Daulat Singh vs The State of M.P.

Rohit Arya, J.—This appeal by plaintiff u/s 100 of C.P.C. is directed against the concurring judgment and decree dated 25/4/2005 passed by Second Additional District Judge (Fast Track), Ganj Basoda, in Civil Appeal No. 15-A/2005; confirming the judgment and decree dated 6/5/2004 passed by First Civil Judge, Class II, Basoda in Civil Suit No. 102-A/2002. By the impugned judgment and decree the plaintiffs'' suit for declaration and permanent injunction has been dismissed.

The suit property is an agricultural land of village Saloi, Tahsil Basoda, District Vidisha. Plaintiff claims to be in possession over the suit land for last 30 years. The plaintiff asserted the suit property as a Joint Hindu Family Property and claimed to be in possession of the suit land for last 30 years and therefore, he has perfected title by adverse possession over the suit land.

The defendant/State filed written statement and asserted that suit land in fact is a government land and reserved for Charnoi purposes and hence, prayed for dismissal of the suit.

Based on the aforesaid pleadings, the trial Court framed issues and allowed parties to lead evidence and upon critical evaluation of the evidence on record, dismissed the suit.

On appeal, the first appellate Court re-appreciated the oral and documentary evidence on record in para 7 of the impugned judgment and found that no documentary evidence much less revenue record has been brought on record to support the claim of the plaintiff that he is in possession of the suit land since 15/6/1971 except one piece of land that to in the capacity of an encroacher. Hence, plaintiff''s claim as regards continuous, uninterrupted and peaceful possession over the suit land for last 30 years has not been found proved by the first appellate Court. Accordingly the first appellate Court concurring with the findings of the trial Court confirmed the judgment and decree of the trial Court.

Law as regards adverse possession is well settled. 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, .

After having perused the judgments of both the Courts below, this Court is of the view that the entire gamut of matter is in the realm of facts. The findings recorded by both the Courts below are pure findings of facts which in the opinion of this Court do not warrant any interference u/s 100 of CPC. No question of law, much less substantial question of law arises in this appeal. Appeal is therefore, dismissed.