Badrilal and Others vs Prabulal and Others

Rohit Arya, J.—This appeal by the defendants'' is directed against the concurring judgment and decree dated 02/07/2004 passed in civil appeal No. 54A/2004 by II Additional Judge (Fast Track), Sheopur District Sheopur affirming the judgment and decree dated 30/04/2001 passed in civil suit No. 11A/2000 by II Civil Judge, Class-I, Sheopur u/s 100 of CPC whereby plaintiffs'' suit has been decreed.

Suit land is an agricultural land falling in survey No. 12 area 10 bigha 10 biswa situated in village Bichgwadi, Tahsil and District Sheopur, out of which in respect of 03 bigha 10 biswa, suit for eviction and restoration of possession as well as mesne profits at the rate of Rs. 10,500/- per annum since 1991 was filed. Admittedly, suit land in the revenue record has been recorded in the name of Prabulal, plaintiff. It is averred in the plaint that in the year 1991, the defendants'' No. 3 to 8 in collusion with defendant No. 1 have dispossessed the plaintiff from the suit land illegally and unauthorisedly. It is pertinent to mention here that initially the suit was filed for permanent injunction in the year 1989. During pendency of the suit, since the plaintiff was dispossessed, the suit was amended in the year 1991 and relief of restoration of possession and mesne profits was claimed.

Defendants'' have filed a joint written statement and denied the plaint allegations. Defendants'' admitted that the suit land is recorded in the name of plaintiff, Prabhulal but it is asserted that he was not in possession over the suit land. The defendants'' are in possession over the suit land for the last 12 years, therefore, they have perfected title by adverse possession.

On the basis of the aforesaid pleadings, trial Court had framed issues and allowed parties to lead evidence. Trial Court upon comprehensive appreciation of the documentary and oral evidence on record coupled with the pleadings of the parties found that claim of plaintiff was established and accordingly decreed the suit. On appeal, first appellate Court has re-appreciated the evidence on record. It has been found that the plaintiff''s name has all along been recorded in the revenue record as bhumiswami over the suit land. The claim of defendants'' as regards adverse possession over the suit land has also been discussed thread bare and concurrently recorded a finding that though the suit was initially filed for permanent injunction in the year 1989 but after forcible dispossession by defendants'', suit was amended and relief for restoration of possession was incorporated in the year 1991. Kalla alias Kalyan (D.W. 3) in paragraph 8 of his deposition has clearly stated that possession over the suit land was taken in the year 1991 by the defendants'' after filing of the suit by plaintiff and, therefore, it is held that the defendants'' have forcibly taken possession of the suit land without any authority of law. They (defendants'') failed to establish their claim as regards perfection of title by adverse possession. Accordingly, concurred with the judgment and decree passed by the trial Court decreeing the suit of plaintiff.

It is apposite to state law as regards to acquisition of title by adverse possession as consistently held by the Hon''ble Supreme 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, , in para-11 has observed as under:

In the eye of the 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 the 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 precerio", 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 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 possession and 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 the 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, .

Having perused the concurrent impugned judgments rendered by the Courts below and the material on record, this Court is of the opinion that the Courts below have justifiably recorded comprehensive concurrent findings of fact based on proper appreciation of the evidence on record which are impregnable in nature. The entire gamut of matter is in realm of facts. Under such circumstances, no question of law much less substantial question of law arises warranting interference u/s 100 of the Code.

The appeal sans merit and is dismissed accordingly.