(O&M)Ishwar v. Sita Ram


   


 




  


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 "The facts, briefly stated, which have culminated in the filing of the present appeal are as follows. Ishwar, son of Parkash, the real nephew of Sita Ram defendant respondent herein instituted a suit for possession, asserting his ownership over the land comprised in Khewat No. 138 min, Khata No.


183, Rectangle and Killa No. 7/19, measuring 8 kanals 0 marlas, situated within the revenue estate of village Abbaspur Garhi Bala, Tehsil and District Sonepat. Sita Ram is the real elder brother of the plaintiff's father.





 

  

                                  





     

  



 

  





   

   



     

        

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 "The defendant, Sita Ram, contested the suit and asserted that the plaintiff has no cause of action, at least insofar as Killa No. 7/19 is concerned. He further pleaded that the plaintiff lacks locus standi to institute the suit, as the defendant appellant has already perfected his title over the suit land by way of adverse possession. According to him, his hostile possession commenced on 16.06.1963 and has, since then, remained open, continuous, uninterrupted, and to the full


knowledge of the plaintiff and his father, being completely hostile to their rights.

It was additionally averred that Parkash, the plaintiff's father, had filed an application on 24.02.1964 seeking correction of the Khasra Girdawari entries; however, the said application was dismissed on 08.03.1965. An appeal preferred before the Collector also met the same fate and was dismissed on 28.12.1965. The defendant appellant thus contended that the question of delivering possession does not arise, as the Khasra Girdawari entries stand in his favour, and by virtue of his long, continuous, hostile, and adverse possession, he has become the owner of the suit land."

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Khasra Girdawari
 


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Whether the plaintiff is owner of the suit land as alleged ? O.P.P. 2.

Whether the plaintiff has no cause of action as for as killa Ne.7/19 as alleged ? O.P.P.

3.

Whether the defendant has become owner of the suit land by adverse possession ? OPP.

4.

Whether the plaintiff has no locus standi to file the present suit ? O.PD.

5.

Whether the defendant is entitled to special costs as alleged ? OPD. 6.

Relief.

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 7In light of the foregoing findings, the plaintiff has successfully established his case. Accordingly, the suit is decreed in favour of the plaintiff, declaring him entitled to the possession of the suit land as detailed in paragraph No. 1 of the plaint. The parties are, however, left to bear their own costs. Let a decree sheet be drawn up accordingly, and the case file be consigned to the record room upon due compliance.8 =$ ""

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 "In view of the above discussion, I am of the considered opinion that since Kharif 1963, the possession of Sita Ram has been open, hostile, and continuous to the knowledge of Parkash as well as his son Ishwar; indeed, Parkash himself admitted the forcible and hostile nature of such possession. As the suit was instituted on 30.07.1987, by which time Sita Ram had successfully perfected his title by way of adverse possession, the learned trial Court ought to have decided all the issues against the plaintiff, but failed to do so. The findings recorded

 
by the trial Court are contrary to the facts and the settled principles of law and are, therefore, set aside. Consequently, the appeal succeeds and is hereby allowed. The suit filed by the plaintiff, Ishwar, is dismissed. However, the parties are left to bear their own costs. Let a decree sheet be drawn accordingly, and the file be consigned to the record room after due compliance."

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Dwhether the impugned judgment and decree suffer from any legal infirmity or error justifying interference by this CourtE
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"The learned counsel for the appellant did not tender into evidence the Order dated 8.3.1965 passed by the Assistant Collector on the application of Farkash father of Ishwar plaintiff now respondent. The undersigned. demanded copy of the same for facility of the decision of this case which was supplied. The operative portion of this order of Assistant Collector (Naib Tahsildar) reads that the respondent Sita Ram was admitted by Farkash in possession since Kharif 1963. This was also admitted by applicant Parkash that possession of respondent Sita Ram On this it was remarked by Naib is forcible and illegal." Tahsildar that "I am afraid, I cannot go into that question as the possession of respondent Sita Ram is even now i.e. of the respondent." So it was held that correction cannot be allowed and khasra girdawari entries have been rightly recorded in Kharif 1963, in favour of, the respondent."

'((()* +'(( "Respondent Sita Ram was admitted by Parkash in possession since Kharif 1963. this was also admitted b applicant Parkash that possession of respondent Sit Ram is forcible and illegal".

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0 "I am afraid, I cannot go into that question as the possession of respondent Sita Ram is even now i.e. of the respondent"


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   "9. In view of this decision and admission of Parkash father of Ishwer it is fully established that possession of respondent Sita Ram has been coming as forcible since kharif 1963, if not prior to that, and this fact was specifically contended in the written statement. that possession of Sita Ram has been coming from 16.6.63 forcible, hostile, continuous to the knowledge of the plaintiff as well as to his father. Now the question is whether since 16.6.1963 possession of Sita Ram is as of a lessee or forcible and illegal. That has to be read in view of the statement of Sita Ram himself which he made in this court. Sita Ram deposed that he and his younger brother Parkash had agricultural holdings. They divided between them; 21 killas each came in their shares. On this killa he was permitted to cultivate by Parkash but when he demanded possession, he declined and he asserted his forcible possession since 16.6.1963."

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   "Stated that I am owner in possession of land in dispute for last 40 years. Plaintiff and respondent had 21 killas and we sow half half of land. The khewat of our 21 killas was separated 30 years ago and since that day, we have been sowing our respective lands separately. The land in dispute was


neither in possession of plaintiff ever, nor plaintiff has concern with said killa.8 .4$ 

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   "Plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. (See: S M Karim v. Bibi Sakinal AIR 1964 SC 1254). In P Periasami v. P Periathambi (1995) 6 SCC 523 this Court ruled that "Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property." The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639 that is similar to the case in hand, this Court held: "As regards the first plea, it is inconsistent with the second plea.

Having come into possession under the agreement, he must disclaim his right there under and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period his title by prescription nec vi, nec clam, nec precario.


Section 53 A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant." .4$.$
  

       
 

   



   

  

       



    

12. Therefore, to prove the plea of adverse possession : (a) The plaintiff must plead and prove that he was claiming possession adverse to the true owner;

(b) The plaintiff must plead and establish that the factum of his long and continuous possession was known to the true owner;

(c) The plaintiff must also plead and establish when he came into possession; and (d) The plaintiff must establish that his possession was open and undisturbed.

It is a settled law that by pleading adverse possession, party seeks to defeat the rights of the true owner, and therefore, there is no equity in his favour. After all, the plea is based on continuous wrongful possession for a period of more than 12 years. Therefore, the facts constituting the ingredients of adverse possession must be pleaded and proved by the plaintiff."

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