Jawala Dass and ors. Vs. Chhotu Ram and ors. - Court Judgment

Excerpt:
- ajay tewari, j.1. it may be noticed that on 24.4.2008 none had appeared on behalf of the respondents and the following order was passed:the name of mr. s.v. rathee, advocate representing the respondents has not been shown in the cause list. list again on 23.7.2008.the name of mr. s.(sic) rathee, advocate be shown in the cause list.2. as has been verified today the name of learned counsel has now appeal d in the list. the matter is of 1982. this case has been on the board for the last many days. in the circumstances i am constrained to take up the matter for decision even in the absence of learned counsel for the respondents.3. this appeal has been filed against the concurrent judgments of the courts below dismissing the suit of the appellant for possession. it is not in dispute that the appellants had filed five suits with respect to the same land. it is also not disputed that he appellants are co-owners in the land in dispute. it is also not disputed that all the suits were consolidated and common evidence was led in all of them. it is also not disputed that four of the said suits were decreed by the trial court and the said judgments and decrees have become final. the fifth suit was dismissed as mentioned above by both the courts.4. the following questions have been proposed:(a) whether in the facts and circumstances of the instant case the contesting respondents having failed to identify the property on which they are claiming adverse possession, the suit based on title filed by the plaintiff/appellant could be dismissed?(b) whether in the facts and circumstances of the instant case mere long possession, without establishing hostile title to the knowledge of the owner, the suit for possession filed by the owner could be dismissed?(c) whether in the facts and circumstances of the instant case, a casual user can be made the basis for claiming adverse possession?5. the primary contention of learned counsel for the appellant is that to protect title by adverse possession it is sine qua non that the person claiming adverse possession should have denied the title of the owner. he has taken me through the evidence of respondent no. 3 (who happens to be the principal of the respondent no. 1-school). the said principal in his statement has categorically stated that he did not know as to who was the owner of the land in dispute. in t. anjanappa and ors. v. somalingappa and anr. (2006)7 s.c.c. 570 the hon'ble supreme court held as follows:17. an occupation of realty is inconsistent with the right of the true owner. where a person possesses property in a manner which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner (that is with the intention of excluding all persons from it, including the rightful owner), he is in adverse possession of it. thus, if a is in possession of a field of b's, he is in adverse possession of it unless there is something to show that his possession is consistent with a recognition of b's title. adverse possession is of two kinds, according as it was adverse from the beginning, or has become so subsequently. thus, if a mere trespasser takes possession of a's property, and retains it against him, his possession is adverse ab initio. but if a grants a lease of land to b, or b obtains possession of the land as a's bailiff, or guardian, or trustee, his possession can only become adverse by some change in his position. adverse possession not only entitled the adverse possessor, like every other possessor, to be protected in his possession against all who cannot show a better title, but also, if the adverse possessor remains in possession for a certain period of time produces the effect either of barring the right of the true owner, and thus converting the possessor into the owner, or of depriving the true owner of his right of action to recover his property and this although the true owner is ignorant of the adverse possessor being in occupation.18. adverse possession is that form of possession or occupancy of land which is inconsistent with the title of any person to whom the land rightfully belongs and tends to extinguish that person's title, which provides that no person shall make an entry or distress, or bring an action to recover any land or rent, but within twelve years next after the time when the right first accrued, and does away with the doctrine of adverse possession, except in the cases provided for by section 15. possession is not held to be adverse if it can be referred to a lawful title.19. according to pollock, 'in common speech a man is said to be in possession of anything of which he has the apparent control or from the use of which he has the apparent powers of excluding others.20. it is the basic principle of law of adverse possession that (a) it is the temporary and abnormal separation of the property from the title of it when a man holds property innocently against all the world but wrongfully against the true owner ;(b) it is possession inconsistent with the title of the true owner.21. in halsbury's 1953 edition, volume-i it has been stated as follows:at the determination of the statutory period limited to any person for making an entry or bringing an action, the right or title of such person to the land, rent or advowson, for the recovery of which such entry or action might have been made or brought within such period is extinguished and such title cannot afterwards be reviewed either by re-entry or by subsequent acknowledgment. the operation of the statute is merely negative, it extinguished the right and title of the dispossessed owner and leaves the occupant with a title gained by the fact of possession and resting on the infirmity of the right of the others to eject him.22. it is well recognized proposition in law that mere possession however long does not necessarily means that it is adverse to the true owner. adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. the classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. the possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action.6. he thus argues that the statement of respondent no. 3 that he does not know the real owner of the land completely erodes any element of adverseness in the possession since there is no person against whom the respondent no. 3 is asserting any hostile title. learned counsel also emphasized that part of the statement of the said respondent wherein he states that he does not even know the khasra numbers of the site in dispute.in the circumstances there can be no escape from the finding that the plea of adverse possession as set up by the respondents was not proved to the hilt. in the circumstances i decide the question no. (b) in favour of the appellants. questions no. (a) and (c) are both questions of fact. in the circumstances this appeal is allowed. judgments and decrees of the courts are set aside and consequently the suit of the appellants is decreed.since the main case has been decided, all the pending civil misc. applications are disposed of.