Adverse Possession - A mere long possession cannot be taken to be an adverse possession.

1. The plaintiffs having lost before the learned First Appellate Court have approached this Court through the present Regular Second Appeal.

2. The plaintiffs have filed a suit for declaration and for permanent injunction claiming that they had become owners of the suit land by way of adverse possession and as such being owners in possession are entitled to protect their possession. The plaintiffs claimed that the land measuring 3 kanals 14 marlas had remained in possession of the forefathers of the plaintiffs and the aforesaid possession was for a period of more than 60 years. In the meantime, consolidation took place in the village and new numbers were allotted in lieu of old numbers. The defendants were trying to dispossess them forcibly by getting revenue record changed, therefore, the suit was filed.

3. The defendants contested the suit and denied the claim of the plaintiffs. It was claimed that the plaintiffs were not even in possession of the suit land. It was also claimed by the defendants that there was some wrong entries in the revenue record which had been ordered to be corrected by the Assistant Collector. Consequently, the defendants claimed that they were owners in possession of the suit land.

4. The suit filed by the plaintiffs was decreed by the learned trial Court.

5. The defendants took up the matter in appeal. The learned First Appellate Court reappraised the entire evidence. It was also noticed that the plaintiffs had failed to give any date of commencement of their possession, as claimed by them. Another fact which was taken note of by the learned First Appellate Court was that in the revenue record, the status of the plaintiffs was being mentioned differently in different entries. In some entries the plaintiffs were described as mortgagees. In these circumstances, it was held that if the possession of the plaintiffs was permissive, then later on the same could not have turned hostile/adverse in any manner. Consequently, the appeal of the defendants was allowed and the suit of the plaintiffs was dismissed.

6. I have heard Shri Harkesh Manuja, the learned counsel appearing for the appellants at some length and with his assistance have also gone through the record of the case.

7. On a query put by the Court as to how a declaration of ownership could be sought by the plaintiffs with regard to their having become owners by way of adverse possession, the learned counsel has argued that the plaintiffs were in possession of the suit property and once their ownership had remained hostile, continuous and open for a period of more than 12 years, then they had become owners by way of adverse possession and in these circumstances, it was always open to the plaintiffs to claim a declaration of ownership.

8. The learned counsel in this regard has relied upon a judgement of Delhi High Court reported as 1995 (3) Recent Revenue Reports 348 : (AIR 1994 Delhi 337), Manmohan Service Station V/s. Mohd. Haroon Japanwala.

9. However, I find that the aforesaid argument of the learned counsel cannot be accepted.

10. At this stage, it would be relevant to notice the provisions of Article 64 and Article 65 of the Limitation Act as follows :

Description of suit Period of limitation Time from which period begins to run Article 64 For possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed. Twelve years The date of dispossession.

Article 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.

Explanation-For the purpose of this Article-

(a) Where the suit is by a remainderman, a reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisee, as the case may be, falls into possession;

(b) where the suit is b