Bishop Cotton School vs State of H.P.

V.P. Gupta, J.—The Plaintiff-school is a society registered under the Societies Registration Act. The Plaintiff alleges that a school known as ''Bishop Cotton School, Shimla'', was initially opened at Jutogh on 28th July, 1859, but later on it was found that the site and the buildings were not suitable for the school. In October, 1864 a new site was selected for this school which was the south-end of ''Knolls Wood Spur'', measuring 1,70,098 square yards 5 square feet as fully described in para No. 2 of the plaint situate at Station Ward Chhota Shimla. It is alleged that this site was given by the Punjab Government for the school in 1864 and the Plaintiff became the owner and took possession of the same. The Plaintiff started construction of the buildings in the year 1866. The school was shifted from Jutogh to the present site in 1868. The Plaintiff alleges that the property comprises one khasra No. 194 and various built portions on this khasra number are shown as min khasra numbers. It is alleged that the boundary pillars were erected by the Plaintiff for demarcation purposes. The Plaintiff was always considered to be the owner of this property by the Punjab Government and the Municipal authorities and the property remained in exclusive occupation and control of the Plaintiff without any objection or hinderance from any quarter. The revenue estates of Patina and Pateog are on the southern side of this property.

The Plaintiff has constructed several buildings, residential and out-houses, play grounds, servant quarters, latrines, roads, flower houses etc. in this land and the land is enclosed by barbed wire fencing and boundary pillars. It is allegad that in 1979 the Defendant through the officials of the Public Works Department started cutting and digging the lower portion of the disputed property and on an enquiry it was found that the Defendant was constructing a road known as ''Police Barrier Chhota Shimla-Kasumpti Road'' commonly known as Shimla by-pass. The Defendant also cut and removed various valuable Deodar trees standing on the land for the construction of this road and thus caused damage to the Plaintiff''s property. The indiscriminate and negligent digging and the cutting of the road also caused damage to the two blocks of servant quarters of the Plaintiff. The Defendant did not issue any notification for the acquisition of the land prior to start of the work of the construction of the road and this work was started with malafide intentions without the Plaintiff''s consent. Several protests were made by the Plaintiff but the Defendant did not stop the work and continued with illegal and unauthorised cutting, digging and construction of the road. The Plaintiff wanted to take action against the Defendant and for that purpose started collecting revenue records. After perusal of the revenue records the Plaintiff came to know that in the revenue records, the Defendant is shown to be the owner and in possession of the property and the Plaintiff''s ownership and possession is not recorded.

The Plaintiff now alleges that the Plaintiff is the owner and in possession of the property and the Defendant has no right, title or interest in this property. In the alternative it is alleged that if the Defendant had any right, title or interest in the property then the same came to an end long ago due to continuous, uninterrupted, peaceful and exclusive possession of the Plaintiff in assertion of ownership rights ever since the year 1864. The Plaintiff after getting demarcation of the property found that the Defendant had included 7,027 square yards 1 square foot area shown with red in the Akas Tatima attached to the plaint for the construction of the road and had illegally cut and removed 138 deodar and pine trees as detailed in para 9 of the plaint. The Plaintiff now alleges that these acts of the Defendant are unauthorised and illegal. The value of the trees illegally cut and removed by the Defendant is estimated at Rs. 1,40,000/-. It is also alleged that for the safety of the property the construction of a retaining wall has become necessary. Upon these allegations the Plaintiff filed this suit on 30-3-1981, praying for a decree of mandatory injunction, for restoration of the property measuring 7,027 sq. yards 1 sq. foot (unauthorisedly converted as a road) in its original condition and put the Plaintiff in possession of the same. The Plaintiff also prays for an injunction against the Defendant to the effect that the Defendant should not interfere with the lawful possession of the Plaintiff and for recovery of Rs. 1,40,000/- as market value of the trees illegally and unauthorisedly cut by the Defendants. The Plaintiff also prays for a mandatory injunction directing the Defendant to provide a retaining wall throughout the length of the road for the protection of the remaining property of the Plaintiff.

This suit is contested by the Defendant. It is alleged that a suit for mere injunction without seeking a relief for declaration is not maintainable and this Court has no jurisdiction to entertain this suit. It is alleged that the suit is not triable by this Court and the suit should have been for correction of revenue entries. Other objections are that the suit is barred by limitation and is not maintainable in the present form as the Plaintiff is not in possession of the suit property. The plea of estoppel is also raised and it is alleged that the Plaintiff has acquiesced with the lawful possession of the Defendant.

On merits the Defendant has denied the allegations of the plaint and has alleged that the Defendant is the owner and in possession of the suit property. It is alleged that the Defendant did not remove or fell any trees from the Plaintiff''s land. On the other hand the Plaintiff removed 55 trees from the property of the Defendant after obtaining sanction from the Municipal authorities. The aforesaid sanction for cutting of the trees was illegal because the Plaintiff was never the owner of the property. The Defendant alleges that the value of these trees illegally cut and removed by the Plaintiff is Rs. 1,40,000/-. The remaining allegations of the plaint are denied.

Replication was filed by the Plaintiff and in the replication the Plaintiff reasserted the allegations of the plaint and has denied the allegations of the written statement.

Upon the pleadings of the parties the following issues were framed on 8-7-1981:

Whether the suit is within time? OPP

Whether the suit without seeking the prayer for declaration is not competent? OPD

Whether this Court has no jurisdiction to try the suit? OPD

Whether the Plaintiff is estopped from filing the suit due to its acts, deeds, conduct and acquiescence? OPD.

