Brajesh Kumar vs State of M.P.

Rohit Arya, J.—This appeal by plaintiff is directed against the judgment and decree dated 23/12/2009 rendered in Civil Appeal No. 19-A/2007 confirming the judgment and decree dated 18/9/2003 in Civil Suit No. 53-A/2002. Plaintiff/appellant''s suit for declaration and permanent injunction has been dismissed.

Plaintiff filed a suit inter alia contending that the suit property is of old survey No. 242 admeasuring 1 bigha 17 biswa in village Khaneta, new survey No. 1512 rakba 0.40 aare. Plaintiff claimed to be in possession of the suit land for last 30 years doing cultivation and harvesting crops, however, due to interference by the respondents/State apprehending forcible dispossession plaintiff is left with no other alternative than to file the instant suit for the aforesaid relief.

Defendants filed written statement and denied the plaint allegations. It is submitted that the suit land has never been in possession of the plaintiff, instead it is a government land. On more than one occasion plaintiff has been dispossessed from the suit land after being issued notices as encroacher. It is denied that the plaintiff is in continuous, uninterrupted and peaceful possession of the suit land to claim title over the same by virtue of being in possession for last 30 years. With the aforesaid pleadings, suit was prayed to be dismissed.

Trial Court, on the basis of aforesaid pleadings, framed issues and allowed the parties to lead evidence. Trial Court on critical evaluation of the evidence on record dismissed the suit. On appeal, the first appellate court re-appreciated the entire evidence on record. The main trust of the argument was that by virtue of the Khasra entry of Samvat 2007, wherein plaintiff''s father''s name is mutated in respect of the suit land, Bhoomiswami right has been transferred upon them. The first appellate court in paras 8 and 11 of the impugned judgment has critically examined the Khasra Panchshala entries brought on record vide Ex. P/1 to P/9 and found in Khasra Panchshala of Samvat 1993, in respect of the suit land in the Bhoomiswami, Khata Khevat No. 12 is written and as an agriculturist name of Mungaram is shown. Land is shown to be Kishmi Padti Kadeem. In Samvat 2007 in column No. 3 both survey Nos. 242 and 248 are recorded in the name of Mungaram, however, in Samvat 2008 the quality of land is shown to be Padti Kadeem. From Samvat 2017 to 2020 plaintiff or his ancestors were not shown to be in possession. From Samvat 2021 to 2022 again no one is shown to be in possession. From Samvat 2023 to 2024 name of Ramcharan s/o Mungaram is shown. Again from Samvat 2026 to 2027 no one''s name is mentioned. From Samvat 2028 to 2031 name of Ratiram s/o Mungaram is shown. Thereafter, as per the evidence on record though the plaintiff was said to be cultivating the land from 1998 to 2002, but at the same time he was found to be an encroacher and was dispossessed many a times. Fine was also imposed. Therefore, on such examination of evidence, it is found that plaintiff cannot be said to be in continuous, uninterrupted and peaceful possession over the suit land, which is a government land, for last 30 years to claim title thereupon.

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, in para 11 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 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,

Having gone through the judgments impugned and record of the case, this Court is of the view that both the Courts below have recorded findings of facts based on due appreciation of evidence on record. Mere stay entries in some Khasra Panchshala will not justify the claim of plaintiff to be in uninterrupted, peaceful and continuous possession over the suit land for last 30 years to claim title by adverse possession. The entire gamut of the matter is in the realm of facts. There is no question of law much less substantial question of law involved in this appeal warranting interference u/s 100 of CPC. The appeal sans merits is hereby dismissed.