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?
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.
4. 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.
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 to 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, 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 3/4 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. Even if the adverse possession of the defendant is taken from the date of 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 had 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 lower Appellate Court on issues Nos. 3 and 4 reversed. As the consequence of which the suit of the plaintiffs for possession is decreed with costs throughout.
14. Appeal allowed.