Whether the Plaintiff has no cause of action to file the present suit ? OPD

Whether the land mentioned in Para 2 of the plaint is owned and possessed by the Plaintiff as alleged? OPP

If issue No. 6 is not proved, whether the Plaintiff has become owner of the suit property mentioned in para 2 due to adverse possession as alleged?

Whether the Defendant, while constructing the road, has included any area of the Plaintiff''s property in the road? If so to what extent and with what effect?

Whether the Defendant has felled and removed trees from out of the Plaintiff''s property, if so of what value and with what effect?

Whether by the construction of the road the other property of the Plaintiff has become dangerous and requires protection by providing retaining wall as alleged, and if so, its effect ?

Whether the Plaintiff is entitled to the relief of mandatory, prohibitory and permanent injunction as allged?

To what compensation, if any, is the Plaintiff entitled?

Relief.

The parties led evidence and arguments were heard.

My findings on the various issues are as follows:

Issue No. 1.

This issue was not contested by the Defendant''s counsel. The Plaintiff has filed this suit for injunction and for recovery of Rs. 1,40,000/-. The cause of action is alleged to have arisen in the year 1980 and the present suit was filed on 30th March, 1981. The suit is, therefore, within time. This issue is decided in favour of the Plaintiff.

Issue No. 2.

This issue is not pressed by the Defendant''s counsel. The Plaintiff has claimed relief of injunction and also the price of the trees. The prayer of declaration is impliedly included in this suit and the suit is competent in the present form. This issue is decided against the Defendant.

Issue No. 3.

This issue is not contested by the Defendant''s counsel. The present suit is of a civil nature and pertains to rights to property. Hence this Court has jurisdiction to try the suit. This issue is decided against the Defendant.

Issue No. 4.

This issue is not contested by the Defendant''s counsel. There is no evidence to prove that the Plaintiff is estopped from filling the present suit by any act, conduct or acquiescence. In these circumstances this issue is decided against the Defendant.

Issue No. 5.

This issue was not contested by the Defendant''s counsel. Brigadier S. Mukand (P.W. 6) is the Headmaster of the Plaintiff school. He has stated that the Defendant interfered with Plaintiff''s possession in the end of the 1979 and objections were raised regarding this interference. It is thus proved that the Plaintiff has an enforceable cause of action. This issue is decided against the Defendant.

Issues Nos. 6 and 7.

Both these issues can conveniently be decided together.

The learned Counsel for the Plaintiff contends that the disputed land is entered in the name of the Defendant in the revenue records. It is contended that the actual possession of the land is with the Plaintiff from the year 1866 and that the Plaintiff has built a school and other buildings on this land. The learned Counsel contends that the whole property which includes the built area comprised of one consolidated khasra No. 194. He also contends that in the Municipal records the Plaintiff is shown to be in ownership and possession of the buildings. In support of his contention he referred to the extracts of the minutes of the meetings recorded in a book maintained by the Plaintiff and also copies of the records from the office of Municipal Corporation Shimla. It is contended that buildings were constructed by the Plaintiff after incurring huge expenditure and the Plaintiff was always exercising rights of ownership over the disputed property. The learned Counsel also referred to the oral evidence produced by the parties. He contends that the land was in fact given to the Plaintiff as ownership. In the alternative the Plaintiff has exercised rights of ownership over the disputed property openly and peacefully for a period of more than hundred years with the result that the Plaintiff has become owner of the same by adverse possession.

The learned Counsel for the Defendant contends that the property is not proved to be in the ownership of the Plaintiff and there is no documentary proof regarding Plaintiff''s ownership. He contends that the property was never transferred to the Plaintiff as owner. The learned Counsel further contends that the Defendant is shown to be owner and in possession of the property for the last about hundred years and the version of the Plaintiff that the property was transferred to the Plaintiff by the Defendant is wrong. He further contends that there is no plea of adverse possession in the plaint and as such no evidence can be looked into for proving adverse possession. His contention is that for proving adverse possession there should have been a specific plea and then the proof for the same. According to the learned Counsel for the Defendant, the Plaintiff has failed to prove as to when the adverse possession started. He contends that the possession of the Plaintiff, if any, is that of a licensee or permissive and the same can never ripe in adverse possession. He contends that the payment of taxes etc. cannot prove adverse possession and that mere possession for a long period is not sufficient to prove adverse possession.

I have considered the contentions of the learned Counsel for the parties.

These two issues in fact are the only important issues in this case.

Bishop Cotton School was originaly founded by Bishop Cotton in July, 1857. In the Gazetteer of Shimla District 1888-89 (Ex. P 67) it is mentioned that Bishop Cotton intended to found a number of schools and collected funds for the same. "In January, 1863 he opened a school at Jutogh which had been selected by a committee in Shimla as the most suitable spot. It was soon found that neither the site nor the buildings were suitable, and a new site was given by Government in Chhota Shimla on what is known as the Knollswood spur. The present buildings were begun in 1866 and finished in 1868, in which latter year the school was removed from Jatogh. The buildings, which are of a very substantial character but without ornament include accommodation for 150 boarders and four assistant masters in the same block, separate houses for the head master and one assistant master, a chapel, separate hospital with two distinct wards, and house for the sergeant and matron. The total cost was two lakhs and a quarter of rupees.

