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HIMACHAL PRADESH HIGH COURT
Rakesh Kainthla, J.
Mohinder Singh – Appellant
versus
Gurbax Singh (since
deceased) through his LRs – Respondents
RSA No.300 of 2006
Decided on 11.9.2023
(A) Recovery of possession – Principle of acquiescence –Applicability – Principle of acquiescence can be applied in case of mandatory injunction – Same will not apply in case of recovery of possession – First Appellate Court erred in dismissing appeal on ground that plaintiff was barred by principle of acquiescence from filing suit. [Paras 19 and 20]
(B) Recovery of possession – Non-impleadment of Necessary party – Suit for possession can be filed by co-sharer against trespasser without impleading other co-sharers. [Para 21]
(C) Recovery of possession – Limitation – Suit based on title where plea of adverse possession had not been raised could not be barred by limitation on ground that it was filed after more than 12 years from date of dispossession – Defendant has not taken any plea of adverse possession – Suit was not barred by limitation – First Appellate Court erred in ignoring pleadings of parties and admission made by defendant regarding title of plaintiff – Defendant had failed to prove any right in himself to retain possession and such suit could not have been dismissed without plea of adverse. [Paras 23, 24, 26 and 27]
Result: Appeal allowed.
JUDGMENT
Rakesh Kainthla, J.—The present appeal is directed against the judgment & decree passed by the learned District Judge, Una vide which the appeal filed by the respondents (legal representatives of the original defendant before the learned Trial Court) was allowed and the judgment and decree passed by learned Civil Judge (Junior Division), Court No. 1, Amb, District Una, H.P. were set aside.
2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court for seeking the possession by removal of supper structure/Malwa over the land comprised in Khewat No. 99 min, Khatouni No. 222 min, Khasra No. 2282/1 measuring 0-00-92 Hectare situated in Up-Mohal Kaloh, Mouja Kaloh, Tehsil Amb, District Una, H.P as entered in the copy of Jamabandi for the year 1995-1996. (hereinafter referred to as the suit land). It was asserted that the plaintiff was a co-sharer in possession of the suit land. The defendant took forcible possession of the suit land in April 2000 without any right, title or interest. The plaintiff requested the defendant to deliver the possession, but in vain. Hence, the suit was filed to seek the relief mentioned above.
3. The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability & cause of action, the plaintiff having not come to the Court with clean hands and the suit being bad for non-joinder of necessary parties. The contents of the plaint were denied on merits. It was asserted that the suit land is owned and possessed by the plaintiff along with other co-sharers, but the same is in exclusive hissedari possession of the father of the plaintiff-Jaspal Singh. The plaintiff, his brother and mother are in exclusive hissedari possession of the suit land after the death of Jaspal Singh. The suit land adjoins the land of the defendant. The defendant raised his residential Abadi over Khasra No. 2282 in the presence of the plaintiff, his father and other cosharers. He is in peaceful possession of the Abadi constructed over part of the suit land bearing Khasra No. 2282. The old Khasra Number of adjoining land of the defendants were 3413, 3414 and 3416. The plaintiff concealed these facts from the Court. Hence, it was prayed that the suit be dismissed.
4. No replication was filed.
5. The following issues were framed by the learned Trial Court on 06.01.2003:—
1. Whether the suit land was owned and possessed by the plaintiff along with other cosharers as alleged? OPP
2. Whether defendant has dispossessed plaintiff and other co-sharers from the suit land in an illegal manner in the month of April, 2000? OPP
3. Whether plaintiff is entitled for decree of possession? OPP
4. Whether suit is not maintainable in present form? OPD
5. Whether plaintiff has no cause of action to file suit? OPD
6. Whether suit is bad for non-joinder of necessary parties? OPD
7. Relief.
6. The parties were called upon to produce the evidence and the plaintiff examined Satya Devi- his Power of Attorney (PW-1) and Roshan Lal (PW-2). The defendant examined himself (DW-1).
7. Learned Trial Court held that the plaintiff is the co-owner of the suit land. The version of the plaintiff was made probable by the report of demarcation and the oral evidence. The defendant had no right to retain the possession, hence, the learned Trial Court answered issues no. 1 to 3 in the affirmative, issues no. 4 to 6 in the negative and decreed the suit.
8. Being aggrieved from the judgment and decree passed by the learned Trial Court, the legal representative of the original defendant filed an appeal before the learned District Judge, Una. Learned First Appellate Court held that the Power of Attorney of the plaintiff failed to identify the boundaries of the suit land. Roshan Lal (PW-2) admitted that he is in possession of the suit land. Hence, the plea that the defendant is in possession was not proved. It was not specified when the constr
(1) Recovery of possession – Limitation – Suit based on title where plea of adverse possession had not been raised could not be barred by limitation on ground that it was filed after more than 12 yea....
A claim of adverse possession cannot be sustained if possession stems from an agreement to sell, which legally acknowledges the owner's title.
It is settled that necessary ingredients of adverse possession are required to be specifically pleaded and necessary factual foundation in support thereof is to be made out. Equally important is nece....
The main legal point established is the stringent requirements for establishing adverse possession, including the need for hostile possession, open and continuous possession, and the burden of proof ....
In property disputes, once a plaintiff proves title, the burden shifts to the defendant to establish adverse possession; failure to do so results in the plaintiff's claim being upheld.
The judgment emphasizes the legal principles of adverse possession, including the requirements of open, clear, continuous, and hostile possession, burden of proof, and the need for a substantial ques....
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