Jagdish Prasad vs Ramdatt and Others

Rohit Arya, J.—This appeal by plaintiff is directed against the common judgment and decree dated 24/12/2005 passed in civil appeal No. 14A/2005 preferred by the defendant and civil appeal No. 17A/2005 preferred by the plaintiff.

The facts relevant and on record necessary for disposal of the appeal are to the effect that plaintiff-Jagdish filed a suit for declaration and permanent injunction as regards the suit land; a piece of agricultural land falling in survey No. 79 situated in village Madha, Tahsil Mauganj, District Rewa, to the effect that Rambharosha transferred the suit land out of his share (1/2), i.e.71.5 decimal out of 2.86 acre, to the plaintiff for a consideration of Rs. 77.50/- by way of simple sale note and delivered the possession. Remaining half portion of the aforesaid land, defendant No. 2-Jograj had sold to one Sant Prasad and delivered the possession. Accordingly, mutation was done vide order dated 8/6/1982, but with ulterior motive Jograj had challenged the aforesaid order of mutation by filing an appeal. The appeal upon consideration was allowed and remanded the matter back to the Tahsildar for decision afresh. Consequently, by order dated 29/2/1987 the Tahsildar had cancelled the mutation. Resultantly, having apprehension of being forcibly dispossessed on 30/6/1987, the plaintiff filed the instant suit for declaration and permanent injunction restraining the defendants from interfering with the possession of the plaintiff. Plaintiff also claimed, in the alternative, title to the suit land by adverse possession asserting possession over the suit land for more than 12 years.

Written statement was filed by defendants Jograj and Bhagwat. It was denied that Rambharosha had transferred the suit land in favour of plaintiff by way of alleged sale note. It is further denied that Rambharosha delivered the possession of the suit land to the plaintiff and explained by filing the map that the suit land is not in possession of the plaintiff. The alleged mutation in the year 1982 was illegal and the same was cancelled by the appellate authority. Resultantly, mutation in favour of plaintiff was cancelled by Tahsildar on 29/2/1987. One more relevant fact as regards false claim of the plaintiff was also stated to the effect that in the application dated 31/10/1984 the plaintiff had claimed mutation for 77 decimal agricultural land, whereas in the suit the claim made is that of 71.5 decimal land. In fact mischief was played by uncle of the plaintiff, namely, Kedarnath in fabricating the sale note wherein tall claim of title is made by the plaintiff and made basis for filing the instant suit. In fact a complaint for the alleged mischief was made against Kedarnath, upon which criminal prosecution was launched and he was convicted. With the aforesaid pleadings, suit based on false and fabricated facts was prayed to be dismissed.

The trial court framed issues and allowed parties to lead evidence. The trial court found plaintiff failed to prove title of the suit land either on the basis of alleged sale note or by adverse possession as plaintiff was not found to be in uninterrupted, peaceful and continuous possession of the suit land for 12 years hostile to Rambharosha or defendants justifying the aforesaid assertion of perfection of title by adverse possession. However, the trial court found the plaintiff to be in possession of 1/4th part of the total area of land i.e.2.86 acres of survey No. 79 and, therefore, decreed the suit to the extent of injunction against dispossession.

Plaintiff-Jagdish filed civil appeal No. 17A/2005 questioning the judgment and decree passed by the trial court dismissing the suit for declaration of title and permanent injunction on the entire area of the land inter alia contending that the trial court did not appreciate the oral and documentary evidence brought on record and failed to take note of the fact that since the year 1956-57 i.e. much prior to coming into force of M.P. Land Revenue Code, 1959, the plaintiff was in possession of the suit land and by virtue of continuity of possession, in 1968 plaintiff acquired title by adverse possession.

Civil Appeal No. 14-A/2005 was filed by defendant-Jograj challenging part of the judgment and decree passed by the trial court to the effect restraining the defendants by permanent injunction over 1/4th portion of the total area of 2.86 acres of survey No. 79 inter alia contending that there is no documentary evidence on record to justify possession of the plaintiff over the part of the suit land. The specific denial in that behalf besides revenue receipts and the revenue records, wherein name of defendant is mutated, reveal that plaintiff is not in possession of the suit land and finding in that behalf was perverse.

