Bhujbal Singh vs State of M.P.

Rohit Arya, J.—This appeal by plaintiffs is directed against the judgment and decree dated 15/4/2009 in civil appeal No.5A/2009 confirming the judgment and decree dated 16/1/2009 in civil suit No.6A/2008. Plaintiffs suit for declaration and permanent injunction has been dismissed.

Facts necessary for the disposal of this appeal are to the effect that as per plaint averments plaintiff-Bhujbal had four sons, namely, Brijendra Singh, Lokendra Singh, Yogendra Singh and Shailendra Singh. It is averred that different parcels of lands in different Khasra Nos.66, 67, 71 and 72 in village Vais, Patwari Halka No.35, District Vidisha are in possession of plaintiffs doing cultivation harvesting corps thereupon. The aforesaid land was purchased by father of plaintiff-Bhujbal, namely, Kanhaiyalal by oral sale by the then Zamindar of the area in the year 1942 and since then plaintiff was in possession thereof. By virtue of Vahmi Batwara plaintiff- Brijendra Singh was apportioned the land admeasuring 0.199 hectare in Khasra No.66, plaintiff-Lokendra Singh land admeasuring 1.025 hectare in Khasra No.67, (Bhujbal Singh and others Vs. State of M.P.) plaintiff-Yogendra Singh land admeasuring 1.003 hectare in Khasra No.71 and plaintiff-Shailendra Singh land admeasuring 0.282 hectare in Khasra No.72. However, the local Patawari without notice to the plaintiffs illegally changed the land record and described plaintiffs as encroacher over the suit land. It is submitted that as plaintiffs are in possession of the suit land for 50-60 years uninterruptedly, peacefully and continuously, in fact they have acquired title by adverse possession over the suit land and defendant/State has no right to dispossess them from the suit land. However, having apprehension of forcible dispossession instant suit was filed by the plaintiffs.

Defendant/State filed written statement and denied the plaint allegations. It is denied that the plaintiffs are in possession of the suit land for last 50-60 years. It is submitted that in fact plaintiffs had encroached upon the suit land, but have been dispossessed. With the aforesaid pleadings, it was prayed that the suit be dismissed.

On the aforesaid pleadings, trial court framed issues and allowed the parties to lead evidence. Upon comprehensive analysis of evidence on record, trial court (Bhujbal Singh and others Vs. State of M.P.) dismissed the suit. On appeal, the first appellate court re- appreciated the entire oral and documentary evidence on record and found that the plaintiffs failed to establish their possession over the suit land for last 50-60 years. This finding is recorded upon careful consideration of Khasra Panchshala of the various years filed by plaintiffs, as well discussed in para 8 and 9 of the first appellate court''s judgment. That apart, in para 19 the first appellate court further observed that there is no evidence on record that father of plaintiff-Bhujbal, namely, Kanhaiyalal had purchased the suit land in the year 1942 by oral sale by the then Zamindar of the area. There is no evidence available on record that the suit land, after the sale was effected in the year 1942, was ever recorded in the name of Kanhaiyalal in the revenue record. Khasra Panchshala of the year 1952-53, Ex.P/1, was found to be in respect of different Khasra numbers viz.53, 54, 55 and 56, whereas lands in question fall in Khasra No.66, 67, 71 and 72. Likewise, Ex.P/2 is also found to be of no relevance. The first appellate court in para 22 has rightly observed that the suit is filed on 22/9/2007 and reliance is placed upon the Khasra entries of the year 1996-97 to 2000-2001 to claim title by adverse possession and, (Bhujbal Singh and others Vs. State of M.P.) therefore, the claim as made by plaintiffs was found to be de hors the documents on record. With the aforesaid findings based upon the critical analysis of evidence on record the suit was dismissed confirming the findings 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 under Section 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 (Bhujbal Singh and others Vs. State of M.P.) 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:-

"11. 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 (Bhujbal Singh and others Vs. State of M.P.) 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 (Bhujbal Singh and others Vs. State of M.P.) 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, ."

Having gone through the impugned judgment and decree passed by the courts below, this Court is of the view that the courts below have recorded pure findings of facts based on proper appreciation of evidence on record. Findings so recorded are impregnable in nature. 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 under Section 100 of CPC. The Second Appeal sans merits is hereby dismissed.