Bhagwan Singh vs State of M.P.

Rohit Arya, J.—This appeal by the plaintiff u/s 100 CPC is directed against the concurring judgment and decree dated 27/06/2007 passed in civil appeal No. 44A/2006 by District Judge, Vidisha District Vidisha affirming the judgment and decree dated 28/02/2006 passed in civil suit No. 118A/2005 by Civil Judge, Class-I, Vidisha, plaintiff''s suit for declaration and permanent injunction has been dismissed.

Plaintiff filed the instant suit inter alia pleading that an agricultural land admeasuring 2.000 hectare falling in survey No. 446/3 situated in village Balabarkhed, Tahsil and District Vidisha (hereinafter referred to as ''the suit land'') for the last 40 years since time of his ancestors to the knowledge of the State Government peaceful, continuous and uninterrupted possession over the suit land. During this period, appellant''s possession has never been questioned or dispossessed by the defendant/State. As such, perfected title by adverse possession. However, having apprehended forcible dispossession on 30/08/1992, filed the suit.

Defendant/State filed written statement and denied plaint allegations inter alia submitting that plaintiff was an encroahcer and has been dispossessed from the suit land. As per Government policy in vogue, suit land has been granted on patta to landless persons and they are continued to be in possession doing cultivation and harvesting crops. It is specifically denied that plaintiff has ever been in possession over the suit land. With the aforesaid pleadings, defendant/State prayed for dismissal of the suit.

On the aforesaid pleadings, trial Court framed issues and allowed parties to lead evidence. Upon critical evaluation of the entire evidence on record has recorded comprehensive findings of fact and dismissed the suit. On appeal, first appellate Court has again reappreciated the entire oral and documentary evidence on record to analyse the assertion of the plaintiff as regards claim of the plaintiff that he has been in possession over the suit land for the last 40 years. The revenue record is well-discussed in paragraphs 11 and 12 of the impugned judgment by the first appellate Court wherein it is found that barring stray entries right from the beginning, the plaintiff''s name is not either shown or recorded as an encroacher. As such, plaintiff has not been found to be in peaceful, continuous and uninterrupted possession over the suit land for the last 40 years, much less, statutory period to claim adverse possession, i.e., 30 years in terms of Article 112 of the Limitation Act, 1963 instead the suit land has been recorded as Government land for charnoi purposes. With the aforesaid findings, first appellate Court affirmed the findings of fact recorded by trial Court and dismissed the suit.

It is apposite to state law as regards adverse possession is well settled.

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 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 gone through the concurrent impugned judgments rendered by the Courts below and the record of the case, this Court is of the opinion that both the Courts below have properly appreciated the entire evidence on record and dismissed the suit. The findings of both the Courts below are fully justified in dismissing the suit of plaintiff and impregnable in nature. The entire gamut of matter is in realm of facts. No question of law, much less substantial question of law arises warranting interference u/s 100 of the Code.

However, before parting with the appeal, it is considered apposite to observe that if the defendant/State finds that the plaintiff/appellant is in possession over the suit land or part thereof, he cannot be dispossessed except by recourse to the procedure established by law.

Appeal sans merit and is dismissed accordingly.

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