Bhim Singh v. Zile Singh

(1) THE plaintiffs having lost before the learned First Appellate Court have approached this Court through the present regular Second Appeal.

(2) THE plaintiffs have filed a suit for declaration and for permanent injunction claiming that they had become owners of the suit land by way of adverse possession and as such being owners in possession are entitled to protect their possession. The plaintiffs claimed that the land measuring 3 kanals 14 marlas had remained in possession of the forefathers of the plaintiffs and the aforesaid possession was for a period of more than 60 years. In the meantime, consolidation took place in the village and new numbers were allotted in lieu of old numbers. The defendants were trying to dispossess them forcibly by getting revenue record changed, therefore, the suit was filed.

(3) THE defendants contested the suit and denied the claim of the plaintiffs. It was claimed that the plaintiffs were not even in possession of the suit land. It was also claimed by the defendants that there was some wrong entries in the revenue record which had been ordered to be corrected by the Assistant Collector. Consequently, the defendants claimed that they were owners in possession of the suit land.

(4) THE suit filed by the plaintiffs was decreed by the learned trial Court.

(5) THE defendants took up the matter in appeal. The learned First Appellate Court reappraised the entire evidence. It was also noticed that the plaintiffs had failed to give any date of commencement of their possession, as claimed by them. Another fact which was taken note of by the learned First Appellate Court was that in the revenue record the status of the plaintiffs was being mentioned differently in different entries. In some entries the plaintiffs were described as mortgagees. In these circumstances, it was held that if the possession of the plaintiffs was permissive, then later on the same could not have turned hostile/adverse in any manner. Consequently, the appeal of the defendants was allowed and the suit of the plaintiffs was dismissed.

(6) I have heard Shri Harkesh Manuja, the learned counsel appearing for the appellants at some length and with his assistance have also gone through the record of the case.

(7) ON a query put by the Court as to how a declaration of ownership could be sought by the plaintiffs with regard to their having become owners by way of adverse possession, the learned counsel has argued that the plaintiffs were in possession of the suit property and once their ownership had remained hostile, continuous and open for a period of more than 12 years, then they had become owners by way of adverse possession and in these circumstances, it was always open to the plaintiffs to claim a declaration of ownership.

(8) THE learned counsel in this regard has relied upon a judgment of Delhi High Court reported as 1995 (3) Recent Revenue Reports 348 : (AIR 1994 Delhi 337), Manmohan Service Station v. Mohd. Haroon Japanwala.

(9) HOWEVER, I find that the aforesaid argument of the learned counsel cannot be accepted.

(10) AT this stage, it would be relevant to notice the provisions of Article 64 and Article 65 of the Limitation Act as follows : description of suit period of limitation time from which period begins to run article 64 for possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed. Article 65 twelve years the date of dispossession. For possession of immovable property or any interest therein based on title. Twelve years when the possession of the defendant becomes Adverse to the plaintiff. Explanation For the purpose of this Article (a)Where the suit is by a remainder man, 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 remainder man, reversionary 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 judgment-debtor was out of possession at the date of the sale, the purchaser shall be deemed to be representative of the judgment-debtor who was out of possession.

(11) UNDER Article 64 of the Limitation Act, a suit for possession of immovable property by a plaintiff, who while in possession of the property had been dispossessed from such possession, when such suit is based on previous possession and not based on title, can be filed within 12 years from the date of dispossession. Under Article 65 of the Limitation act, a suit for possession of immovable property or any interest therein, based on title, can be filed by a person claiming title within 12 years. The limitation under this article commences from the date when the possession of the defendant becomes adverse to the plaintiff. In these circumstances, it is apparent that to contest a suit for possession, filed by a person on the basis of his title, a plea of adverse possession can be taken by a defendant who is in hostile, continuous and open possession, to the knowledge of the true owner, if such a person has remained in possession for a period of 12 years. It, thus, naturally has to be inferred that plea of adverse possession is a defence available only to a defendant. This conclusion of mine is further strengthened from the language used in Article 65, wherein, in column 3 it has been specifically mentioned when the possession of the defendant becomes adverse to the plaintiff. Thus, a perusal of the aforesaid Article 65 shows that the plea is available only to a defendant against a plaintiff. In these circumstances, natural inference must follow that when such a plea of adverse possession is only available to a defendant, then no declaration can be sought by a plaintiff with regard to his ownership on the basis of an adverse possession.