The Viceroy is the Visitor of the school. The Governors are ex-officio, the Lieutenant Governor of Punjab, the Bishop of Calcutta, the Bishop of Lahore, and the Commissioner of Umballa. There are also four local Governors re-resident in Shimla, elected by the whole body of Governors. The present staff consists of a headmaster and four assistant masters. Within the last six or seven years the average number of boys has been about 100, of whom about 90 are boarders. Twenty of these are on the foundation and pay Rs. 120/- a year less than the other boys. The school receives a grant-in-aid from Government. The parents of the boys are chiefly clerks in Government employ, but there are also many who belong to the non-official classes. The highest class reads for the Calcutta Entrance and First Arts, and until 1882 there had always been candidates for the Roorkee Entrance Examination. Up-to-date (1883) 118 have been sent up for the enterance, of whom 77 passed, two for the F.A. both passing, and 55 for Roorkee, of whom 33 passed."

Ex. P-68 is the extract from the District Gazetteer Shimla District, 1904 published in 1908 by the Punjab Government. In this document it is further mentioned that "within the last six or seven years the average number of boys are chiefly of clerks in Government employ, but there are also many who belong to the non-official classes. The work of the School is arranged in accordance with the Punjab Education Code, and the boys enter for annual examinations of the Department. The School is also affiliated to the Calcutta University, and the higher classes read for the examinations of the University. Boys are also prepared for the entrance Examinations of the various Government services."

It is, therefore, proved that the Bishop Cotton School started functioning at the present site in 1868, and that the buildings had also been constructed at the present site. This fact is also not disputed by the Defendant. The present property in dispute is known as Knollswood Spur in Chhota Shimla.

The Plaintiff has also produced copies of the minutes of the meetings of the Board of Governors of Bishop Cotton School. The first meeting of the Governors was held on 6-5-1863 (copy Ex. P-25). In this meeting the draft proposed statute of the school were read. In the second meeting held on 2-6-1863 (copy Ex. P-26), in minute No. 6, it is mentioned that the Government might without any sacrifice of economy, transfer all the buildings to the Governors to be made use of at their discretion, which relates to the buildings situated at Jutogh. In the meeting held on 22-12-1863 (copy Ex. P-27) it is mentioned that the buildings were handed over by the Punjab Government to the Governors of the school with the exception of Sergeant Bungalow and the Post Office.

In the minutes of 5th meeting dated 12-4-1864 (Ex. P-28), the draft of the deed of transfer of the Jutogh estate to the school was read and Colonel Lawrance was requested to have some alterations made in the deed and to transmit it to the Punjab Government. In the minutes of the 6th meeting held on 6-8-1867 (Ex. P-29) it is recorded that Jutogh was not found suitable for the purpose of school and the Government was to be approached for resumption of the property at Jutogh.

In the 7th meeting held on 8-9-1864 (Ex. P-30) it is recorded that the Government was willing to take over the buildings occupied by the school at Jatogh and that the headmaster presented plans of two proposed sites for the running of the school. One of the two proposed sites was Knollswood spur. The Governors were to inspect the new sites proposed for running the school. In the meeting held on 13-9-1864 (Ex. P-31) it is mentioned that the Governors had inspected both the sites and they found Knollswood spur to be a better site for the running of the school. In the meeting held on 20-9-1864 (copy of minutes (Ex. P-32) it is recorded that the property of Jatogh were to be disposed of for Rs. 22,000/- and the site of Knollswood spur was selected for running the school. It was further passed that the Government be approached to grant the Knollswood spur site. From the minutes of the 10th meeting dated 17-10-1864 (Ex. P-33) it appears that Raja Keonthal had refused to sell or give on rent Knollswood spur site. The Governors undertook to see the Raja for giving up the land for a fair value.

In the minutes of the 11th meeting dated 27-1-1865 (Ex. P-34) it is stated that there was every reason to believe that the Knollswood spur site would be given for the purpose of the school and that preparation of the buildings should be started without delay. In the minutes of the 12th meeting dated 28-1-1865 (Ex. P-35) it is stated that the government offered Rs. 19,000/- to the Plaintiff as the price of the house situated in Jutogh and the Government was asked to make available the services of an engineer for raising construction of the building on the present site (Knollswood spur).

In the minutes of the meeting held on 28-3-1865 (Ex. P-36) it is stated that Bishop Cotton met the Viceroy about the Knollswood site present disputed site and that the Viceroy was not likely to give in exchange any village out of British India to the Raja of Keonthal. It is further stated that the Governors had agreed to pay full value of the land in case the Government refused to grant the consideration which the Raja expects and that advice be sought for the construction of the buildings. In the minutes of the meeting dated 24-4-1865 (Ex. P-37) it is recorded that the Raja of Keonthal had some correspondence with the Government and that the Governors of the school were agreeable to pay half of the price to the Government so that the Raja could be paid the full price of the land.

In the minutes of the meeting held on 3-5-1865 (Ex. P-38) it is stated that the Raja was willing to transfer the property to the Government and that the work of the buildings was in progress. From the minutes of the meeting dated 7-7-1865 (Ex. P-39) it appears that the Raja was still unwilling to transfer the land except for land in exchange. The minutes of the meeting dated 27-12-1865 (Ex. P-40) suggest that the proposal regarding exchange of land was almost accepted. The minutes of the meeting held on 19-3-1866 (Ex. P-41) prove that the collection for the building funds was being done. The minutes of the meeting held on 7-5-1866 (Ex. P-42), the minutes of the meeting held on 18-7-1866 (Ex. P-43), the minutes of the meeting held on 4-8-1866 (Ex. P-44) and the minutes of the meeting held on 11-8-1866 (Ex. P-45) prove that the construction work of the buildings was in progress. The minutes of the meeting held on 26-9-1866 (Ex. P-46) prove that the Viceroy laid the foundation stone of the school called ''Bishop Cotton School'', Shimla erected as a memorial of the Mutiny of 1857. The minutes of the meeting held on 8-10-1866 (Ex. P-47) record about the death of Bishop Cotton. The minutes of the meeting dated 17-2-1866 (Ex. P-49) records that the Punjab Government had ordered the Knollswood spur site to be made over at once to the Governors of the school. The minutes of the 33rd meeting dated 20-3-1867 (Ex. P-50) records that the name of the school was changed to Bishop Cotton School. The other copies of the minutes of the meetings Ex. P-50/A to P-50/G, P-51 and P-52 also prove that the work of the buildings was in progress.

