Lali Devi and Others vs Tilak Sao and Others

Mungeshwar Sahoo, J.—The plaintiffs-respondents-appellants have filed this Second Appeal against the judgment and decree dated 15.02.1991 passed by the learned 2nd Additional District Judge, Patna in Title Appeal No. 51 of 1987 whereby the learned Lower Appellate Court allowed the appeal and set aside the judgment and decree of the trial court dated 27.04.1987 passed by the learned Munsif, Danapur in Title Suit No. 37 of 1981. The original plaintiff filed the aforesaid suit for declaration that the defendants or the public at large have not got any right to interfere with the possession of his 2 decimals of land of Municipal Holding No. 101 which is towards east of his residential house. The plaintiff further prayed for permanent injunction restraining the defendants from interfering with the possession of the plaintiff and further for directing defendant Nos. 1 and 2 to remove the encroachment made by them over municipal land known as Mainagarh Gali which is adjacent east of Holding No. 101 and west of Holding No. 102 and the house of defendant Nos. 1 and 2 is on Holding No. 102.

The plaintiff claimed the aforesaid relief alleging that the disputed land measuring 2 decimals is the portion of Holding No. 101. The said 2 decimals is still vacant which is just towards east of the plaintiffs house. After that land, there is a lane going from north to south used by public at large. The lane is known as Mainagarh Gali. The defendant Nos. 1 and 2 have their house on Holding No. 102. They encroached the Mainagarh Gali for which a land encroachment case was initiated and ultimately order was passed on 31.01.1977 whereby the defendant Nos. 1 and 2 were directed to remove the encroachment. The construction made by them was demolished but the debris thereof remained there as a result of which, the public were facing difficulty in passing through the lane. Therefore, they started using the vacant land measuring 2 decimals of the plaintiff in Holding No. 101. The plaintiff obtained a sanction plan for construction over the land but he felt difficulty to construct on his vacant land measuring 2 decimals. The defendants have made a hut at the spot where the debris was existing. The suit was filed in the representative capacity under Order 1 Rule 8 C.P.C.

The defendant Nos. 1, 2 and 8 to 12 contested the suit. According to them, the plaintiff wants to forcibly occupy the suit land which is Gairmajarua land and is being used as Rasta by the public at large since long. The house of defendant Nos. 1 and 2 is on Holding No. 102. The plaintiff has encroached the land as a result of which, the lane has become very narrow and the people are facing difficulty in passing through the lane.

The trial court recorded a finding that the defendant Nos. 1 and 2 have encroached over the Gali which is east of the vacant land forming eastern part of Holding No. 101 of the plaintiff. Two decimals land in between Mainagarh Gali and Holding No. 101 is in possession of the plaintiff and accordingly, decreed the plaintiffs suit. The public in general were restrained permanently from going over the land of the plaintiff. The defendant Nos. 1 and 2 were directed to remove the hut and encroachment from the Mainagarh Gali.

The defendants then filed title appeal before the Lower Appellate Court. The Lower Appellate Court after appreciating the materials recorded the finding that the plaintiff has not brought a single chit of paper to show his title on Holding No. 101 nor any chit of paper to show that alleged vacant land measuring 2 decimals is part of Holding No. 101. The Lower Appellate Court recorded that the encroachment by defendant in the municipal land known as Mainagarh Gali is not established either by evidence or document. The Lower Appellate Court also recorded a finding that "unless one''s title is looked into there will be no absolute possession as possession flows from title" and the plaintiff is not claiming title over Holding No. 101. Accordingly, the Lower Appellate Court allowed the appeal and set aside the judgment and decree of the trial court.

At the time of admission on 04.09.1991, the following substantial questions of law were formulated:

I. Whether the appellate court resorted to correct legal approach in dismissing the suit of the plaintiff by observing "to my view unless one''s title is looked into, there will be no absolute possession, as possession flows from title?

II. Whether the plaintiff was entitled to the suit being decreed on the basis of possessory title acquired by being in adverse possession?

