Thorough examination of adverse possession claims and the need to establish possession as open, hostile, and adverse to the owner, as well as the burden of proof in ownership disputes.

Judgment

Mr. Anil Kshetarpal, J.

The Regular Second Appeal in the States of Punjab and Haryana and Union Territory, Chandigarh is governed by Section 41 of the Punjab Courts Act, 1918 and not by Section 100 of the Code of Civil Procedure, 1908, as held by a five Judge Bench of the Supreme Court in Pankajakshi (Dead) through LRs v. Chandrika and Others (2016) 6 SCC 157.

2. In this regular second appeal, the defendants assail the correctness of the judgment passed by the First Appellate Court, which, in turn, has reversed the judgment and decree passed by the trial Court. In order to comprehend the issue involved in the present case, the relevant facts, in brief, are required to be noticed.

3. On 08.08.1986, the respondents (plaintiffs) filed a suit for grant of decree of declaration that they are the owners in possession of the agricultural land measuring 57 kanals 7 marlas as they have perfected their title by way of adverse possession/with prescription of time. In substance, the plaintiffs claimed that their predecessor, namely Jassa Ram, their father, was in the cultivating adverse possession of the agricultural land, who died in the year 1984. Jassa Ram was in the continuous possession of the land since the year 1960. Thereafter, the plaintiffs had continued to cultivate the land. Neither Jassa Ram nor the plaintiffs cultivated the land as tenants. Some of the defendants entered appearance and contested the suit. It was asserted that the plaintiffs were the tenants and were paying 1/3rd share of the produce in lieu of the lease money.

4. In order to prove their respective case, the plaintiffs produced a copy of jamabandi for the years 1974-75 (Ex.P1), 1979-80 (Ex.P2), 1984-85 (Ex.P3), copies of the khasra girdawaries (Ex.P4 and Ex.P5) and a copy of the order passed by the Additional Director, Consolidation of holdings dated 17.06.1988 (Ex.P6). They also examined four witnesses in the oral evidence.

5. On the other hand, the defendants, in order to prove their case, produced a copy of jamabandi for the year 1984-85 (Ex.D1), a copy of khasra girdawari for the year 1963-64 onwards till 1972-73 as Ex.D2 to Ex.D4, a copy of khasra girdawari for the years 1984-85 and 1985-86 as Ex.D5 and Ex.D6, respectively, a copy of khatauni istemal (Ex.D7), a copy of the proceedings in the consolidation of holdings Ex.D8)a copy of the proceedings a copy of naqsha haqdarwar (Ex.D9) and a copy of khatauni paimaish (Ex.D10). They also examined Bahadur Ram and Prithvi Raj as DW.1 and DW.2 in the oral evidence.

6. The trial Court dismissed the suit after recording the following reasons:-

I) The plaintiffs have failed to produce the jamabandies prior to the year 1974-75 to prove that their possession was open, hostile and without payment of rent.

II) Further, from the perusal of the documents (Ex.D1 to Ex.D10), it is evident that Jassa Ram was cultivating the land as a tenant on the payment of 1/3rd share of the produce.

7. The First Appellate Court reversed the judgment of the trial Court on the ground that Ex.D6 is an order passed by the Additional Director Consolidation on 17.06.1988 while dismissing the application filed by the defendants to correct the error in column No.10 of the jamabandi. The aforesaid judgment has become final and the defendants have failed to prove that Jassa Ram was cultivating the land as a tenant.

8. Heard the learned counsel representing the parties at length and with their able assistance, perused the paper-book along with the requisitioned record and the written submissions made on behalf of the learned counsel representing the parties.

9. This Court in Mukhtiar Singh and Others v. Dara Singh and Others (Regular Second Appeal No. 138 of 2010, decided on 28.04.2022, after examining the case law on the subject, held as under:-

“Before granting declaration that the person has become owner by way of adverse possession, the court is required to examine the case thoroughly. Merely a long continuous possession is not sufficie