From the aforesaid extracts of the District Gazetteer of Shimla and the various meetings of the Governors of the school it is proved that the buildings of the school were initially constructed at Jutogh but thereafter the school was shifted to the new site in Chhota Shimla on what is known as Knollswood spur (the present disputed property). The building work of the school and its attached buildings was completed in the year 1868 and the school was named as ''Bishop Cotton School''. These documents also prove that the estate ''Knollswood spur'', in Chhota Shimla was initially in the Keonthal State of which the Raja of Keonthal was the owner. This site was either taken in exchange or by purchase from the Raja of Keonthal. The Government rendered all sort of help for the construction of the school buildings and also in the transfer of the site to the Governors ofthe school. The Government also intended to transfer the ownership and the control to the Governors of the Bishop Cotton School and the Governors of the school were to manage this property and remain in possession of the same as owners.

Ex. P-20 to P-22 are the certificates with respect to the registration of the Bishop Cotton School, the memorandum of association and the forwarding letter of the Assistant Registrar, Joint Stock Companies. These documents prove that the Bishop Cotton School society known as Bishop Cotton School, Shimla was registered under the provisions of Act 21 of 1860 and a certificate of registration was issued on 7-11-1873 and further that the Plaintiff school was in existence at Shimla in the year 1873. Ex. P-23 is the declaration of statutes and appointment of first elected Governors of Bishop Cotton School and Ex. P-24 is the bond executed by Mr. Innes, Civil Engineer dated 1-9-1866, who undertook to construct the buildings of the school.

The Plaintiff also produced some copies from the property register of Shimla Municipal Committee from the year 1939 to 1980 (Ex. P-1 to Ex. P-5). In these documents an area of 1,70,092 sq. yards and 2 sq. feet is shown in the ownership of the Board of Governors of Bishop Cotton School. The Bishop Cotton School is paying the ground tax, house tax and water tax to the Committee subject to 1/3rd remission of taxes. The documents Ex. P-6 and P-7 prove that the Plaintiff was given permission to cut the trees in August, 1979 and the rates for the trees were fixed (vide copies Ex. P-8 and P-9) by the Chief Conservator of Forests. The photographs Ex. P-10 to P-19 prove that some boundary pillars and the buildings are visible in the disputed property. The documents Ex. P-53 to P-56 prove that the Plaintiff objected to the cutting of the trees by the Defendant for the construction of road. The Plaintiff was given the sanction to raise construction etc. vide copies Ex. P-68 to P-106. A letter Ex. P-95 dated 4-5-1932 proves that the Raja of Keonthal State objected to an encroachment of about one biswa of land by the Bishop Cotton School authorities.

Ex. D-5 and D-6 (also Ex. P-109) are jamabandis for the year 1930-31. The disputed property is shown in the ownership of the State and in possession of P.W.D. Provincial Division. The original khasra No. 194 is split up into 43 small khasra numbers which are denoted as khasra No. 194/1 to 194/42 and 194 (Bakimanda). Khasra No. 194/1 to 194/42 are the built portions while khasra No. 194 (Bakimanda) is Gairmumkin Ahata. The total area of khasra No. 194 (43 plots mentioned above) is 1,70,201 square yards and 8 square feet out of which gairmumkin ahata is 159967 square feet and the remaining is either the built portion or roads, tank etc.

Ex. P-107 and Ex. P-108 are the copies of Jamabandis for the year 1950-51 and Ex. D-3 and D-4 are the copies of the jamabandis for the year 1976-77. Entries in Jamabandis for the year 1950-51 and 1976-77 are similar to the entries of the Jamabandi for the year 1930-31.

The report dated 20-9-1981 (Ex. P-65) of Ram Saran Kanungo (Local Commissioner) along with the plan (Ex. P-66) shows that the Defendant has encroached upon the disputed property. By letter (Ex. D-1) dated 27-6-1939 and letter (Ex. D-2) dated 14-8-1979 the Plaintiff school wanted permission to fell trees.

Now from the documentary evidence it is proved that the Plaintiff is in occupation of the disputed property from the year 1868 onwards and has built a school building with other attached buildings. Originally the whole property comprised of one khasra number 194, which is now split in 43 khasra numbers. Out of these 43 khasra numbers the Plaintiff is in actual possession of 42 plots. The Plaintiff had also been asserting rights of ownership and possession over the disputed property from the beginning. The municipal records show the ownership and possession of the Plaintiff over the disputed property. The taxes etc. are assessed in the name of the Plaintiff and were paid by the Plaintiff. The Plaintiff obtained permission for-making constructions and for cutting and removing the trees as and when the occasion arose.

The parties have also produced oral evidence on these issues. Datt Ram (P.W. 2), a Junior Engineer of the Municipal Corporation, has stated that several applications were filed by the Plaintiff seeking sanction of building plans for construction, repairs and renovation and the first application was filed on 20-9-1933. Jangi Ram (P.W. 3) a Range Officer of the Municipal Corporation, stated that the Plaintiff was giving applications seeking permission to cut and remove trees from the compound of Bishop Cotton School premises and he has also stated about the boundaries of the Bishop Cotton School premises. He has also stated that there are boundary pillars in existence for the last about 32 years. Khiat Singh Negi (PW 7), R.N. Hakim (P.W. 8), R.K. Sud (P.W. 10) and Janak Singh (P.W. 11) have also stated regarding the existence of boundary pillars and the barbed wire fencing around the Bishop Cotton School premises.

