M.S. Ramachandra Rao, Chief Justice.

1) This Regular Second Appeal is preferred against the judgment dt. 04.08.2018 in Civil Appeal No.18-J/2016 passed by the Additional District Judge-II, Kangra at Dharamshala, confirming the judgment and decree dt. 17.06.2016 in Civil Suit No.243/2011, passed by the Civil Judge (Junior Division), Jawali, District Kangra, Himachal Pradesh.

2) The appellant is the defendant in the civil suit.

The case of the plaintiffs

3) The respondents/plaintiffs filed the said suit for recovery of possession of land comprised in Khata no.337, Khatauni no.681, Khasra no.208, measuring 0-04-38 HM, situated in Mohal & Mauza Nagrota Surian, Tehsil Jawali, District Kangra, H.P.

4) The respondents/plaintiffs contended that they are joint owners of the said land and were in possession thereof till August, 2009, but the defendant/appellant, in collusion with the settlement authorities, got his name recorded in the column of cultivation as ‘kabiz’ over the suit land; and taking advantage of the same, in August, 2009 he took possession of the suit land illegally and unauthorizedly without the consent and behind the back of the plaintiffs and other co-sharers.

5) They contended that the defendant had no right, title or interest over the suit land, and his possession is illegal, wrongful, unauthorized and that of a trespasser.

The stand of the defendant

6) Written statement was filed by the defendant opposing the suit claim.

7) He contended that he is exclusive owner in possession of the suit land and the revenue entries showing that the plaintiffs are owners, are wrong, illegal, null & void and not binding on him.

8) According to him, the plaintiffs were never in possession of the suit land and he alone was in possession of the same from the time of his forefathers as exclusive owner.

9) He contended that the plaintiffs and their forefathers in 1958- 59, in connivance with the revenue staff, got wrong measurement of the suit land in the revenue record in their favour and on the basis of that wrong entry, they were threatening to dispossess the defendant from the suit land.

10) It is his contention that his forefathers were the owners in possession of the suit land, and after their death, he became the exclusive owner in possession of the suit land; and that is why the settlement staff rightly recorded his possession over the suit land.

Events during trial

11) In the trial Court, the plaintiff was examined as PW-1 and he marked his affidavit Ex.PW-1/A and documents Ex.P-1 to Ex.P-3, while the defendant examined himself as DW-1 and marked Ex.DW-1/A dt. 04.02.2015, which is an affidavit filed by him under Order 18 Rule 4 CPC.

12) Apart from these documents, certain other documents “A to N”, have also been marked as exhibits.

The issues

13) The trial Court framed the following issues:

“1. Whether plaintiffs alongwith other co-sharers are owners of the suit land, as alleged OPP.

2. Whether the defendant being forceful person during settlement operation, illegally got himself recorded as kabiz over the suit land, as alleged OPP.

3. Whether in the month of August, 2009, the defendant on the basis of wrong entry of kabiz took possession of the suit land, as alleged OPP.

4. Whether possession of the defendant over the suit land is illegal, wrongful and unauthorized, as alleged OPP.

5. If issue No.1 to 4 are proved in affirmative, then whether plaintiffs are entitled for a decree of possession, as prayed for OPP.

6. Whether suit of the plaintiffs is not maintainable OPD.

7. Whether plaintiffs are estopped by their own act and conduct from filing the present suit OPD.

8. Whether suit of the plaintiffs is without cause of action OPD.

9. Whether plaintiffs have got no locus standi to sue OPD.

10. Whether plaintiffs have not approached the court with clean hands and have suppressed the material facts before this court OPD.

11. Whether defendant is entitled for special cost under Section 35- A of CPC OPD.

12. Relief.”

The judgment of the trial court

14) After considering the oral and documentary evidence, the trial Court decreed the suit.

15) It held that Jamabandi Ex.P-3 for the year 1971-72, shows that the suit land is in the ownership and possession of the plaintiffs alongwith other co-sharers, that the possession of the defendant was nowhere recorded therein, but suddenly in the “Missal Haquiat Bandobast” for the year 1977-78 (Ex.P-2) and the subsequent Jamabandi for the year 2008-2009 (Ex.P-1), possession of the defendant was recorded.

16) The trial Court held that no orders of any revenue officials or any Court were placed on record by the defendant by which the possession of the defendant came to be recorded over the suit land.

17) It held that revenue entries cannot be changed except by orders of competent revenue official or by orders of a Civil Court, and there is no entry in revenue record as to how possession of the defendant was recorded over the suit land.

18) The trial Judge, therefore, concluded that in connivance with revenue officials, possession of defendant was got recorded in the revenue record; and so he concluded that the possession of the defendant was illegal over the suit land.

19) The trial Judge further held that the defendant did not place on record any Jamabandi for 1958-59 and prior or subsequent thereto, to prove their case that wrong measurements of the suit land were recorded and they were wrongly shown to have been owned by the plaintiffs. He also held that the documents “A to N” filed by the defendant only indicate that application for correction was pending, but no Kanungo or Revenue official was examined to show that wrong measurements of land owned by the defendant were carried out.

