Janki Bai and Others vs State of M.P.

Rohit Arya, J.—This appeal by the plaintiffs'' under section 100 CPC is directed against the judgment and decree dated 12/11/2008 passed in civil appeal No. 49A/2008 by III Additional District Judge, Vidisha, District Vidisha confirming the judgment and decree dated 13/12/2006 passed in civil suit No. 33A/2006 by III Civil Judge, Class-II, Vidisha, District Vidisha. Plaintiffs'' suit for declaration and permanent injunction has been dismissed.

Suit in relation to agricultural land admeasuring 0.481 hectare falling in survey No. 276 and 0.470 hectare falling in survey No. 277 situated in village Chidoriya, Tahsil and District Vidisha was filed by the plaintiffs''/appellants. It is asserted that the aforesaid suit land is of the ownership and possession of the plaintiffs'' based on oral patta granted in favour of plaintiff No. 1 by one Nazruddin and after abolition of zamindari system, the plaintiffs'' have been in continuous, peaceful and uninterrupted possession over the suit land and doing cultivation and harvesting crops.

2.1 At the same time, it is submitted that by virtue of long possession, title over the suit land is claimed on the basis of adverse possession. As such, perfected title by adverse possession against the respondent/State. Hence, having apprehending forcible dispossession therefrom, instant suit has been filed.

Defendant/State filed written statement and denied plaint allegations. With the aforesaid pleadings, defendant/State prayed for dismissal of the suit.

On the aforesaid pleadings, trial Court framed issues and allowed parties to lead evidence. Upon critical evaluation of the entire evidence on record, trial Court has dismissed the suit. On appeal, first appellate Court has again reexamined the entire oral and documentary evidence brought on record and found that the plaintiffs'' have failed to establish their continuous, peaceful and uninterrupted possession over the suit land to claim title by adverse possession for such period. Accordingly, first appellate Court affirmed the findings of the trial Court and dismissed the suit of the plaintiffs''.

Law as regards 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, has observed as under :

"11. 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. Nonuse 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 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, : 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, ." 6. 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 recorded pure findings of fact based on proper appreciation of the entire evidence on record that the plaintiffs'' have failed to establish continuous, peaceful and uninterrupted possession over the suit land as claimed. As such, both the Courts below are fully justified in dismissing the suit of plaintiffs''. Findings so recorded are 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 under section 100 CPC.

At this stage, counsel for the appellants'' submits that even if the plaintiffs''/appellants'' are encroachers, they could be said to be in unauthorised possession over the suit land. Under such circumstances, the plaintiffs'' being landless persons, their claim may be ordered to be considered in the light of provisions contained under section 162 of the Madhya Pradesh Land Revenue Code, 1959 as amended vide Madhya Pradesh Bill No. 19 of 2013 as the Madhya Pradesh Land Revenue Code (Amendment) Act, 2013, published in the Madhya Pradesh Gazette dated 11/07/2013 which reads as under:

"162. Disposal of certain land in unauthorised possession.- (1) Notwithstanding anything contained in Section 248 and subject to rules made in this behalf, any land belonging to the State Government in such areas as notified in the official Gazette by the State Government, which is in unauthorised possession, shall be disposed of for agricultural and residential purposes, in government lessee rights by the Collector to such extent and on payment of such amount of premium and lease rent as may be prescribed.

(2) If any land is disposed of under subsection (1), all proceedings pending in any revenue court under section 248 in respect of such land shall stand abated".

It is submitted that in the area where the suit land is situated, several persons have been extended the benefit of the aforesaid provision of the Code, 1959 by the respondent/State in the matter of grant of lease rights. Hence, it is prayed that same treatment may be extended to the plaintiffs'' also.

The aforesaid submission is considered.

The prayer appears to be reasonable and innocuous in nature.

Accordingly, it is hereby directed that the plaintiffs''/appellants'' claim shall be considered in the light of the provisions as contained under section 162 of the Code, 1959 as amended referred to above on its own merits, in accordance with law and decide the same with due notice to the plaintiffs''/appellants'' expeditiously by the competent authority of the respondent/State.

Appeal stands disposed of with the aforesaid observation.