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Kidar Nath And Others v. Ram Chand (Deed.) And Others
Structured Summary of the Provided Opinion
Factual and Procedural Background
The appellants (plaintiffs in the suit) alleged that their ancestor, Ram Rattan, was the owner in possession of the disputed property and that the respondent (defendant) took the land on rent by a rent note and thereafter became a tenant. Ram Rattan died in 1953 and the plaintiffs claimed inheritance of the property. The plaintiffs alleged that the defendant failed to pay rent after the ancestor's death and sought ejection; alternatively they sought possession if the defendant was in illegal possession.
The defendant contested the suit, denying that Ram Rattan was owner or in possession, denying he was a tenant of Ram Rattan or of the plaintiffs, and asserted that he had been in open possession for more than 12 years and thus had acquired title by adverse possession. The trial court framed five issues: (1) ownership of the site by plaintiffs; (2) existence of landlord-tenant relationship; (3) if issue 2 not proved but issue 1 proved, whether defendant acquired the site by adverse possession; (4) whether the suit is within limitation; and (5) relief.
The trial court found against the plaintiffs on issues 1 and 2, for the defendant on issue 3, and against the plaintiffs on issue 4, and dismissed the suit. The lower Appellate Court reversed the trial court on issue 1 (holding plaintiffs were owners) but maintained the trial court's findings on issues 2, 3 and 4 and dismissed the suit. This appeal followed.
Legal Issues Presented
- Whether the plaintiffs are the owners of the site in suit.
- Whether a relationship of landlord and tenant exists between the parties.
- If issue No. 2 is not proved and issue No. 1 is proved, whether the defendant has become the owner of the site in suit by adverse possession, and if so, to what effect.
- Whether the suit is within limitation.
- What relief, if any, should be granted.
Arguments of the Parties
Appellants' Arguments (learned counsel Mr. M. S. Pannu)
- The approach of both lower courts on issues Nos. 3 and 4 (adverse possession and limitation) was erroneous and should be set aside.
- The finding on issue No. 2 (landlord-tenant relationship) is essentially a factual finding and not challenged before this Court.
- The onus to prove adverse possession heavily lies on the defendant; the defendant must show possession hostile to the real owners.
- Evidence (Pakhar Singh, P.W.3) proved Exhibit P-7 (a writing in the register of the petition writer) showing the land was taken on rent from Ram Rattan on 13-6-1944 and that Pakhar Singh remained in possession as a tenant for four years — i.e., until about 1948 — which defeats a continuous adverse possession period of 12 years by the time the suit was filed on 20-4-1959.
- The criminal judgment (Exhibit D-11) and pleas in that criminal case are not relevant; even if relevant its occurrence date (5-6-1948) does not establish a 12-year adverse period prior to the filing of the suit.
- Mere construction of Khurlis (small structures) does not amount to adverse possession; possession must be open, hostile and to the knowledge of the true owners. Authorities were relied upon for this proposition.
Respondent's Arguments (learned counsel Mr. G. R. Majithia)
- It was contended that on the question of limitation (issue No. 4) the plaintiffs should have proved the suit was within limitation.
- The respondent relied on evidence from defence witnesses (Ram Chand, Pyara Singh D.W.1, Dharam Singh D.W.2, Jagat Singh D.W.3) to contend that the defendant had been in possession of the land since their childhood, had constructed a room and walls, and that such possession had continued for more than 12 years and was hostile to the real owners.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mst. Sitabai v. Jumo, (1935) 157 Ind Cas 283 (Sind) | Possession and adverse possession are distinct; mere user is insufficient — there must be a definite quality in possession and an unequivocal act to put the owner on guard; adverse possession cannot exist if the occupier did not know he was occupying another's land. | The Court relied on this principle to support the conclusion that the defendant's acts (mere use or recent constructions) did not show the necessary unequivocal, hostile possession to displace the true owner's title. |
| Amritsarya Ram v. Dewan Chand, AIR 1929 Lah 625 | Adverse possession must be marked by clear and unequivocal acts of ownership and be definite as to duration, continuity and extent; possession of part does not raise presumption as to whole; presumption extends only to areas actually in possession. | The Court applied this rule to hold that the defendant had not demonstrated clear acts of ownership over the whole disputed land and any isolated acts (e.g., limited construction) could not be presumed to extend to entire site as adverse possession. |
| Shah Niwaz v. Ghulam Shah, AIR 1938 Lah 324 | A temporary chhappar and an ordinary enclosure on waste land do not amount to adverse possession. | The Court treated this as directly applicable: the constructions (Khurlis, walls, Kotha) were recent and temporary in nature according to defence witnesses, and therefore did not constitute adverse possession. |
| State Bank of Travancore v. Arvindan Kunju Panicker, (1972) 4 SCC 274 : AIR 1971 SC 996 | Adverse possession cannot be held unless the claimant proves he asserted an adverse title to the knowledge of the true owners for a period of twelve years or more. | The Court referenced this Supreme Court authority to reinforce that the defendant bore the onus of proving hostile possession known to the true owners for the requisite period, which the Court found unmet on the evidence. |
Court's Reasoning and Analysis
The Court proceeded by analysing (a) who bore the onus of proof on adverse possession, (b) the nature and dates of the evidence said to establish adverse possession, and (c) whether those facts satisfied the legal standard for adverse possession and limitation.