(12) I am supported by a judgment of delhi High Court in 1993 (3) Punjab Law reporter (Delhi Section) 70, Prem Nath wadhawan v. Inder Rai Wadhawan.

(13) THE following observations made in the Prem Nath Wadhawans case (supra) may be noticed :

"i have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have also perused the record. I do not find any merit in the contention of the learned counsel for the plaintiff that the plaintiff has become absolute owner of the suit property by virtue of adverse possession as the plea of adverse possession can be raised in defence in a suit for recovery of possession but the relief for declaration that the plaintiff has become absolute owner, cannot be granted on the basis of adverse possession. "

(14) AT this stage, it may also be relevant to notice the relevant portion of Paras 134 and 135 of the 3rd report of Law Commission of India as follows :

"if the defendant wants to defeat the right of the plaintiff, he must establish his adverse possession for over 12 years which has the effect of extinguishing the title of the owner by the operation of Section 28 of the limitation Act read with Article 144. If he fails to do so there is no reason for nonsuiting the plaintiff merely because he was not able to prove possession within 12 years. The inequity of this requirement is illustrated by the following example: If A, B and c are independent and successive trespassers on the property and the suit for possession is brought by the true owner against C, it must fail unless the plaintiff proves his possession within 12 years, though the last trespasser C was not in possession except for a short period. "

"in our opinion, Article 142 must be restricted in its application only to suits based on possessory title. The plaintiff in such a suit seeks protection of his previous possession which falls short of the statutory period of prescription, to recover possession from another trespasser. The plaintiffs prior possession no doubt entitles him to protection against a trespasser though not against the true owner. The true owners entry would be a rightful entry and would interrupt adverse possession. But if the defendant trespasser is a person who wishes to oust the plaintiff who was himself a prior trespasser or a person who did not come into possession as a trespasser but continued to hold it as such, in order to enable the plaintiff to continue his wrongful possession without disturbance and to enable him to acquire a title by adverse possession, the law must undoubtedly step in and give relief to the plaintiff. As against the true owner a person who is in possession for a length of time short of the statutory period is not entitled to any protection but the net result of the decisions under Article 142 is that the true owner must prove that he had a subsisting title on the date of suit. We therefore, suggest that in order to avoid injustice and inequity to the true owner and to simplify the law, Article 142 should be restricted to suits based on possessory title and the owner of the property should not lose his right to it unless the defendant in possession is able to establish adverse possession. "

(15) THEREFORE, it must follow that the intention behind Article 65 is clear and unambiguous i. e. not to provide any period of limitation for a suit for possession by a plaintiff on the basis of title, however, at the same time by providing a defence to a defendant of adverse possession. The defendant in such a defence would have to prove the aforesaid factum of adverse possession and, naturally, the onus of proving the aforesaid defence would be upon the defendant. The reason behind the intention of the Legislature is very clear. If a defendant is able to establish his adverse possession, then the very title of the plaintiff to the property is extinguished. But for the aforesaid defence of adverse possession, a plaintiff has no restriction of limitation to seek possession of immovable property on the basis of his title.

(16) THE judgment relied upon by the learned counsel in Manmohan Service stations case, (AIR 1994 Delhi 348) (supra)is, however, totally different and the same does not support the proposition of law canvassed by him. In the said case, the Court was dealing with a situation where the plaintiff had filed the suit for protection of his possession and had claimed injunction. It was in those circumstances that the Court had ruled that the plaintiff was entitled to protect his possession. Certain observations were also made with regard to the right of such a plaintiff to seek declaration but in my considered view the said observations are wholly obiter. As a matter of fact, the court in the said case was merely deciding an application for interim injunction filed by the said plaintiff under Order 39, Rules 1 and 2 of the Code of Civil Procedure. In these circumstances, the said authority has no application to the proposition of law canvassed by the learned counsel for the appellant and cannot be used by the present plaintiff-appellant in his favour.

(17) ALTHOUGH, as discussed above, I find that suit filed by the plaintiff was not legally maintainable, still I have heard the learned counsel for the appellants on merits of the controversy also.

(18) IT is apparent from the observations made by the learned First Appellate Court that the status of the plaintiffs had been described differently in different revenue entries and at some point of time the plaintiffs had even been described as mortgagees. In these circumstances, the plaintiffs have not been able to prove that their possession was adverse/hostile to the real owners and to the knowledge of such true owner. A mere long possession cannot be taken to be an adverse possession.

(19) IN view of the aforesaid discussion, I do not find any merit in the present appeal. The same is accordingly dismissed. Appeal dismissed.