20) The trial Judge therefore concluded that when plea of wrong measurement of land raised by the defendant is not proved, and the revenue record shows the plaintiffs as owners of the suit land, then the possession of the defendant over the suit land can only be as a trespasser.

The judgment of the lower appellate Court

21) Challenging the same, the defendant filed Civil Appeal No.18-J/2016.

22) The Additional District Judge also dismissed the appeal.

23) He held that this being a suit for recovery of possession, the plaintiffs were required to prove their title; that in Ex.P-1 & Ex.P-3 Jamabandies, the plaintiffs, alongwith other co-sharers, were shown as owners though the defendant was shown to be in possession. He then referred to Ex.P-2, which was the Jamabandi for the year 1972-73, which shows that the plaintiffs alone are not only the owners, but are also in possession and concluded that for the first time the name of the defendant was included in the Jamabandi for 1977-78.

24) He then referred to the plea of the defendant that he was the exclusive owner of the suit land and noted that he did not file any material to show how he got ownership over the suit land. He therefore concluded that he is not owner of the suit land. He then referred to the application filed by the defendant for correction of wrong measurement of his land in Khasra no.656/649, which is alleged to have been made in 1958-59, and concluded that the Revenue authorities did not accept his plea. He therefore concluded that the plaintiffs, alongwith their co-sharers, were owners of the suit land and were entitled to recovery of possession.

The RSA

25) Challenging the same, this Regular Second Appeal is filed and it was admitted on 28.11.2018 to consider the following substantial questions of law:-

“1. Whether both the learned courts below erred in appreciating the provisions of law, evidence adduced by the parties and pleadings of parties in its right perspective thereby vitiating the impugned judgments & decrees

2. Whether in the absence of suit filed by all the co-sharers for possession, the same was maintainable, thus, contrary findings returned by both the learned Courts stands vitiated

3. Whether both the ld. Courts below erred in not taking into consideration the fact that the appellant/defendant from the time of his forefathers is coming in peaceful possession of the suit land. Contrary findings returned by both the learned Courts stand vitiated”

26) Counsel for the appellant contended that the judgments of both the Courts below are vitiated and deserves to be set-aside.

27) He also contended that in the absence of all the co-sharers, being plaintiffs, the suit for possession was not maintainable.

28) This plea of the appellant/defendant that all co-owners should be impleaded for maintaining a suit for eviction, cannot be accepted in view of the judgments of the Supreme Court, reported in Sri Ram Pasricha v. Jagannath and others (1976) 4 SCC 184, [LQ/SC/1976/300] India umbrella Manufacturing Co. and others v. Bhagabandei Agarwalla ( dead) by LRS (2004) 3 SCC 178 [LQ/SC/2004/4] and Mohinder Prasad Jain v. Manohar Lal Jain (2006) 2 SCC 724 [LQ/SC/2006/174] .

In all these decisions, the Supreme Court held that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners on the basis of the doctrine of agency; and that the consent of the other co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to evict the tenant.

29) The other contention of the counsel for the appellant/defendant is that the suit of the plaintiffs was barred by limitation.

30) There is no pleading in the written statement about the suit being barred by limitation. Counsel for the appellant/defendant could not explain as to how the plaintiffs’ suit should be construed as having been barred by limitation in the facts and circumstances of the case.

31) Counsel, however, contended that under Article 65 of the Limitation Act, 1963 suit for possession of the property should be filed within 12 years and, therefore, since the revenue record indicates possession of the defendant’s family from 1977-78 (Ex.P- 2), the suit is barred by limitation.

32) Article 65 states as under:-

“65. . 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.

33) A reading of the above Article indicates that the suit should be filed within 12 years when the possession of the defendant becomes adverse to the plaintiff.

34) Therefore, it is incumbent on the part of the defendant to plead when the possession started becoming adverse. In the instant case, there is no plea of adverse possession at all raised by the defendant.

35) On the contrary, he specifically pleaded exclusive ownership through his forefathers, which he was not able to establish by leading any evidence.

36) Therefore the appellant has not been able to show that the suit of plaintiffs is barred by limitation.

37) Mere wrong possession of the defendant for a period more than 12 years, without intention to possess the suit land adversely to the title of the plaintiff and too little knowledge, cannot result an acquisition of title by the defendant to the encroached suit land.(see: Deva vs. Sajjan Kumar (2003) 7 SCC 481) [LQ/SC/2003/829] .

38) After carefully scrutinizing the oral and documentary evidence on record, I am of the opinion that both the trial Court as well as the First Appellate Court, have properly appreciated the evidence on record and came to the conclusion that the defendant had failed to prove title though he pleaded it; that the plaintiffs had established their title; and that the defendant was thus a trespasser, who was, therefore, entitled to be evicted.

39) Therefore, this Regular Second Appeal fails and is dismissed.

No costs.

40) Pending miscellaneous application(s), if any, shall also stand disposed of.