High Court of Punjab and HaryanaRSA/1919/1990allowed

Jaffar v. Rehmat And Others

2025-08-20Mr. Justice Virinder Aggarwal9 pages

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& $ &$$& %# >+ '%#& $ '# &! $%%2& & 2 $#+ "1. Whether the plaintiff is owner in possession of the suit land, as alleged? OPP

2. Whether the suit is time barred, as alleged? OPD

3. Whether the plaintiff is estopped from filing the present suit? OPD

4. Whether the suit is not maintainable in the present form? OPD

5. Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction? OPD

6. Relief."

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) 2& ## "11. Here, it may be mentioned that defendant Nos. 2 to 4 sold 5/6 share of the suit land to defendant No. 1 vide sale deed Ex. D.1 dated 27.9.84. However, the question to be determined is whether the plaintiff has become owner of the suit land by adverse possession or not. In this behalf, learned counsel for the appellant contended that the present suit was filed on 9.10.85 whereas the plaintiff is in possession of the suit land since 1960-61 and thus, his possession was for more than 25 years before the filing of the suit and his possession was open, continuous and hostile and so, the plaintiff has become owner of the suit land by adverse possession. There is considerable merit in the submission.

As already mentioned, the plaintiff's possession has been consistently recorded in the revenue record as like that of owners on account of mortgage or rejected mortgage. In fact, mutation of mortage was rejected on 1.12.61 as per copy of mutation Ex. P14 and so, the plaintiff's possession was on account of rejected mortgage and the subsequent entries that the possession was on account of mortgage or oral mortgage instead of rejected mortgage were by way of inadvertence only and in fact, plaintiff's possession continued on account of rejected mortgage. Even otherwise, it is the case of both the sides that no mortgage was ever created in favour of the plaintiff.

mortgagees are wrong. Defendant No. 1 in his written statement also pleaded that no mortgage was ever created in favour of the plaintiff. So, the plaintiff's possession was not as mortgagee. The revenue entries also show that plaintiff did not pay any rent or Lagan for the suit land to defendants recorded as owners or to anybody else. It is also the plaintiff's case as well as oral evidence that he has never paid any rent to anybody. It is also not the defendant's case that the plaintiff ever paid any rent to them or to anybody else. Thus, the plaintiff's possession was neither as mortgagee nor as tenant. He has alleged that his possession was adverse possession. The defendants have not alleged any other capacity in which the plaintiff has been in possession of the suit land.

On the other hand, the defendants have even denied the factum of plaintiff's possession. However, plaintiff's possession over the suit land stands fully established as already discussed. So, the plaintiff's possession was only adverse and not in any other capacity because neither the plaintiff nor the defendants have alleged any other capacity because neither the plaintiff nor the defendants have alleged any other capacity of the plaintiff's possession. Even otherwise, the plaintiff's possession was on account of rejected mortgage as possession was admittedly not as mortgagee. He also did not pay any rent or lagan etc. to anybody. So, obviously his possession was adverse and it continued for much longer period than the requisite period of 12 years. So, his possession ripened into title."

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(" ! 2&'##6& #. # "17. A mere possession or permissive possession does not demonstrate spectrum of adverse possession. For claiming adverse possession, the defendants must prove that their possession is "nec

6 vi, nec clam, nec precario", i.e. peaceful, open and continuous. The possession should be actual, open, notorious, exclusive and continuous for the required time as provided in law. The necessary ingredients of adverse possession as enumerated in 2004(2) RCR (Civil) 702 titled as Karnataka Board Wakf v. Government of India are that the adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. A party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", i.e. peaceful, open and continuous and it should be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the original owner and is actual, visible, exclusive, hostile and continued over the statutory period."

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7%# ' &$ ) $ ;B.%'<3 ## "... The plea of adverse possession as against Mansaram was not pleaded. In this case, except repeating the title already set up which was negatived in the earlier suit, namely, that they had constructed the house jointly with Mansaram, there is no specific plea of disclaiming the title of the respondents from a particular date, the hostile assertion thereof and then of setting up adverse possession from a particular date to the knowledge of the respondents and of their acquiescence. Under these circumstances, unless the title is disclaimed and adverse possession with hostile title to that of the Mansaram and subsequently as against the appellant is pleaded and proved, the plea of adverse possession cannot be held proved.

In this case, such a plea was not averred nor evidence has been adduced. The doctrine of adverse possession would arise only when the party has set up his own adverse title disclaiming the title of the plaintiff and established that he remained exclusively in possession to the knowledge of the appellant's title hostile to their title and that the appellant had acquiesced to the same...."

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