The Defendant''s witnesses have also admitted in their statements about the existence of the boundary pillars or the barbed wire fencing around the Bishop Cotton School area.

Om Datt (DW 1) has stated that there are 10/12 buildings and three play grounds in the disputed premises and that the buildings are scattered. K.C. Thakur (DW 2) has also admitted the existence of boundary pillars and barbed wire fencing on a portion of the Bishop Cotton School premises. He has also admitted that there are many scattered buildings of the school and the grass grows on the vacant land of the school. He also admitted the existence of play grounds within the school area and that the buildings, play grounds and the vacant area are in the management of the school. He further admitted the existence of iron gates on the boundary pillars of the school area.

R.D. Sharma (DW 3), Junior Engineer, also admitted the existence of boundary pillars by which khasra No. 194 is demarcated at certain points. He further admitted that there are buildings of the Plaintiff on a part of khasra No. 194 and on a part of the land are Deodar and Kail trees. He also admitted the existence of gates put up by the Plaintiff and that the work of management, maintenance etc. within the boundaries of the school is done by the Plaintiff. He also admitted that the property of the school is a compact unit and that in this unit there are buildings of the school which are scattered and further that there are play grounds and passages in the compact unit.

Naranjan Singh (DW 4) has also stated in similar manner and has admitted that there are servant quarters, hostel, play grounds of the Plaintiff in the disputed premises. Devisingh (DW 6) has also admitted the aforementioned facts regarding the boundary pillars and the barbed wire fencing. S.J. Mukand (PW 6) is the Headmaster of the school and he has stated about the possession of the Plaintiff over the disputed property and the existence of boundary pillars, gates and the barbed wire fencing. He has also proved the various documents which have already been discussed.

Thus from the oral evidence produced by the parties, it is proved that the actual possession, control, and management of Khasra No. 194 has all along remained with the Plaintiff and that the Plaintiff''s possession was never interfered till the year 1979.

The learned Counsel for the Defendant also did not dispute the possession of the Plaintiff over the built portion of the disputed property.

The first contention of the Defendant''s counsel that there is no plea of adverse possession in the plaint, cannot be accepted in view of the clear and unambiguous allegations made in para 8 of the plaint. The Plaintiff has alleged in unequivocal terms that "in any case whatever right, title or interest the Punjab Government had in the property, the same came to an end long ago due to continuous, uninterrupted, peaceful, exclusive and open possession by the Plaintiff in exercise and assertion of its own rights as owner ever since the year 1864 A.D. and the defendent acquired no right, title or interest in the property. The Defendant or its predecessors never claimed any interest in any portion of the property nor occupied it in any manner and had no control over it rather they accepted and admitted the Plaintiff to be the owners of the property."

These allegations are denied" by the Defendant in the written statement. The Defendant alleges that "the property mentioned in para 2 of the plaint is owned and possessed by the Defendant and the Defendant is in the lawful possession of the land. Moreover the Plaintiff is estopped from filing the suit on account of their acts, deeds and conduct at this belated stage".

On these allegations issue No. 7 regarding adverse possession was framed on 8-7-1981.

The Plaintiff has claimed ownership of the property by transfer from the State. In the alternative the Plaintiff has claimed adverse possession by pleading all ingredients. The parties knew their respective contentions, and a specific issue was framed. In these circumstances, the contention of the Defendant''s counsel that there is no plea of adverse possession is not accepted.

The next point to be determined is firstly as to whether the Plaintiff is owner of the property by transfer from the government. On this question the documentary evidence proves that the government had all intentions to transfer the property in favour of the Plaintiff, the government was also acting in a manner as to confer full ownership rights to the Plaintiff, but still there is no documentary evidence to prove that the property was actually transferred to the Plaintiff. The Defendant could only transfer the property to the Plaintiff by a regular deed and no such deed is proved on record. In these circumstances, it has to be held that the Plaintiff did not acquire any right of ownership by transfer from the Government.

The second question to be determined is as to whether the Plaintiff has acquired ownership by adverse possession or not. The contention of the Defendant''s counsel is that the Plaintiff is in permissive possession of the property.

The Defendant has nowhere pleaded in the written statement that the possession of the Plaintiff over the disputed property or on any part of it is permissive or in the nature of a licensee. The Plaintiff is claiming the ownership and possession of the property as an owner by transfer or in the alternative by adverse possession, while the Defendant is denying the Plaintiff''s title to the property and is claiming the ownership and possession of the same.

Now if a person takes possession of property under the; colour of transfer which is inoperative, then such possession is adverse to the true owner. The reason is that in such cases the transferee gets no title under the transfer and his possession is, therefore, without title and in contravention of the title of the true owner. In State of West Bengal Vs. The Dalhousie Institute Society, some property was granted by the government in favour of Dalhousie Institute and the Dalhousie Institute was in open continuous and uninterrupted possession and enjoyment of site for over 60 years. The Dalhousie Institute was also treated as an owner by the Municipal Corporation as well as by the Government. Subsequently a dispute arose and it was found that the possession of the Dalhousie Institute was on the basis of a grant which was invalid, meaning thereby that in fact there was no grant in existence in favour of the Dalhousie Institute. It was held that the possession of the Dalhousie Institute was adverse and the Dalhousie Institute had acquired a title to the property. The reason was that the Dalhousie Institute had no legal title to remain in possession of the property but nevertheless holding possession of the land under colour of invalid grant of the land in perpetuity and free from rent for the purpose of a market. Such possession not being referable to any legal title, it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the possession was taken under the invalid grant. The possession was un-interrupted and open and, therefore, the Dalhousie Institute had acquired title by adverse possession.

