Kripal Singh vs Chandan Singh

Rohit Arya, J.—This appeal by plaintiffs u/s 100 CPC is directed against the judgment and decree dated 6/2/2008 in Civil Appeal No. 52-A/2007 confirming the judgment and decree dated 7/7/2007 in Civil Suit No. 6A/2006. Plaintiffs'' suit for declaration and permanent injunction has been dismissed.

Plaintiffs filed the suit inter alia contending that the suit land admeasuring 0.707 hectare falling in survey No. 185/2 (Ga) situated in village Kundol, Tahsil and District Ashoknagar is of their ownership and they are in possession thereof since Samvat 2034 uninterruptedly, peacefully and continuously to the knowledge of the residents of the village as well as the defendant/State, hence, they have acquired title by adverse possession. Defendant no. 1, who claims to have been given Patta by the State Government, in fact and in effect has no right, title or interest over the suit property and is not in possession thereof. Since the plaintiffs apprehended forcible dispossession by defendant no. 2 in collusion with defendant no. 1, the instant suit was filed seeking declaration and permanent injunction.

Defendant no. 1 filed written statement and denied the plaint allegations. It is denied that since Samvat 2034 plaintiffs are in possession of the suit land doing cultivation and harvesting crops thereupon instead it is submitted that defendant no. 1 is in possession of the suit land delivered by the State Government. He has been cultivating the suit land and harvesting crops thereupon. Defendant no. 2/State also filed written statement and denied the plaint allegations. It is denied that plaintiffs are in possession of the suit land since Samvat 2034. It is submitted that the suit land has been given on Patta to defendant no. 1 and possession thereof has been delivered to him, who continues to be in peaceful possession of the suit land. With the aforesaid pleadings defendants no. 1 and 2 prayed for dismissal of the suit.

On aforesaid pleadings, trial court framed issues and allowed the parties to lead evidence. Upon critical evaluation of the evidence on record, trial court dismissed the suit. On appeal, the first appellate court has re-appreciated the entire oral and documentary evidence brought on record. In para 7 and 8 of the impugned judgment it has been observed that the plaintiffs failed to prove their possession over the suit land since Samvat 2034, as claimed, by cogent oral and documentary evidence. Stray entries in Khasra Panchshala in respect of plaintiffs as regards suit land is of no consequence to plaintiffs to claim to have acquired title by adverse possession. As a matter of fact, in most of the Khasra Panchshala filed by plaintiffs, plaintiffs or their father were shown as encroacher of the suit land. With the aforesaid analysis done by the first appellate court, the findings of the trial court were confirmed. Consequently, the judgment and decree passed by the trial court also received the stamp of approval by the first appellate court.

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 u/s 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,

Having gone through the impugned judgment and decree passed by the courts below, this Court is of the view that the courts below have recorded pure findings of facts based on proper appreciation of evidence on record. Findings so recorded are impregnable in nature. 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 u/s 100 of CPC. The Second Appeal sans merits is hereby dismissed.