Both the appeals were heard analogously by the first appellate court and decided by the impugned judgment and decree dated 24/12/2005. The first appellate court in paras 10 to 16 of the impugned judgment has exhaustively dealt with the oral and documentary evidence on record. It has been found that the assertion of plaintiff as regards possession of the suit land based on mutation order dated 8/6/1982 in fact was set aside by the appellate authority vide order dated 26/5/1984, Ex. D/9, and thereafter on remand, the mutation was cancelled by the Tahsildar vide order dated 29/1/1986, Ex. D/8. As such, the aforesaid claim based on mutation was found to be devoid of substance and contrary to record. Further, the first appellate court has further found that the alleged claim of title to suit land is based on the sale note dated 27/7/1956, but curiously enough since 1956 till 1982 the alleged sale note did not see the light of the day and was never produced before the revenue authorities for taking the claim of mutation: more than 25 years'' period has passed by. This by itself shows that the aforesaid alleged document is a suspicious document and prepared to manage the mutation in the year 1982 though the same was set aside vide order dated 12/6/1984, Ex. D/9, by the appellate court and ultimately the mutation was cancelled on 29/1/1986, Ex. D/8. That apart, none of the witnesses to the alleged sale note was examined. Even the witness examined by the plaintiff had no knowledge about the subject matter of sale and the consideration paid for the sale. On critical evaluation of oral evidence on record, the first appellate court has found that plaintiff is not in possession of the suit land, as well discussed in paras 12 to 14 of the impugned judgment. The first appellate court has also addressed upon the assertion of claim of title by adverse possession and has found that plaintiff failed to establish the fact by oral and documentary evidence as regards uninterrupted, peaceful and continuous possession of the suit land for 12 years. Resultantly, the first appellate court dismissed the appeal.

Before this Court learned counsel for the appellant has assailed the impugned judgment and decree passed by the trial court as well as first appellate court contending that by virtue of oral sale both the courts below ought to have declared the plaintiff having title over the suit land and relied upon the judgment of the coordinate Bench of this Court in Smt. Chanda Bai and Another Vs. Anwarkhan and Others, . Learned counsel also criticized the impugned judgment and decree inter alia contending that even otherwise both the courts below failed to appreciate the evidence on record as regards perfection of title by adverse possession. Learned counsel has made a claim of title over the suit land by virtue of alleged sale note and at the same time by virtue of adverse possession.

Both pleadings are mutually destructive and cannot be countenanced for the reason that once the plaintiff claims title over the suit land by virtue of alleged sale note and possession based thereupon, further claim for title by adverse possession is patently illegal and unsustainable in the eyes of law. As a matter of fact, both the courts below have dealt with the issue of the claim on the basis of alleged sale note and found that none of the persons witness to the sale have been examined. The sale is not found proved for the reason that though the same is claimed to be of the year 1956, but upto 1982 the alleged sale note did not come on surface and after 25 years was used for mutation proceedings in the year 1982, which stood cancelled on 29/1/986, Ex. D/8. Even the witnesses examined in support of the aforesaid sale had no knowledge as regards the contents of sale note, consideration paid and area of the land allegedly transferred vide sale note. As such, for want of documentary as well as oral evidence, the oral sale based on the sale note was not found proved by both the courts below, upon due appreciation of evidence on record. As such, Findings of facts recorded in that behalf are concurring in nature and are not pregnable.

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 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 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, ." 14. Having gone through the judgment and decree impugned, this Court is of the view that both the courts below have recorded pure findings of facts based on proper appreciation of 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 under Section 100 CPC. Looking to the factual matrix of the case in hand and findings recorded by the courts below, the judgment cited by learned counsel for appellant is distinguishable on facts and is of no assistance of the appellant. Accordingly, the second appeal sans merits and is hereby dismissed.