- Onus of Proof: The Court held that the onus of proving adverse possession rests on the party who asserts it (the defendant). It rejected the respondent's contention that the plaintiffs had to prove the suit was within limitation.
- Evidence as to Tenancy and Possession: The Court examined the evidence of P.W.3 (Pakhar Singh) who proved Exhibit P-7, a writing dated 13-6-1944 by which he took the land on rent from Ram Rattan, and that he continued in possession as a tenant for four years. From that, it inferred tenancy continuing to about 1948, which undermined a claim that the defendant had been in hostile possession for 12 years before the filing of the suit on 20-4-1959.
- Construction and Temporal Nature of Acts: The Court evaluated the defence witnesses' evidence about constructions (Khurlis, walls, Kotha). It found from Ram Chand (D.W.5) and other D.Ws that these structures were recent — raised about three to four years before their testimony, and in particular about 3/4 years ago — and therefore not of sufficient antiquity or unequivocal character to constitute adverse possession.
- Application of Precedent: The Court relied on cited authorities to articulate the legal standard: adverse possession requires clear, hostile acts known to the true owner and must be definite in duration, continuity and extent; mere temporary structures or limited user do not suffice. Using this legal standard, the Court found the defendant's acts did not reach the threshold of adverse possession.
- Limitation Calculation: Even if the Court accepted the date in the criminal occurrence (Exhibit D-11) — 5-6-1948 — as the commencement of adverse possession, it held that the suit filed on 20-4-1959 was still within twelve years; thus, the defendant had not established the requisite uninterrupted twelve-year period prior to suit.
- Conclusions on Issues: The Court affirmed the lower Appellate Court's finding that plaintiffs were the owners (issue No. 1), reversed the lower Appellate Court's findings on issues Nos. 3 and 4 (adverse possession and limitation) because the defendant failed to prove adverse possession, and dismissed the respondent's cross-objections.
Holding and Implications
Holding: The appeal is allowed. The Court reversed the lower Appellate Court's findings on issue Nos. 3 and 4 (adverse possession and limitation) and affirmed the finding on issue No. 1 that the plaintiffs are the owners of the site in dispute. Consequently, the plaintiffs' suit for possession is decreed with costs throughout. Civil Misc. Application No. 1370.C of 1961 (cross-objections) filed by the respondent is dismissed.
Implications:
- Direct effect on the parties: The defendant's claim of title by adverse possession was rejected for failure to prove hostile possession known to the true owners for the requisite period; the plaintiffs succeed and obtain a decree for possession and costs.
- No broader precedent was announced beyond application of established principles: the opinion applies existing authorities on adverse possession and limitation to the facts and does not purport to lay down a new legal principle.
This summary is confined to the facts, findings, authorities, and reasoning expressly contained in the provided opinion.
