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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Satyen Vaidya, J.
Shri Prem Singh - Appellant
Vs.
Shri Kartar Singh & Ors. - Respondents
RSA No. 59 of 2021
Decided On : 10-05-2023
Code of Civil Procedure, 1908 - Section 100 & Order 2 Rule 2 - Suit for declaration - Grant of decree of possession - Appellant has assailed judgment and decree whereby judgment and decree has been set aside and counter claim of respondents No.1 and 2 has been decreed – Plaintiff having taken plea of adverse possession could not have denied title of defendants No.1 and 2 - Para 11.
Finding of the Court:
Plaintiff was held to have not acquired title over suit land by way of adverse possession, natural consequence would be that plaintiff was not having better title over suit land than true owner - That being so, true owners were within their rights to claim possession of suit land from plaintiff on basis of their title - Plaintiff had admitted defendants No.1 and 2 as owners of suit land - It is trite that adverse possession can be claimed only against true owner - Plaintiff having taken plea of adverse possession could not have denied title of defendants No.1 and 2 - Further, plaintiff having failed to prove issue No.1 in his favour, was bound to fail in his pursuits to contest claim put forth by defendants No.1 and 2 by way of counter claim - Findings returned by learned First Appellate Court are based on record, which otherwise is inevitable legal consequence of failure of plaintiff to establish plea of adverse possession.
Result: Appeal dismissed.
JUDGMENT :
Satyen Vaidya, J.
By way of instant Regular Second Appeal, appellant has assailed the judgment and decree dated 15.12.2020 passed by learned Additional District Judge-1, Kangra at Dharamshala, District Kangra, H.P. in Civil Appeal No. 09-J/XIII/2014 (RBT C A No. 81-J/XIII/20/14, whereby the judgment and decree dated 15.11.2013 passed by learned Civil Judge (Junior Division), Jawali in Counter Claim No. 52/2013/2003 has been set aside and counter claim of respondents No.1 and 2 has been decreed.
2. The parties hereafter shall be referred by the same status as they held before the learned trial Court.
3. Appellant was plaintiff and non-counter claimant in Civil Suit No. 47 of 2003 and Counter Claim No. 52/2013/2003 respectively before the trial Court. Respondents No.1 and 2 along with respondents No.4 and 5 were defendants in Civil Suit No. 47 of 2003. Respondents No.1 and 2 were counterclaimants in Counter Claim No. 52/2013/2003.
4. Brief facts necessary for adjudication of this appeal are that plaintiff/non-counter claimant filed a suit for declaration to the effect that he had become owner of the suit land by way of adverse possession and the sale deed in respect of the suit land executed by defendant No.1 in favour of defendants No.3 and 4 was null and void. Defendants No.1 and 2 also filed a counter claim seeking decree of possession of the suit land against the plaintiff and proforma defendant.
5. Learned trial Court framed the following issues:-
1. Whether the plaintiff has become owner of the suit land by way of adverse possession, as alleged? OPPP
2. Whether the sale deed dated 01.02.1999 executed by defendant No.1 in favour of defendants No.3 & 4 is null and void, as alleged? OPP.
3. Whether defendants No.1 & 2 are entitled for vacant possession of portion of suit land by way of counter claim, as alleged? OPDs 1 & 2.
4. Whether defendants No.3 & 4 are bonafide purchasers for valuable consideration, as alleged? OPDs-3 & 4.
5. Whether the suit of the plaintiff is barred under Order 2, Rule 2 CPC, as alleged? OPD.
6. Whether the suit of the plaintiff is not maintainable in the present form? OPD
7. Whether the Civil Court has no jurisdiction to try the present suit? OPD.
8. Whether the suit of the plaintiff is bad for non joinder of necessary parties? OPD.
9. Relief.
6. Except issues No. 4 and 6, all other issues were decided in negative. The suit of the plaintiff as also the counter claim of defendants No.1 and 2 were dismissed. Learned trial Court held that the plaintiff had failed to prove his adverse possession over the suit land. The counter-claim of the defendants No.1 and 2 was also dismissed on the premise that they had failed to prove the necessary ingredients for grant of decree of possession.
7. Plaintiff filed first appeal against the dismissal of suit by learned trial Court and his appeal was dismissed. Regular Second Appeal filed by plaintiff was also dismissed by this Court on 17.05.2017 as RSA No. 141 of 2017. The judgment passed by this Court in RSA No. 141 of 2017 has attained finality. Defendants No.1 and 2 also filed first appeal against dismissal of their counter claim. Appeal was allowed by the first Appellate Court and the decree for possession was passed in favour of defendants No.1 and 2. Plaintiff approached this Court by way of RSA No. 37 of 2017 against the judgment and decree passed by First Appellate Court, whereby the counter claim of defendants No.1 and 2 was decreed. This Court vide judgment dated 16.10.2019 remanded the matter back to First Appellate Court with direction to render specific findings on the plea of adverse possession. After remand, learned First Appellate court has passed the impugned judgment and decree, whereby again the judgment and decree passed by learned trial Court in Counter Claim No. 52/2013/2003 has been set aside and the decree for possession in respect of the suit land has been passed.
8. After hearing learned counsel for both the parties and going through the record
Findings of facts, unless shown to be perverse or suffering from grave illegality, cannot be interfered with in regular second appeal under Section 100 of Code of Civil Procedure.
Adverse possession plea fails when defendant acknowledges title and attempts purchase from owner.
The court established that a claim of adverse possession is inconsistent with acknowledgment of another's title, affirming the jurisdiction of Civil Courts in possession disputes.
The main legal point established in the judgment is the requirement to prove continuity and publicity of possession for adverse possession claims, as well as the necessity of a registered instrument ....
The main legal point established in the judgment is that adverse possession claims must be supported by evidence and cannot contradict the findings of previous suits.
The claimant must establish continuous, open, and peaceful possession to prove adverse possession, which the court found unmet in this case.
To establish adverse possession, the claimant must specifically plead and prove a hostile assertion of ownership, disclaiming the original title from a particular date, which was not accomplished her....
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