Kadir Ali vs State of M.P.

Rohit Arya, J—This appeal by the plaintiff/appellant under Section 100 of CPC is directed against the judgment and decree dated 14.08.2008 passed in civil appeal No. 44-A/2006 by III Additional District Judge, Siroj, District Vidisha confirming the judgment and decree dated 14.11.06 passed in civil suit No. 134A/99. Plaintiff suit for declaration and permanent injunction has been dismissed.

Facts necessary for disposal of this appeal are in narrow compass: The plaintiff has filed the suit as regards the suit land situated in village Mahoti Patwari, Halka No. 3 Tehsil Latori District Vidisha as described in para 3 of the impugned judgment passed by the first Appellate Court (hereinafter referred to as the suit land). The plaintiff asserted that his father and thereafter, he is in continuous possession over the suit land for the last 35 years, uninterrupted, peaceful and continuous doing cultivation and harvesting crops. As such perfected title by adverse possession. Revenue authorities gave threat for forcible dispossession, hence, the suit has been filed. The defendant/State filed written statement and denied plaint allegations. It is denied that the plaintiff is in possession over the suit land as claimed. The suit is a Charnoi land a Government land. It is submitted that as a matter of fact, action was initiated as per the provisions of Section 248 of the M.P. Revenue Court 1959 against the plaintiff for having encroached upon the suit land. With the aforesaid pleadings defendant/State prayed for dismissal of the suit.

On the aforesaid pleadings the trial Court framed issues and allowed parties to lead evidence. Upon critical evaluation of the entire evidence on record, the trial Court reached conclusion that the plaintiff has failed to prove his continuous, uninterrupted and peaceful possession over the suit land for more than 30 years to claim title by adverse possession. The trial Court has found that the suit land is a Charnoi land, a Government land. Therefore, the plaintiff cannot claim title of the suit land by adverse possession. On appeal, the first appellate Court has again re-appreciated the entire oral and documentary evidence brought on records and found that the plaintiff has failed to establish his continuous, peaceful and uninterrupted possession over the suit land to claim title by adverse possession, for such period. Accordingly, first appellate Court affirming the findings of the trial Court has dismissed the suit of the plaintiff.

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, (2004) 4 SCALE 856 : (2004) 10 SCC 779 : (2004) 1 SCR 255 Supp , in para-11 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. 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, AIR 1964 SC 1254 : (1964) 6 SCR 780 : Parsinni (Dead) by Lrs. and Others Vs. Sukhi and Others, (1993) 5 JT 435 : (1993) 3 SCALE 784 : (1993) 4 SCC 375 : (1993) 2 SCR 315 Supp and D.N. Venkatarayappa and another Vs. State of Karnataka and others, AIR 1997 SC 2930 : (1997) 6 JT 155 : (1997) 4 SCALE 715 : (1997) 7 SCC 567 : (1997) 2 SCR 187 Supp : (1997) 2 UJ 416 : (1997) AIRSCW 2947 : (1997) 6 Supreme 494 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, AIR 1996 SC 869 : AIR 1995 SC 869 : (1995) 8 JT 466 : (1995) 6 SCALE 809 : (1996) 8 SCC 128 : (1995) 6 SCR 41 Supp ."

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 plaintiff has 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 plaintiff. 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 appellant submits that even if the plaintiff/appellant are encroachers, they could be said to be in unauthorised possession over the suit land. Under such circumstances, the plaintiff being landless persons, his 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 plaintiff also.

The aforesaid submission is considered.

The prayer appears to be reasonable and innocuous in nature.

Accordingly, it is hereby directed that the plaintiff/appellant 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 plaintiff/appellant expeditiously by the competent authority of the respondent/State.

Appeal stands disposed of with the aforesaid observation.