In Collector of Bombay Vs. Municipal Corporation of The City of Bombay and Others, a similar situation arose and it was held that if there is a transfer of the property and subsequently it is found that the transfer was invalid then the transferee could acquire a title to the property by adverse possession.

In AIR 1942 427 (Oudh) it is held that if a person is in possession of a property and there is nothing to show that that person or his ancestors ever acknowledged the title of the Plaintiff and that there is also nothing to show how that person came in possession, then that person must be taken to have acquired title by adverse possession. The facts were that the Plaintiff was a talukdar and proprietor. He alleged that his ancestors settled j one Sita Ram to act as a priest of the tenants of the village and after his death his grandson Mendi Lal was appointed as the priest and was residing on the land. It was alleged that the Defendant without any right occupied the house and was getting a temple constructed on the land for the use of public. The Plaintiff prayed for a decree of possession and in the alternative also prayed for injunction that the Defendant No. 1 be asked not to construct a public place of worship on the land. The Defendant contested the Plaintiff''s claim. It was found that the Defendant was in possession of the property and there was nothing to show that the Defendant or his ancestors ever acknowledged the title of the Plaintiff. It was also not proved as to how the Defendant came in possession of the property. In these circumstances it was held that the Defendant had acquired title by adverse possession.

The learned Counsel for the Defendant also relied upon the following judgments.

In AIR 1935 53 (Privy Council) it is held that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed.

AIR 1951 gau 183 Rangulal Ram v. Makhan Lal and Ors., in which it is held that the possession cannot be adverse if the same can be referred to a lawful title and that the payment of house tax etc. itself is not sufficient to prove adverse possession. It further lays down that possession in the eyes of law consists of the fact of physical occupation and the mental act of holding the subject of possession to the exclusion of others and that the mere acts of user which do not interfere and are consistent with the owner''s title are not sufficient to prove adverse possession.

AIR 1924 P.C. 150 Kodoth Ambu Nair v. Secretary of State for India, in which it is held that a licensee cannot claim title from possession, however long, unless it is proved that the possession was adverse to that of the licensor to his knowledge and with his acquiescence.

AIR 1931 162 (Privy Council) in which it is held that if a person without any colour of right wrongfully takes possession as a trespasser of the property of another, any title which he may acquire by adverse possession will be strictly limited to what he has actually so possessed.

The State Bank of Travancore Vs. Aravindan Kunju Panicker and Others, it is held in this case that a permissive possession cannot be converted into an adverse possession unless it is proved that the person in possession asserted an adverse title to the property to the knowledge of the true owner for a period of 12 years or more. In this case the possession of the property was with the tenant of Tharwad and the possession of a person who had only a lien over the property for the amount advanced by him was held to be symbolical and could only be permissive possession. It was further held that a subsequent purchaser of that person''s right can have no better title than what that person had. Their Lordships held that in the absence of evidence to show that the persons or his successor in interest asserted any hostile title to the suit property to the knowledge of the true owners at any time before the suit, their possession cannot be said to be adverse possession.

Angati Venkateshwarlu@Appalakonda@Konda Vs. Maharanipeta Military Mosque, It is held that the adverse possessor should assert a title in himself openly and in derogation of the title of the true owner for a continuous period of twelve years and that the proof of mere possession is not enough.

AIR 1932 Oudh 46 Suraj Bali v. Lala Mahadeo Prashad. It is held that mere possession for any length of time does not create any title and that payment of water and house tax is not a conclusive proof of adverse possession because these taxes are to be paid by every occupier.

Beni Madhavprasad and Others Vs. Rasklal Ambalal and Others, It is held that mere unlawful possession cannot mean adverse possession and the person claiming adverse possession must expressly or impliedly deny the title of the true owner and there should be an animus of exclusive ownership.

AIR 1976 Gal. 55 Premendu Bhusan Mondal v. Sripati Ranjan Chakravarty. It is held that if a person in unauthorised possession admits the title of the true owner and that a trespasser or a squatter who does not set up a claim of right cannot claim adverse possession and no length of mere squatting possession is a good defence in a suit for possession by the true owner.

The law is that a person claiming adverse possession has to prove that he has remained in uninterrupted possession of !the property to the knowledge of the true owner and has denied the title of the true owner and asserted his own rights of owner-j ship in the property to the exclusion of the true owner. Otherwise mere possession for any number of years cannot constitute! adverse possession. Regard must be had to the animus of the! person doing the act and this has to be ascertained from the facts and circumstances of each case. If the possession of a person is referable to a lawful title then the same cannot be adverse and if a person enters the possession with the permission of the true owner then the adverse possession can only start from the time when he denies the title of the true owner and claims adverse possession.

From the documents or from the pleadings of the parties in the present case it is not proved that the possession of the Plaintiff was permissive at any stage. The Plaintiff claimed ownership by transfer but this case is not proved. The Plaintiff alternatively claims ownership by adverse possession.

The entries in the jamabandis for the years 1930-31 and 1950-51 and 1976-77 are patently wrong with respect to the column of possession. In these revenue records the possession is shown to be of P.W.D. Provincial Division, while actually the possession of the various buildings or gairmumkin areas (shown as Khasra No. 194/1 to 194/42) is with the Plaintiff. This position is not disputed by the Defendant''s counsel. Hence no reliance can be placed upon these jamabandis regarding the possession and to that extent entries in the jamabandis are wrong.

