A party pleading permissive possession (tenancy) over a property is legally precluded from asserting adverse possession simultaneously, as a tenant owes their entry and continued presence to the owner's permission, thereby negating the hostile intent necessary to establish an adverse title.

Rakesh Kainthla, Judge

1. The present appeal is directed against the judgment and decree dated 14.8.2007, passed by the learned Additional District Judge, Ghumarwin, District Bilaspur, H.P., (learned Appellate Court), vide which the judgment and decree dated 21.8.2004, passed by the learned Civil Judge, Senior Division Bilaspur, District Bilaspur, H.P., Camp at Ghumarwin, (learned Trial Court) were upheld. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned trial Court for convenience).

2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court against the defendant for seeking a declaration that entries in Jamabandi for the 1990-91 regarding the column of possession in the suit land mentioned in the head note are wrong and illegal. A consequential relief of permanent prohibitory injunction for restraining the defendants from cutting the grass or changing the nature of the suit land, and an alternative relief for possession were also sought. It was asserted that the defendants are shown to be in possession of the suit land in the copy of the Jamabandi for the year 1990-91. The suit land is grassland. The husband of the plaintiff died about 40 years before filing the suit. The plaintiff used to take the assistance of various persons to cultivate the land. The defendant’s father also used to help the plaintiff, being a near relative. He took advantage of his position and got his possession recorded on the suit land. The defendants threatened the plaintiff to cut and remove the standing trees on the suit land. The plaintiff requested the defendants not to do so, but in vain. Hence, the suit was filed to seek the relief mentioned above.

3. The suit was opposed by the defendants by filing a written statement taking preliminary objections regarding lack of maintainability, jurisdiction and locus standi, plaintiff being estopped to file the present suit by her act, conduct, commission and omissions, the suit being barred by limitation, the suit having not been properly valued for Court fees and jurisdiction, and the suit being bad for non-joinder and mis-joinder of parties. The contents of the plaint were denied on the merits. It was asserted that the defendant’s father was a non-occupancy tenant, paying 1/4th of the produce as the rent. The defendant used to pay land revenue to the Numberdar and 1/4th rent as and when demanded by the plaintiff. The defendants remained in possession of the suit land continuously, openly, peacefully, and adversely to the knowledge of the plaintiff, and they became the owners by way of adverse possession. It was admitted that the suit land was recorded in possession of the defendants. It was asserted that the defendants are owners-in-possession of the suit land and the plaintiff has no right over the suit land, hence it was prayed that the suit be dismissed.

4. A replication denying the contents of the written statement and affirming those of the plaint was filed.

5. Learned Trial Court framed the following issues on 16.3.1999 and learned Appellate Court also framed an additional issue on 16.6.2003: -

1. Whether the plaintiff is entitled to the relief of a permanent prohibitory injunction? OPP.

2. Whether the entries in the revenue record are wrong and illegal? OPP.

3. Whether the plaintiff is estopped to file the suit by her acts and conduct? OPD.

4. Whether the suit is not within time? OPD.

5. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? OPD.

6. Whether the suit is ba