1. The appellants before me are the plaintiffs in the suit. They brought a suit alleging that Ram Rattan, ancestor of the plaintiffs, was the owner in possession of the property in dispute. A rent note was executed by the defendant-respondent and that the defendant was the tenant of the plaintiffs as Ram Rattan having died in the year 1953, the plaintiffs inherited his property. It was alleged that the defendant, who is the tenant, having failed to pay the rent after the death of Ram Rattan, was liable to be ejected. In the alternative it was prayed that if the defendant was not found to be a tenant and found to be in illegal possession of the suit land, the suit for possession be decreed. The suit was contested by the defendant on the ground that Ram Rattan was neither the owner of the property in dispute nor was in possession thereof. He further pleaded that he never took the said property on rent from Ram Rattan and also that the plaintiffs were not the owners of the property in dispute. It was the open place, to begin with, and the defendant was not the tenant under the plaintiffs. In fact he was in possession of the said property for more than 12 years and, therefore, his possession had ripened into adverse possession. Therefore, it was prayed that the suit may be dismissed.
2. The learned trial Judge framed the following five issues:—
1. Whether the plaintiffs are the owners of the site in suit?
2. Whether relationship of landlord and tenant exists between the parties?
3. If issue No. 2 is not proved and issue No. 1 is proved whether the defendant has become the owner of the site in suit by adverse possession? If so, to what effect?
4. Whether the suit is within limitation?
5. Relief?
3. The learned trial Judge decided issue Nos. 1 and 2 against the plaintiffs, issue No. 3 in favour of the defendant and issue No. 4 against the plaintiffs, and, therefore, dismissed the suit. The learned lower Appellate Court reversed the finding of the learned trial Court on issue No. 1 and came to the conclusion that the plaintiffs are the owners of the site in dispute but maintained the finding of the learned trial Court on issue Nos. 2, 3 and 4 and, therefore, dismissed the suit.
4. I have heard Mr. M.S Pannu, the learned counsel for the appellants, and Mr. G.R Majithia, the learned counsel for the respondent, at considerable length and have also gone through the records. The contention of the learned counsel for the appellants is quite forceful when he says that the approach of both the Courts below on issues Nos. 3 and 4 is erroneous and is liable to be set aside. The learned counsel frankly conceded that the finding on issue No. 2 is more or less in the nature of the findings of facts and it is not open to this Court to go into the said finding of fact. He, therefore, contended that he would not address arguments on issue No. 2 as the finding of fact arrived at by both the Courts below is binding on this Court. But he contended that under issue No. 3, onus heavily lies on the defendant to prove the same as he claims adverse possession on the land in dispute. He contends that the case of the appellants throughout had been that they were the owners of the property in dispute as they inherited the same. They nowhere claimed that they were in possession of the property by way of adverse possession. The learned counsel contends that the defendant has to show his possession hostile towards the real owners. The learned counsel further pointed out that both the Courts below have misread the evidence of Pakhar Singh (P.W 3). This witness categorically proved the copy of the writing of the register of the petition writer Exhibit P-7 by which he took the land in dispute on rent from the plaintiffs' ancestor Shri Ram Rattan. He further pointed out from the statement of Pakhar Singh that he continued to be in possession as a tenant of the land for four years. The learned counsel contends that the writing Exhibit P-7 was written on 13-6-1944 and if Pakhar Singh remained in possession for four years, that would come to year 1948 and the plaintiffs' suit having been filed on 20-4-1959, the adverse possession of the respondent would not be for a period of 12 years. The learned counsel further contends that the judgment Exhibit P-D given by the Criminal Court and the plea taken by the accused persons in that case is not relevant for the purposes of deciding this issue and even if it is relevant, the occurrence in the criminal case took place on 5-6-1948 and even if that date be taken to be the date of adverse possession of the respondent, even then the suit is within 12 years.
5. The learned counsel further contends that merely by constructing the Khurlis on the land would not amount to adverse possession. It should be an open hostile act to the knowledge of the real owners that the possession can be reckoned into adverse possession. The learned counsel relies on the authorities reported in Mst. Sitabai v. Jumo, (1935) 157 Ind Cas 283 (Sind); Amritsarya Ram v. Dewan Chand, AIR 1929 Lah 625, and Shah Niwaz v. Ghulam Shah, AIR 1938 Lah 324.
6. In Mst. Sitabai's case, (1935) 157 Ind Cas 283 (Sind) (supra), it was held that the possession and adverse possession do not mean the same thing. A mere user of the property cannot be taken as a definite assertion of proprietary right there must be some definite quality in the possession before it can be called adverse, and some act of an unequivocal character to put the owner on guard. There cannot be adverse possession if the defendant himself did not know that he was occupying somebody else's land.