The learned Counsel for the Defendant further contended that for claiming adverse possession the Plaintiff has to claim possession upon every parcel of the land and the possession should be actual possession. It is correct that possession of a trespasser is limited to actual possession only, whether1, be trespasser himself or through another person. A wrong doer acquires possession inch by inch of the part which he occupies. At the same time it is not an universal principle and in appropriate cases, a wrong doer or person claiming adverse possession can prove that he enjoyed dominion over the property in the manner in which such dominion is normally exercised. Where the entry of a trespasser in the property is under a defective grant or title, then in such a case it must be taken that the trespasser intends to take possession of the whole of the property and not merely of the part of which he has been in actual possession or direct possession.

Now in the present case it is not disputed that originally there was only one khasra No. 194 and the Plaintiff constructed buildings etc. upon various parts of this khasra number for the purposes of running a school known as ''Bishop Cotton School.'' It is admitted that the school is in existence for the last about more than 100 years, at the present site. The vacant portion of khasra No. 194 is shown as Gairmumkin Ahata. The counsel for the Plaintiff contended that this Gairmumkin Ahata is in fact a part of the school premises and the areas are used as play grounds, court yards etc. He also contended that the area of khasra No. 194 is demarcated by boundary pillars and barbed wire fencing as well as gates. Oral evidence has also been produced to prove these facts. According to the Plaintiff''s counsel the whole of khasra No. 194 is in effective control and occupation of the Plaintiff and even the witnesses of the Defendant have admitted that nobody can enter the area of khasra No. 194 without Plaintiff''s permission. It is contended that the boundary pillars were constructed by the Plaintiff and barbed wire fencing was also put by the Plaintiff.

In ILR 24 All. 294 Iqbal Husen and Ors. v. Nand Kishore and Ors., it was held that if evidence of possession of certain specific property is proved then it is not necessary that definite acts of possession should be proved regarding appendage. In this case a person was found to be in possession of a garden and it was held that the possession of the garden imported possession of the garden-wall and of the trees springing out of the wall.

In AIR 1925 Sind 201 Ramzan and Ors. v. Fakir Mohamed and Ors., it was held that where a party is in possession of a part of land with defined boundaries in exercise of an assertion to claim the whole, such possession is evidence of the possession of the whole.

In AIR 1948 76 (Privy Council) it was held that actual physical possession of every inch of land is not necessary. But it should be considered whether the acts of possession which had been proved would legitimately show that the Plaintiff had enjoyed dominion over this property in the manner in which such dominion is normally exercised. This judgment was delivered in appeal from a case reported in Hafiz Mohammad Fateh Nasib Vs. Sir Swarup Chand Hukum Chand, Firm and Another, where the facts are stated in detail. It is held that in case of adverse possession relating to a compact plot of land, part of which had been let out to tenants and part of which was vacant, it would be sufficient for the Plaintiff to show that for a period of 12 years or more he held the tenanted land through tenants who had attuned to him or through licensee whom he had permitted to remain on the land and that in respect of untenanted land he had asserted his possession from time to time in some suitable manner, for instance, by taking or selling the produce of such land. Mere interference with his possession by the rightful owner would not be sufficient to show that he had been dispossessed unless such interference had resulted in his being definitely ousted from any portion of the land. Further it is held that the adverse possession need not be shown to have been brought to the knowledge of the owner. It would be sufficient that the possession was overt and without any attempt at concealment, so that the person against whom time was running ought to know if he exercised due vigilance to have been aware of what was happening.

Thus if it is proved that the Plaintiff had an effective control over the whole of khasra No. 194, then in that case the Plaintiff can claim the whole of the disputed property by adverse possession and the simple fact that some of the property is lying vacant will not in any way deprive the Plaintiff of its claim for adverse possession.

The Plaintiff has produced the Aks Shajra and a plan of the whole of khasra No. 194. In this plan, the encroached portion is also shown. The report of the Local Commissioner is Ex. P-65 and the plan is Ex. P-66. Similarly the Aks Tatima Shajra (Ex. P-110 and Ex. P-111) prove that the various parts of khasra No. 194 are located at different places and the whole khasra No. 194 in its consolidated form has denned boundaries. It is, therefore, proved that the disputed property of khasra No. 194 has a denned boundary and is enclosed by a barbed wire fencing having boundary pillars. There is no land of the Defendant in between the various khasra numbers, which have been carved out out of the main khasra No. 194.

The contention of the Defendant''s counsel regarding Plaintiff''s possession as being permissive or that of a licensee is not proved and is not pleaded in the written statement. On the other hand, it is proved that the Plaintiff school is in existence from the year 1868 and several buildings of the school were constructed by the Plaintiff for running the school or to accommodate the students and its employees. The government had in fact at the initial stages conceded the rights of the Plaintiff and had helped the Plaintiff in establishing the school with the result that the Plaintiff was being treated as an owner by the government. In any case, the Plaintiff asserted the rights of ownership on the property.

Another contention raised by the Defendant''s counsel is that the Plaintiff has failed to prove as to when the adverse possession started.

