Govind vs State of M.P.

Rohit Arya, J.—This appeal by the plaintiffs'' u/s 100 CPC is directed against the concurring judgment and decree dated 27/06/2008 passed in civil appeal No. 36A/2007 by Additional District Judge, Ganj Basoda, District Vidisha affirming the judgment and decree dated 09/07/2007 passed in civil suit No. 34A/2006 by Civil Judge, Class-I, Ganj Basoda, plaintiffs'' suit for declaration and permanent injunction has been dismissed.

Plaintiffs'' have filed a civil suit in respect of agricultural land falling in village Bichhia, Tahsil Nateran, District Vidisha as described in paragraph 3 of the impugned judgment of the first appellate Court whereupon claims to be maurasi krishak since the time of their grand-father and, therefore, from Samvat 2006 (Year 1949), the suit land is of their ownership and possession. More than 20 years go, their grand-passed away, his son and thereafter, the plaintiffs have been in peaceful possession over the suit land, cultivating and harvesting crops. After abolition of zamindari, they acquired status of pakka krishak with effect from 02/10/1951 and after coming into force of Madhya Pradesh Land Revenue Code, 1959 (hereinafter referred to as ''the Code''), they acquired the status of bhumi swami with effect from 02/10/1959. In the alternate, it is submitted that the suit land is in their possession for the last 30 years since 1951; 30 years peaceful, continuous and uninterrupted possession, hence plaintiffs'' claimed title by adverse possession.

Defendant/State filed written statement and denied plaint allegations. It is submitted that neither there is any patta in favour of grand-father of plaintiffs whatsoever by erstwhile zamindar nor the plaintiffs have produced any document granting such patta. The suit land is the ownership and possession of State. It is denied that plaintiffs'' grand-father was a maurasi krishak. It is also denied that plaintiffs'' acquired status of bhumi swami after coming into force of the Code. It is denied that the plaintiffs have been in peaceful, continuous and uninterrupted possession over the suit land. It is submitted that the plaintiffs have set up dual plea as regards their claim that erstwhile zamindar has granted patta and by adverse possession which are mutually contradictory to each other. Under such circumstances, suit deserves to be dismissed.

Based on the aforesaid pleadings, trial Court framed issues and allowed parties to lead evidence. Upon critical evaluation of the evidence on record, trial Court has found that plaintiffs have failed to establish their right and title over the suit land and, therefore, held not entitled for the relief of declaration and permanent injunction, accordingly, the suit is dismissed. On appeal, first appellate Court has again reappreciated the entire oral and documentary evidence on record and it is found that plaintiffs'' have failed to establish either in the pleadings or oral evidence as regards grant of patta in favour of their grand-father by erstwhile zamindar as there is no documentary evidence on record. There is no revenue record produced establishing possession over the suit land for the period claimed by the plaintiff. On the contrary, on the basis of documentary evidence on record, the Court found that the suit land is Government land classified as charnoi land. With the aforesaid findings, first appellate Court affirmed the findings of fact recorded by trial Court.

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, , in para-11 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 evidence on record. The findings are fully justified 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 the appellants/plaintiffs shall not be dispossessed from the suit land except by recourse to the procedure established by law if they are found to be in possession over the suit land or part thereof by the State Government.

Appeal sans merit and is dismissed accordingly.

Certified copy as per rules.