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2011 Supreme(P&H) 850
PUNJAB & HARYANA HIGH COURT
Rakesh Kumar Jain, J.
Basant Kaur (Dead) Through Her Lrs.
Versus
Bhag Singh
Regular Second Appeal No. 593 of 1985,
Decided On : MARCH 22, 2011
The main legal point established in the judgment is that permissive possession at the inception does not become adverse merely by passing of long time in the absence of requisite animus. The possession must be unauthorized from the beginning, with hostile assertion and acquiescence of the true owner for over a period of 12 years as provided under Article 65 of the Limitation Act, 1963.
Headnote:
Adverse Possession - Property Dispute - Limitation Act, 1963 - Article 65 - Roop Singh v. Ram Singh, Thakur Kishan Singh v. Arvind Kumar, Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, Annakili v. Vedanayagam, P.T. Munichikkanna Reddy v. Revamma, Joginder Pal v. Angad Singh - The court discussed the legal provisions related to adverse possession and held that permissive possession at the inception does not become adverse merely by passing of long time in the absence of requisite animus. The possession must be unauthorized from the beginning, with hostile assertion and acquiescence of the true owner for over a period of 12 years as provided under Article 65 of the Limitation Act, 1963.
Fact of the Case:
The plaintiff claimed ownership and possession of the land, while the defendants claimed adverse possession based on long possession without payment of rent for religious purposes. The lower courts dismissed the plaintiff's suit, concluding that the defendants had become owners of the land by virtue of adverse possession.
Finding of the Court:
The court found that the defendants' possession was permissive, not hostile, and had not ripened into ownership by way of adverse possession. The court allowed the appeal, setting aside the judgment and decree of the lower courts.
Issues: The main issue was whether the defendants could be declared owners in possession of the land in dispute based on long possession without proving their possession to be open, continuous, and hostile against the true owner.
Ratio Decidendi: The court held that permissive possession at the inception does not become adverse merely by passing of long time in the absence of requisite animus. The possession must be unauthorized from the beginning, with hostile assertion and acquiescence of the true owner for over a period of 12 years as provided under Article 65 of the Limitation Act, 1963.
Final Decision: The court allowed the appeal, holding that the defendants were in permissive possession without payment of rent for discharging religious functions and their possession had not ripened into ownership by way of adverse possession.
Rakesh Kumar Jain, J.
1. The plaintiff is in second appeal against the judgment and decree of the Courts below by which his suit for declaration and permanent injunction has been dismissed.
2. In brief, the case set up by the plaintiff is that he is owner in possession of land measuring 04 Kanals 18 Marlas, comprised in Khewat No 578, Khatauni No.871, Rectangle No.365, Killa No.3/3 measuring 01 Kanal 05 Marias and Killa No.4/1 measuring 03 Kanals 13 Marias, situated within the revenue estate of Muktsar, which has been purchased by him from Gajjan Singh and Baggu Singh on 13.05.1965 and since then he is in its possession but name of one Attar Singh Chela Bhai Gulab Singh is recorded in the revenue record despite the fact that said Attar Singh had died 20 years ago. The suit was filed because the defendants threatened to disturb his possession. The suit was contested by the defendants on the ground that the plaintiff is neither owner nor in possession of the suit land rather they are in continuous possession of the suit land for the last more than 40 years as initially it was in possession of Attar Singh Chela Gulab Singh of Dera Bhai Mastan Singh without payment of any rent on account of Dharamarth and after his death Santa Singh, Bhag Singh Chela Mahant Dalip Singh were in possession of the suit land. On the pleadings of the parties, following issues were framed by the learned Trial Court:-
"1. Whether the plaintiffs is owner in possession of the suit land and thus entitled to declaration prayed for? OPP
2. If issue No.l is proved, whether the plaintiff is entitled to the injunction prayed for? OPP
3. Whether the defendant has become owner by adverse possession? OPD
4. Relief."
3. Although the suit of the plaintiff has been dismissed by both the Courts below, yet the learned First Appellate Court has recorded the following findings:-
"1. The contention of the learned counsel has force in it only to the extent that Attar Singh died more than 20 years ago so in his personal capacity he cannot be said to be in possession of the suit land. To that extent, the entries in the jamabandi cannot be said to be correct. However, the learned counsel for the respondents submitted that though Attar Singh chela Bhai Gulab Singh is entered to be in possession of the suit land, but his possession in his life time was on behalf of Dera Bhai Mastan Singh and that is why he is entered in the jamabandi as chela Bhai Gulab Singh Bila Lagaan Bawaja Dharam Arth.
2. If Attar Singh died more than 20 years ago, then the other functionaries of Dera Bhai Mastan Singh continued in possession of the suit land though in jamabandis the name of the Dera is not mentioned.
3. That after the death of Attar Singh, Mohtmims Kishan Singh and Santa Singh remained in cultivating possession of the suit land and after the death of Santa Singh, Bhag Singh chela entered in possession of the suit land. They have not been recorded in the revenue record as occupants.
4. If the property was dedicated or gifted to Dera Bhai Mastan Singh as Dharamarth then that gift was complete by delivery of possession and no registered document was required.
5. "No evidence was produced by the respondents and even Mukhtiar Singh who was examined as DW.1 deposed that Harnam Singh appellant cultivated the suit land f6r the last 18 years and then two more witnesses of the defendants, who were present were given up having been won over."
6. Undoubtedly, the defendant did not step into the witness box as the evidence was closed under Order 17 Rule 3 CPC. But no adverse inference can be drawn against he respondents on this count as application dated 17.12.1982 was moved by them for permission to produce khasra girdawaris and to examine the defendant but that application was dismissed by the learned lower Court on 22.01.1983.
7. From long possession, there arises a presumption of adverse possession in favour of the respondents.
8. Attar Singh remained in possession of the suit property even
