Jamuna Prasad vs State of M.P. and Others

Rohit Arya, J.—Heard on the question of admission.

The instant appeal by appellant/plaintiff under Section 100 of C.P.C. is directed against the concurring judgment and decree dated 31/7/2006 passed by Second Additional District Judge (Fast Track Court), Ganj Basoad (M.P.) in Civil Appeal No. 3-A/2006 confirming the judgment and decree dated 11/5/2000 passed by Civil Judge, Class-I, Ganj Basoda in Civil Suit No. 601-A/1994. Plaintiff''s suit for declaration and permanent injunction was dismissed by the trial Court.

Plaintiff had claimed to be in possession of the suit land detailed and described in para 2 of the appellate judgment since Samwat 2005. It is asserted that the suit land was of Zamindari Patta in his father''s name. His father died in Samwat 2023. The suit land continued to be in the name of father of plaintiff up to Samwat 2014. Thereafter, his name was deleted and name of State Government was substituted in revenue record. With aforesaid pleadings, plaintiff claimed to be in possession of the suit land for last 30 years peacefully, uninterruptedly and continuously to the exclusion of the State Government. As such the plaintiff acquired title by adverse possession.

Respondent/State filed written statement denying the plaint allegation. It is inter alia submitted that after abolition of Zamindari, suit land, a padat land stood transferred to the State Government. It is denied that plaintiff or his father was ever in possession of the suit land as alleged. The claim of plaintiff of continuous, uninterruptedly and peaceful possession over the suit land for last 30 years and on the basis of said adverse possession perfection of title has also been specifically denied. Besides, it is submitted that in view of Section 51 of M.P. Land Revenue Code, suit was barred.

Trial Court on the basis of aforesaid pleading of the parties, framed issues and allowed parties to lead evidence. Upon critical evaluation of the oral and documentary evidence on record, trial Court dismissed the suit.

On appeal, first appellate Court confirming the findings of the trial Court. On second appeal before this Court being S.A. No. 36/2002, which was decided on 28 March, 2006, matter was remanded back to first appellate Court to ascertain as to under what circumstances, word Beed has been deleted and the words Tili and Chana have been mentioned in Khasra Panchshala of Samwat, 2007. First appellate Court upon remand by the impugned judgment and decree has re-appreciated the entire evidence in para 8 to 10. It is come on record that upon remand, the original record of Samwat 2007 were requisitioned; however, the Government Advocate informed in writing before the Court that relevant record of Samwat 2007 has been destroyed as per rules and therefore, the original record cannot be produced in the Court. As such, in absence thereof, the first appellate Court was not in a position to ascertain as to under what circumstances the word Beed has been deleted and words Tili and Chana have been mentioned. However, first appellate Court has discussed other relevant evidence like certified copy of khasra of Samwat 2007 said to have been obtained by the plaintiff in year 1979 and the same continued to be in possession of plaintiff even up to presentation of the suit in the year 1994. The first appellate Court has found that possibility of manipulation being done with the aforesaid document cannot be ruled out for the reasons that if the plaintiff had obtained the certified copy of the aforesaid document after filing of the suit the actual extract thereof could have been tested. Besides, the plaintiff has at no point of time ever objected before the revenue authorities as regard cutting and overwriting in the revenue records of the said period in column Nos. 22 and 23 at the time of obtaining certified copy of the said document. That was not done. Therefore, under such circumstances, first appellate Court concluded that originally the word Beed was written in the column Nos. 22 and 23 which was after obtaining certified copy of the order was substituted by words Tili and Chanda. That apart, claim of adverse possession has also not been found proved by the Court below.

Law as regards adverse possession is well settled 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, ." 11. 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 under Section 100 of CPC. No question of law, much less substantial question of law arises in this appeal. Appeal is therefore, dismissed.