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2012 Supreme(HP) 914
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
V.K. Sharma, J.
Ran Singh, Harbans Singh And Smt. Parsino Devi - Appellant
Vs.
Thunia, Prem Singh, And Janak Singh - Respondent
Regular Second Appeal No. 331 of 2003
Decided On : 15-06-2012
Advocate Appeared:
For the Appellant : Ajay Chandel, Adv.
For the Respondent: Ajay Sharma, Adv.
The main legal point established in the judgment is the requirement for adverse possession, emphasizing the need for open, continuous, and hostile possession, as well as the importance of animus possidendi. The judgment also recommends a fresh look at the law of adverse possession.
Headnote:
Adverse Possession - Land Dispute - Limitation Act, 1963, Article 65 - The judgment discusses the requirements for adverse possession and the burden of proof on the possessor. It highlights the need for open, continuous, and hostile possession to establish adverse possession. The court emphasizes the importance of animus possidendi and the necessity for the possessor to hold the land adverse to the true owner's title. The judgment also recommends a fresh look at the law of adverse possession, considering its harshness on the true owner and the windfall for a dishonest possessor.
Fact of the Case:
The dispute concerns a land ownership claim based on adverse possession. The plaintiffs alleged that the defendants illegally acquired possession of the land and claimed title through adverse possession. The defendants asserted that the plaintiffs were estopped from filing the suit and that they had acquired ownership through adverse possession.
Finding of the Court:
The court found that the defendants had acquired title to a part of the suit land through adverse possession, while the suit of the plaintiffs for possession of the rest of the land was decreed.
Issues: The issues included the entitlement of the plaintiffs for possession, estoppel, limitation, adverse possession, and the relief sought.
Ratio Decidendi: The court emphasized the requirements for adverse possession, including open, continuous, and hostile possession, as well as the importance of animus possidendi. It also highlighted the need for the possessor to hold the land adverse to the true owner's title.
Final Decision: The appeal succeeded in part, with the court holding that the defendants had acquired title to a part of the land through adverse possession, while the suit of the plaintiffs for possession of the rest of the land was decreed.
JUDGMENT :
V.K. Sharma, J.—The challenge herein in this regular second appeal is against the judgment and decree dated 5.5.2003, passed by the learned District Judge, Kangra at Dharamsala (H.P.) in Civil Appeal No. 129-N/XIII/2001, titled Thunia and Others Versus Ran Singh and Others, whereby the judgment and decree dated 1.1.2001, passed by the learned Sub Judge Ist Class (I), Nurpur, District Kangra, H.P., in Civil Suit No. 111 of 1995, Ran Singh and Others Versus Thunia and Others, has been reversed and the suit for possession filed by the appellants as plaintiffs against the respondents being defendants, on the basis of title, has been dismissed and the defendants have been held to have acquired title to the land in dispute, by adverse possession. The dispute between the parties concerns the land bearing khata No. 36 min, khatauni No. 48, khasra Nos. 29, 82, 225, plots 3, measuring 0-25-61 hectares, as per jamabandi for the year 1992-93, situate in Tika Gatla, Mauza Kukher Khwara, Tehsil Nurpur, District Kangra, H.P., which shall hereinafter be referred to as 'the suit land'.
2. According to the plaintiffs, the suit land is owned by them and is entered in possession of the defendants as 'Kabiz'. It is averred that prior to settlement, the suit land was entered in khata No. 24 min, khatauni No. 60 min, khasra Nos. 141, 592 and 619/215, plots 3, measuring 6 kanals 11 marlas, vide jamabandi for the year 1977-78 and was in self cultivating possession of the owners, as shown in jamabandi 1977-78.
3. It is further averred that during settlement the defendants, in connivance with the revenue officials, got the suit land entered in their possession as 'Kabiz' illegally, wrongly and against facts. Thereafter, they, without any right and in the absence of the plaintiffs and without their knowledge, took forcible possession of the suit land on 28.7.1984.
4. In the meantime, consolidation of holdings took place in the area, during which khasra numbers of the suit land were changed from 31, 73, 74 and 255 to 29, 82 and 225.
5. It was lastly averred that the possession of the defendants over the suit land, is without any legal right or status and they are mere trespassers. They have no right to remain in possession of the suit land and the plaintiffs are entitled for a decree of possession. The defendants were asked many a times to admit the claim of the plaintiffs, but from 4.2.1005, they totally refused to do so, hence the suit.
6. The suit was contested by the defendants on preliminary objections regarding locus standi, cause of action, estoppel, limitation, besides setting up the plea of adverse possession. Preliminary objections No. 3 and 5, regarding estoppel and adverse possession, which constitute written statement on merits, are to the following effect:
3. That the plaintiffs are estopped by their acts and conduct to file the suit against the defendants. Fact of the matter is that the defendants, who were coming in hostile possession over the suit land from the time of their father without payment of any rent throughout considering themselves as owner of the suit land, filed an application for correction against the plaintiffs and others, who were recorded owners on 14-8-80 with the settlement Tehsildar Nurpur. The plaintiffs were also party in that correction case and after following the proper procedure and affording due opportunity to the plaintiffs the order of correction was passed by the settlement Tehsildar Nurpur in favour of the plaintiffs and the defendants were recorded as 'kabiz' as per order dated 6-11-81 and the defendants are coming continuously in possession over the suit land. The plaintiffs never challenged the order passed in Missal No. 46/81 dated 6-11-81 till date which has become final and binding. The plaintiffs are as such estopped by their acts and conduct from filing the present suit.
5. That the defendant
