Bhaiyalal vs State of M.P.

Rohit Arya, J.—This appeal by plaintiff is directed against the judgment and decree dated 4/02/2006 in Civil Appeal No. 94A/2005 confirming the judgment and decree dated 05/10/2004 in Civil Suit No. 161A/2003. Plaintiff''s suit for declaration has been dismissed.

Plaintiff filed a suit inter alia contending that though the suit land is a government land, but he is in possession thereof for the last 30 years and, therefore, has perfected title by adverse possession. Apprehending forcible dispossession, plaintiff has brought the instant suit for the aforesaid relief.

Defendant/State filed written statement and denied plaint allegations. Claim of plaintiff to have acquired title by adverse possession has been denied. With the aforesaid pleadings, defendant prayed for dismissed of the suit.

Based upon the aforesaid pleadings, trial court framed issues and allowed the parties to lead evidence. The trial court upon detailed analysis of evidence on record dismissed the suit. It was found that there is no evidence on record to sustain the claim of plaintiff of perfection of title by adverse possession. On appeal, the first appellate court re-appreciated the entire evidence on record and found that plaintiff claims to be in possession over the suit land since the time of his father and the land was being ploughed and crops were being harvested by one servant-Dharma, which is mere an oral submission as neither Dharma has been examined nor any evidence is lead to prove the said fact. The credibility of the claim of plaintiff with reference to evidence led by him has been well discussed by the first appellate court in para 7 to 9 of the impugned judgment. Upon perusal of the documents on record, it has been found that in fact the suit land is recorded as Charnoi land, which was used as a grazing ground for cattle. No evidence is on record to suggest that the suit land was either in possession or control of the plaintiff. The claim of plaintiff that his father has been in possession over the suit land for 10-12 years has been found to be factually incorrect. With the aforesaid findings, the claim of plaintiff of perfection of title by adverse possession alleging possession over the suit land for the last 25-30 years has been found to be absolutely devoid of substance for want of any documentary or oral evidence to sustain the claim. 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. The appeal sans merits is hereby dismissed.