7. In Amritsarya's case, AIR 1929 Lah 625 (supra), it was held that it is the settled law that a wrongdoer usually gains possession only of that portion of the land which is in his actual control, and the possession of the part of the property does not raise a presumption of the whole. It is the very essence of adverse possession that it must be marked by clear and unequivocal acts of ownership and must be sufficiently definite as regards duration, continuity and extent. The presumption of adverse possession extends only to the areas which are in the actual possession of the trespasser.
8. In Shah Niwaz's case, AIR 1938 Lah 324 (supra), it was held that a mere construction of a temporary Chhappar surrounded by an ordinary enclosure of bushes on a waste land does not amount to adverse possession.
9. The learned counsel further relies on an authority reported in State Bank of Travancore v. Arvindan Kunju Panicker, (1972) 4 SCC 274 : AIR 1971 SC 996, for the proposition that adverse possession cannot be held until and unless the person claiming adverse possession proves that he asserted an adverse title to the property to the knowledge of the true owners for a period of twelve years or more.
10. Mr. Majithia, the learned counsel for the respondent, on the other hand, contends that under issue No. 4, it was for the plaintiffs to prove that the suit is within limitation. I am not inclined to agree with this contention of the learned counsel for the defendant because it was the respondent who was claiming adverse possession of the land in dispute. The onus of proving issue No. 3 is on the respondent and it was he who had to show that as to on what date the adverse possession started. The approach of both the Courts below on this issue is wholly wrong in law and should be set aside. Mr. Majithia contends that taking into consideration the evidence of Ram Chand defendant, Pyara Singh (D.W 1), Dharam Singh (D.W 2) and Jagat Singh (D.W 3), it may be held by this Court that the possession of the defendant on the land in dispute is since more than 12 years. He pointed out from the evidence of these witnesses wherein they stated that the defendant was in possession of the land since their childhood. These witnesses also deposed that the defendant had constructed a room and also walls over the land in dispute. The learned counsel, therefore, contends that the possession of the defendant over the land in dispute was hostile towards the real owners. I am unable to accept this contention of the learned counsel for the defendant as nowhere any of these witnesses stated that the possession of the defendant was hostile towards the real owners. On the other hand, the statement of Ram Chand defendant is that he was in possession as he inherited this property from his ancestors. It is nowhere present in his statement that the possession of the defendant was hostile to the knowledge of the appellants.
11. As regards the construction of Khurlis, walls and Kotha, it is clear from the evidence of Ram Chand (D.W 5) that the same have been recently constructed about ¾ years ago. Similarly, it is clear from the evidence of Dharam Singh (D.W 2) and Jagat Singh (D.W 3) that the construction on the site in dispute is a recent one and is not as old as 12 years. Therefore, the authority relied upon by the learned counsel for the appellants reported in Shah Niwaz's case, AIR 1938 Lah 324 (supra), is a direct authority on the point. Merely a Khurli was constructed on a part of the site in dispute would not entitle the defendant to claim adverse possession on the land in dispute. The land in dispute is open Taur and the construction according to the evidence of the D.Ws themselves was only raised within 3 or 4 years' time when the witnesses appeared before the Court.
12. The learned counsel for the respondent has not argued anything against the finding of the learned lower Appellate Court on issue No. 1 wherein the learned lower Appellate Court found that the plaintiffs were the owners of the site in dispute. I, therefore, affirm the findings of the learned lower Appellate Court on issue No. 1 and dismiss Civil Misc. Application No. 1370.C of 1961, that is, Cross-Objections, filed by the respondent.
13. Since I have affirmed the findings of the learned lower Appellate Court on issue No. 1 holding that the plaintiffs are the owners of the site in suit, it is for the defendant to show as to on what date he came in adverse possession of the land in dispute and is in hostile possession towards the real owners.
14. Even if the adverse possession of the defendant is taken from the date of the occurrence in the criminal case, the judgment of which is Exhibit D-11, that is, 5-6-1948, even then the suit was filed within limitation before the expiry of 12 years. In this view of the matter, the finding of the learned lower Appellate Court on issue Nos. 3 and 4 has to be reversed as the defendant has failed to prove his adverse possession over the land in dispute. The net result is that the appeal is accepted and the finding of the learned lower Appellate Court on issues Nos. 3 and 4 is reversed. As a consequence of which the suit of the plaintiffs for possession is decreed with costs throughout.
15. Appeal allowed.
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