The main legal point established in the judgment is that adverse possession requires clear and unequivocal evidence of hostile possession and denial of the true owner's title, and the burden of proof lies with the party claiming adverse possession.

JUDGMENT:

S.B. Sinha, J.

The defendants are the appellants. The parties were co-owners. The suit properties are situate in two villages; 232 bighas and 10 biswas in village Samleu and 76 bighas in village Punjoh.

It is not in dispute that whereas the plaintiffs - respondents had all along been in possession of the property situate in village Samleu, the appellants are in possession of village Punjoh. Allegedly, in the revenue settlement record of rights prepared in the year 1953, joint ownership of lands situate in village Samleu was recorded. However, it was observed therein that if the predecessors of the appellants "do not give share" to the plaintiff respondent in the land in village Punjoh, the plaintiff-respondent may ask for the review of the order.

On the plea that the land situate in village Punjoh was jointly recorded, it was urged that the entry in the said record of rights attained finality.

Indisputably, however, the appellants had filed two suits; one in the year 1968 and another in 1978. In the aforementioned suits, a prayer for partition and separate possession was claimed by the appellants herein in respect of 2/3rd share in the entire land situate in village Samleu.

Admittedly, the 1968 suit was dismissed in 1977 and the 1978 suit was dismissed in 1984.

Plaintiff respondent continued to possess the properties situate at village Samleu. Plaintiff respondent filed a suit in the year 1986 for declaration of his title as also permanent injunction.

In paragraph 8 of the plaint, the plea of adverse possession was raised, which reads as under :

"The plaintiff has been in possession as owner in adverse possession on the land of the defendant No. 1 to 12, area 155 Bigha Biswa of the land for 12 years.

Hence it is appropriate to declare the possession and ownership by way of adverse possession of the plaintiff on the land in disputed land and the defendant Nos. 1 to 22 are intending to alienate the land on the basis of mere entry in the papers. Therefore, it is proper to restrain the defendant Nos. 1 to 22 from selling, leasing out and transferring the land by any means."

The Trial Court in view of the pleadings of the parties framed the following issues:

"1. Whether the plaintiff has become owner of the suit property by adverse possession as alleged?

2. Whether the defendants are in joint possession of the suit property as co-sharers?

3. Relief."

By reason of a judgment and decree dated 9.10.1987, the learned Trial Judge opined that the plaintiff had been in exclusive continuous peaceful possession of the suit land to the exclusion of the other co-owners prior to settlement which took place in the year 1953.

Analysing the evidences brought on records, the learned Trial Judge opined:

"As per statements PW-1 Bhagat Ram plaintiff and Hishiara and others during settlement in the year 1953, as per copies of Tankih No. 4 Ex. P-4, No. 10 Ex. P-16 and No. 11 Ex. P-15, it is evident that present plaintiff Bhagat Ram had asserted his hostile possession and ousters of other co-owners even during settlement in the year 1953 and as per the copy of plaint Ex. P-1 in civil suit No. 42/74 instituted by Hushiara and others, Bhagat Ram had denied the title of other co-owners on which suit for joint possession against present plaintiff Bhagat Ram was filed on 2-3-1968 for joint possession. Bhagat Ram has

denied the title of other co-owners during May, 1967 which led other co-owner to file suits for joint possession against present plaintiff Bhagat Ram which were admittedly dismissed as abatted on 24-12-1977 Ex. P-11 and 11-01-1984 Ex. P-12. It is thus evident that Bhagat Ram had been making open assertion of his hostile title coupled with exclusive possession and enjoyment to the knowledge of other co-owners which is essential for adverse possession against co-owners was held in Krishan and others, Appellants vs. Krishanoo and others Respondents AIR 1985 H.P. 103"

It had been categorically held that assertion of exclusive possession by t