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IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Nawab Singh
RSA No. 2417 of 2010
State of Punjab & Ors.
v.
Amandeep Singh Gill
{Decided on 09/04/2013}
Adverse Possession--Government should not be permitted to perfect the title of the land by invoking the provisions of adverse possession.
(A) Limitation Act, 1963--Adverse Possession--It is possession with animus to hold the property in the possessor’s own right and against the right of the true owner.
Adverse possession is essentially a hostile possession against the title of the true owner--It includes possession by a defendant in practical contravention of the plaintiff’s right--Normally the defendant’s adverse possession is referred when he is in exclusive possession with the intention to hold himself as the owner. (Para 11)
(B) Limitation Act, 1963--Adverse Possession--The mere fact of long user by the permissive occupant is not sufficient to alter the character of the permissive possession into an adverse one.
Where possession is proved to be in its origin permissive, it will be presumed that it continued to be of the same character until and unless something occurred to make it adverse--The onus is on the permissible occupant to show when and how his possession became adverse--In order to discharge this, there must be clear and affirmative evidence to establish the change in the character of possession--There must be an open and explicit disavowal and disclaimer brought to the knowledge of the owner. (Para 12)
(C) Limitation Act, 1963--Adverse Possession--Government should not be permitted to perfect the title of the land by invoking the provisions of adverse possession. (Para 15)
Mr. Nawab Singh, J. (Oral) - This second appeal has been filed by State of Punjab and others against the judgment and decree dated April 1st, 2010 passed by District Judge, Ferozepur affirming the judgment and decree of Additional Civil Judge (Senior Division), Ferozepur dated December 24th, 2009 whereby suit for possession of land mentioned in the head note of the plaint was decreed.
2. The parties will be referred to in this judgment as they were described in the plaint.
3. The plaintiff filed suit for possession of the suit land pleading that the land was owned by his grand father Sh. Davinder Singh, who transferred the same in favour of Zora Singh, who was Pagwat brother (foster brother) of Sh. Davinder Singh. Zora Singh executed a Will in his favour on August 30th, 1980. Zora Singh died on February 13th, 1995. After his death, mutation was sanctioned in his favour by Assistant Collector IInd Grade, Moga vide order dated October 23rd, 1997. It has been pleaded that in the first week of April, 1998, the defendants with the help of Police, forcibly took over possession of the suit land. Hence, the suit.
4. The defendants filed written-statement averring that Zora Singh sold the suit land to one Roor Singh vide sale deed dated May 15th, 1958 and Roor Singh further sold the same to the defendants on February 3rd, 1961 and on the basis of sale-deed, mutation was also sanctioned in favour of the defendants. The execution of Will by Zora Singh in favour of the plaintiff was denied. It has been also pleaded that in case the defendants fail to prove the sale-deed then they should be declared owners of the suit land on the basis of adverse possession.
5. Replication controverting the pleas of the written statement and reasserting those of the plaintiff, was filed.
6. On the contest of the parties, following issues were framed:-
1. Whether the plaintiff is entitled to possession being sole owner ? OPP
2. Whether the plaintiff is entitled to injunction as prayed for ? OPP
3. Whether the plaintiff has got no locus standi to file the suit ? OPD
3-A Whether the defendants are owners in possession of suit land vide sale deed dated 3.2.61 ? OPD
3-B If issue No.3-A remains unproved, whether defendants have become owners of suit land by way of adverse possession ? OPD
4. Whether the suit is not maintainable ? OPD
5. Whether the suit is not within time ? OPD
6. Whether no legal and valid notice u/S 80 CPC was served to the defendants ? OPD
7. Relief.
7. Issues No.1, 2, 3-A and 3-B were taken up together being inter connected. All these issues were decided in favour of the plaintiff. It was held that defendants had failed to prove their possession on the basis of sale deed dated February 3rd, 1961. The plea of adverse possession was dismissed. The remaining issues were also decided against the defendants. Consequently, the plaintiff was held entitled to possession of the suit land being its owner.
8. From the pleadings of the parties, judgments of the Courts below and after hearing learned counsel for the parties, following substantial questions of law arise in this appeal:-
(i) whether the defendants proved the execution of sale deed dated February 3rd, 1961 by Roor Singh in their favour ?
(ii) whether the defendants could prove their adverse possession.
9. Learned counsel for the appellants has fairly conceded that the defendants failed to prove the execution and contents of sale-deed dated February 3rd, 1961. In fact, the appellants filed an application to prove the sale-deed by leading secondary evidence but the same was dismissed by the trial Judge vide order dated October 11th, 2001. Against the said order, defendants filed Civil Revision No.181 of 2002 before this Court. The same was dismissed vide order dated February 28th, 2002. Against the order passed by this Court, the defendants filed Special Leave to Appeal No.11768 of 2002 before the Hon’ble Supreme Court but the same was also dismissed by order dated July 11th, 2002. I
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