Dutt Vasudeva, learned counsel for the appellant has vehemently argued that both the Courts below have mis-read and mis-appreciated the oral as well as documentary evidence led by the parties, more particularly, Ex.-D1, copy of jamabandi for the year 1996-97, Ex.-D2, copy of jamabandi for the year 1991-92, Ex.-D3, copy of jamabandi for the year 1983-84, Ex.-D4, copy of jamabandi for the year 1981-82 and Ex.-D5, copy of jamabandi for the year 1977-78.

Mr. R.K. Gautam, learned Senior Advocate has supported the judgments and decrees passed by both the Courts below.

I have heard the learned counsel for the parties and gone through the pleadings carefully.

Plaintiff has placed on record the copy of jamabandi for the year 1996-97, Ex.-P1, copy of jamabandi for the year 1991-92, Ex. P-2, copy of jamabandi for the year 1982-83, Ex. P-3 and copy of jamabandi for the year 1977-78, Ex. P4. In copy of jamabandi for the year 1996-97, Ex.-P1, the name of the plaintiff is recorded in the column of ownership and in the column of cultivation and the name of the defendant has been recorded as Kabaz with no entry in the column of rent.

PW-1 has deposed that he is owner of the suit land. The land was in his possession. However, during settlement, the defendant encroached upon the suit land. He requested the defendant to vacate the possession. However, the defendant did not agree. PW-2 Nek Ram has also supported the version of the plaintiff. According to him, the plaintiff was owner of the suit land.

The defendant has appeared as DW-1. According to him, he was owner of the suit land since June, 1981 and his possession was within the knowledge of the plaintiff. Plaintiff requested him to vacate the land. However, he refused to vacate the same. DW-2 Vijay Kumar has deposed that the defendant is the owner of the suit land as the suit land is in possession of the defendant since 1981. The defendant has also placed on record copy of jamabandi for the year 1996-97, Ex. D-1, copy of jamabandi for the year 1991-92, Ex.-D2, copy of jamabandi for the year 1983-84, Ex.-D3, copy of jamabandi for the year 1981-82, Ex.-D4 and copy of jamabandi for the year 1977-78, Ex.-D5. The defendant has neither stated in his written statement nor while he has appeared as DW-1 that whom he has dispossessed. DW-2 Vijay Kumar has categorically stated that the defendant came to village in the year 1981. He purchased the land in the year 1981 and he was in possession of the suit land. He has never encroached upon any land.

The defendant though has taken the plea of adverse possession, but has not proved the necessary ingredients. Mere long possession of the defendant will not ripe in adverse possession. The defendant was required to prove that his possession was continuous, uninterrupted and hostile. It has come on record that the plaintiff was in possession of the suit land till 1986. The defendant has not placed on record any order, on the basis of which, the entries have been changed to the detriment of the plaintiff. The entries can not be changed unilaterally without the orders of the competent authority. Though there is presumption of truth attached to the jamabandis, but in this case, the same stood rebutted by the plaintiff. The Courts below have correctly appreciated the oral as well as documentary evidence, including Ex.-D1, copy of jamabandi for the year 1996-97, Ex.-D2, copy of jamabandi for the year 1991-92, Ex.-D3, copy of jamabandi for the year 1983-84, Ex.-D4, copy of jamabandi for the year 1981-82 and Ex.-D5, copy of jamabandi for the year 1977-78.

Their Lordships of the Hon''ble Supreme Court in Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan and Others, have held that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his title was hostile to the real owner and amounted to denial of his title to the property claimed. Their Lordships have held as under:

In Secy. of State for India In Council V. Debendra Lal Khan it was observed that the ordinary classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario and the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.

This Court had an occasion to examine the concept of adverse possession in T. Anjanappa V. Somalingappa. The Court observed that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his title was hostile to the real owner and amounted to denial of his title to the property claimed. The Court further observed that: (SCC p. 577, para 20)

20.......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.

There is no substantial question of law involved in this Regular Second Appeal.

Accordingly, in view of the observations and analysis made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed, so also the pending application(s), if any. No costs.