Amar Singh and Others vs Murti Radha Mohan Ji and Another

Rohit Arya, J.—This appeal by plaintiffs is directed against the judgment and decree dated 25/01/2006 in Civil Appeal No. 115A/2005 confirming the judgment and decree dated 01/7/2005 in Civil Suit No. 266A/2004. Plaintiffs'' suit for declaration and permanent injunction has been dismissed.

Plaintiffs filed a suit inter alia contending that the suit land falling in survey nos. 485, 486, 487, 483 and 490 admeasuring 5.422 hectare in village Khaskheda (hereinafter referred to as the suit land) was given to Murti Radhamohan Mandir on Muafi Lagan by Zamindar Mansingh. The Manager and Pujari of the temple had given the aforesaid suit land to plaintiffs'' father as a Shikmi Krishak orally on the condition that he shall continue to pay Lagan in respect of the suit land and shall take care of needs of Sadhu-Saints. As such, plaintiffs'' father on such condition had all around been in possession of the suit land doing cultivation and harvesting crops thereon. It is submitted that the suit land is not a Muafi Aukaf land, in fact it is a Zamindari Muafi land. Name of plaintiffs has also been recorded in revenue records. The Sub Divisional Officer has no authority or jurisdiction to dispossess the plaintiffs from the suit land and give it on Supurdagi or put the same for auction. The plaintiffs have not been dispossessed so far. Apprehending forcible dispossession, plaintiffs brought the instant suit seeking declaration of title over the suit land and permanent injunction restraining defendants not to dispossess the plaintiffs from the suit land and further seeking declaration that the suit land be not put to auction and that the order of SDO dated 4/6/1984 is null and void.

Defendants filed written statement and denied plaint allegations. It is inter alia submitted that the suit land in fact is a government land. In revenue records suit land is recorded to be under the management of Collector. It is denied that the suit land was of Zamindar Mansingh, as alleged. It is submitted that in fact suit land has never been of Mandir as well. Since after abolition of Zamindari the suit land was never Khudkasht of Zamindar, therefore, the same was declared as a government land and by the State Government the same has been given as a Muafi land to Murti Radhamohan Mandir. It is denied that Mansingh was Pujari of the temple. It is submitted that plaintiffs had never paid any Lagan in respect of the suit land. Plaintiffs'' or their father''s status as Shikmi Kashtkar has also been denied. It is submitted that in fact plaintiffs are the encroachers over the land of the temple and, therefore, liable to be evicted. With the aforesaid pleadings, suit was prayed to be dismissed.

Based upon the aforesaid pleadings, trial court framed issues and allowed the parties to lead evidence. Upon detailed examination of evidence on record trial court dismissed the suit. On appeal, the first appellate court re-appreciated the entire evidence on record. It is found that there is no evidence much less documentary evidence on record that the suit land was of Zamindar Mansingh, in fact there is no evidence to show that Mansingh was the Zamindar. In the Khasra entry of Samvat 2004 suit land is shown to be of Mandir where Mansingh''s name is shown as Pujari. Hence, land being of Mandir, Pujari has no right to give the same to the plaintiffs and, therefore, plaintiffs cannot claim the status of Shikmi Krishak. The whole story asserted by the plaintiffs in the plaint is found to be concocted and maneuver to grab the suit land. It is also found that there is no evidence on record showing possession much less legal possession of plaintiffs over the suit land to justify the claim of plaintiffs of acquiring title by virtue of adverse possession. As there is no continuity of possession, no protection can be claimed by the plaintiffs with the claim of having been in settled possession for the last 35 years, as alleged. In fact in Khasra Panchshala of Samvat 2010 Mansingh''s name is recorded as an encroacher. Eventually, it is held that the suit land in fact is the land of Mandir and in revenue records the same is recorded to be under the management of the Collector. Plaintiffs have no right to hold the suit land as claimed neither they have any title over it nor legal possession. Their status has been found to be that of encroachers. With the aforesaid findings, the first appellate court dismissed the appeal confirming the judgment and decree of the trial court.

Law is well settled as regards adverse possession. It is apposite to state law in this regard as consistently held by the Hon''ble Apex Court and followed by the various High Courts including the jurisdictional High Court.

The facts required to plead and prove adverse possession when the party to a lis set up a plea of acquisition of title adverse possession has to be specific as regards to period and date from which he claims possession and then have to prove that the possession was adequate in continuity, in publicity and in extent to show that his possession was actually visible, exclusive, hostile and continues over the statutory period as contemplated u/s 65 of the Limitation Act to the knowledge of the real owner. Mere physical act of exclusive possession by, itself, cannot justify the claim of adverse possession.

A person pleading adverse possession has no equity in his favour if some one asserts acquisition of title by adverse possession. It, in fact, amounts to trying to defeat the right of true owner and, therefore, burden is very heavy upon such person to prove title by adverse possession and for that he has to plead and establish all the facts necessary as aforesaid to establish his claim.

The Hon''ble Supreme Court in the case of Karnataka Board of Wakf Vs. Government of India and Others, has observed as under:-

In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won''t affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is ''nec vi, nec clam, nec precario'', that is, peaceful, open and continuous. The possession must 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 rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See: S.M. Karim Vs. Mst. Bibi Sakina, : Parsinni (Dead) by Lrs. and Others Vs. Sukhi and Others, and D.N. Venkatarayappa and another Vs. State of Karnataka and others, . Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. Dr. Mahesh Chand Sharma Vs. Smt. Raj Kumar Sharma and others, .

This Court having gone through the judgments impugned and the record of the case is of the opinion that both the courts below have recorded concurrent finding of facts on critical evaluation of oral and documentary evidence on record. The entire gamut of the matter is in the realm of facts. No question of law much less substantial question of law arises in this appeal warranting interference u/s 100 of CPC. Before parting with the judgment, it is considered apposite to observe that in case plaintiffs are found to be in possession of the suit property or part thereof, they shall not be dispossessed except by adhering to due process of law. The appeal sans merits is hereby dismissed.