I have already discussed that in fact the Plaintiff was put in possession as owner somewhere between the years 1866 to 1868 by the government and the government rendered all help and assistance in the establishment of the school by the Plaintiff. In fact from that date onwards the Plaintiff asserted the rights of ownership (although under an impression that the property had been transferred to the Plaintiff as an owner by the government). As no transfer in favour of the Plaintiff is proved and the oral transfer, if any, is void and ineffective, therefore, the possession of the Plaintiff is to be deemed to be adverse from the year 1868 onwards because the Plaintiff had all along been asserting the rights of ownership and denying the title of the Defendant to the disputed property. The conduct of the Plaintiff right from the beginning squarely establishes that the Plaintiff had asserted the rights of ownership and these assertions were within the knowledge of the Defendant. The Plaintiff has thus become the owner of the disputed property by adverse possession. In view of the aforementioned discussion, issue No. 6 is decided against the Plaintiff and issue No. 7 is decided in favour of the Plaintiff.

Issue No. 8.

Ex. P-65 is the report and Ex. P-66 is the plan of the Local Commissioner (Ram Saran Kanungo). The Local Commissioner was appointed vide order dated 28-8-1981 with the consent of the learned Counsel for the parties for finding out the area of khasra No. 194, which has been included and covered by the road and the parties were directed to appear before the Local Commissioner at the time of measurement. The parties actually appeared before the Local Commissioner on 20-9-1981 and measurements were conducted in their presence. According to the report of the Local Commissioner (Ex. P-65), an area of 9052 sq. yards and 2 sq. feet was found to have been included in the road from Khasra No. 194. The parties were given time to inspect the report and file objections to the same, vide order dated 28-9-1981, but no objections were filed by the parties and as such the report of the Local Commissioner is accepted because a perusal of the report does not disclose any reasons to reject the same. There is no rebuttal to this evidence. Thus it is held that an area of 9052 sq. yards and 2 sq. feet is included from the disputed khasra number for the construction of the road. The Defendant has thus encroached upon the ownership of the Plaintiff to the extent mentioned above.

Issue No. 9.

Shri. S.J. Mukand (PW 6) states that 139 trees were cut by the Defendant due to digging operations of the road. He further states that the price for the 55 trees has already been received by the Plaintiff which trees were sold to different contractors, His statement has not been challenged in cross examination. The Plaintiff has produced copies Ex. P-8 and P-9 to prove the market rate of the trees in Shimla during the years 1979-80 and 1980-81. These market rates are proved by Shri. K.R. Fista (PW 4). It is, however, not proved as to what type of trees were removed by the Defendant. Even if it is held that some trees were cut or removed by the Plaintiff, still the Plaintiff has failed to prove their market value. This issue is decided in favour of the Plaintiff to the extent that Defendant did remove trees from the Plaintiff''s property but the value of the same is not proved.

Issue No. 10.

The Plaintiff has produced photographs Ex. P-10 to P-18 and also relied upon the plan prepared by the Local Commissioner (Ex. P-66) and the site plan (Ex. DW 3/A) proved by Shri. R.D. Sharma, Junior Engineer (DW 3). Shri. S.J. Mukand (PW 6) states that the Plaintiff has suffered loss. It is true that some property of the Plaintiff seems to have been damaged due to digging operations of the road, but the Plaintiff has failed to prove the loss, which has occasioned to the property. Shri. S.J. Mukand (PW 6) states that to save the remaining property of the Plaintiff, retaining walls etc. are to be constructed and that the expenditure of four to five lakhs of rupees is to be incurred for the purpose. This solitary statement of the Plaintiff is not sufficient without any further evidence. Thus it is not proved that to save the remaining property of the Plaintiff, retaining walls etc. in the nature as has been claimed by the Plaintiff, are to be constructed. This issue is decided accordingly.

Issue No. 11.

Some of the property of the Plaintiff has been encroached upon by the construction of road as has been discussed under issue No. 8. As the Defendant is interfering with the Plaintiff''s property, therefore, the Plaintiff is entitled to a permanent injunction to the effect that the Defendant should not interfere in the possession of the Plaintiff with respect to the disputed property. The Plaintiff is also entitled to the relief of mandatory injunction to the extent that the Defendant should restore the property dug for the construction of the road to its original condition and put the Plaintiff in possession of the same.

Issue No. 12.

The Plaintiff has not proved the amount of damages suffered for the unauthorisedly cutting or removing of the trees. This issue is decided against the Plaintiff.

Issue No. 13.

As a result of my findings on the various issues, the Plaintiff is granted decree for mandatory injunction against the Defendant to the effect that the Defendant should restore the property measuring 9052 sq. yards and 2 sq. feet out of the disputed property of Khasra No. 194 as fully described in the report Ex. P-65 and the plan Ex. P-66 of the Local Commissioner (Ram Saran Kanungo) to its original condition and put the Plaintiff in possession of the same, and also for an injunction restraining the Defendant from interfering in any manner with the possession of the Plaintiff in the property measuring 1,70,098 sq. yds. and 5 sq. feet as entered in Khewat No. 135-min, Khatauni No. 250-min comprised in Khasra Nos. 194/1, 194/ 2,194/3, 194/4, 194/5, 194/6, 194/7, 194/8, 194/9, 194/10, 194/ 11, 194/12, 194/13, 194/14, 194/15, 194/16, 194/17, 194/18, 194/ 19,194/20,194/21, 194/22, 194/23, 194/24, 194/25, 194/26, 194/27, 194/28, 194/29, 194/30, 194/31, 194/32, 194/33, 194/34, 194/35, 194/36, 194/37, 194/38, 194/39, 194/ 0,194/41, 194/42 and 194 Bakimanda of Jamabandi for the year 1950-51, situated at Station Ward Chhota Shimla. The Plaintiff''s suit regarding the reliefs mentioned in paras (c) and (d) of the plaint is dismissed.

Keeping in view the various facts and circumstances of the case, I leave the parties to bear their own costs.