III. Whether the appellate court has acted legally in reversing the judgment of the trial court?

The learned counsel, Mr. Yogendra Mishra appearing on behalf of the appellants submitted that the Lower Appellate Court has wrongly observed that unless title is proved, the finding of possession cannot be recorded and that is the main ground upon which the plaintiffs relief for injunction has been refused by the Lower Appellate Court. The learned counsel for the appellants submitted that even if there is no title of the plaintiff if he is in possession of the property, he is entitled for protection of his possession and on the ground of his possession, injunction can be granted restraining the defendants or the public at large. The learned counsel further submitted that the plaintiff was in possession of the property i.e. 2 decimals vacant land, therefore, even if he has not prayed for declaration of title but then his possession become adverse as such, he had acquired possessory title over the property but the Lower Appellate Court did not consider this aspect of the matter. Without considering these aspects of the matter, the Lower Appellate Court has reversed the judgment of the trial court, therefore, the judgment of the Lower Appellate Court is illegal. In support of his contention, the learned counsel relied upon 3 decisions. Out of 3 decisions, two decisions are Rame Gowda (D) by Lrs. Vs. M. Varadappa Naidu (D) by Lrs. and Another, and M. Kallappa Setty Vs. M.V. Lakshminarayana Rao, ). In both the decisions, the Hon''ble Supreme Court has held that on the basis of possession, the plaintiff is entitled for the grant of injunction. The third decision i.e. Brij Bhukan Kalwar and Others Vs. S.D.O. Siwan and Others, Full Bench has been cited in support of the contention that even on public land, one can acquire the title by adverse possession. On these grounds and on the strength of the aforesaid decisions, the learned counsel submitted that all the substantial questions of law formulated at the time of admission be answered in favour of the appellants and the plaintiffs suit be decreed.

On the other hand, the learned counsel appearing on behalf of the respondent No. 3 submitted that the suit has been filed by the plaintiff in representative capacity and injunction has been prayed for against the public at large. The defendants have appeared and filed contesting written statement to the effect that 2 decimals vacant land is not part of Holding No. 101 where the house of the appellant is situated rather it is the public lane. The learned counsel further submitted that the municipality was made defendant in the suit but in the appeal, the name of the municipality has been struck down by the appellants. According to the learned counsel, the plaintiff has not prayed for declaration of title and no evidence has been adduced in support of the fact that in fact, 2 decimals vacant land is the part of Holding No. 101. The Lower Appellate Court categorically recorded the finding that the defendants have not encroached the public lane commonly known as Mainagarh Gali. So far this finding is concerned, it is pure finding of fact. The plaintiff has never prayed for declaration of his title on the basis of adverse possession. Now, therefore, on the basis of adverse possession, the relief cannot be granted to the plaintiff particularly when it cannot be said that the plaintiff is in exclusive possession of the public lane as it is his specific case that the public are using that land as Gali. So far the substantial questions of law formulated are concerned, those are not at all substantial questions of law and does not involve in this Second Appeal for consideration. Therefore, the Second Appeal is liable to be dismissed with cost.

It is the specific case of the plaintiff that the disputed land measuring 2 decimals which is vacant is part of Holding No. 101. Written statement was filed to the effect that the said land is public land and is used as lane. The specific case of the plaintiff is also that because the defendant has encroached the public lane, the public are now utilizing the vacant land causing inconvenience to the plaintiff and when he intended to make construction he was not allowed on the ground that it is public land. On the basis of the evidence available on record, the Lower Appellate Court categorically found that the plaintiff failed to prove that the vacant land measuring 2 decimals is part of Holding No. 101. Now, if it is not a part of Holding No. 101 then the only other case is that it is public lane because the Lower Appellate Court has recorded categorical finding that the defendants have not encroached public lane. If it is public lane then the question is whether it can be said that the plaintiff is in exclusive possession of the property particularly when it is his specific pleading itself that the public are utilizing the same as lane and it is the pleading and evidence of the defendant also.

From perusal of the judgment of the Lower Appellate Court, it appears that the Lower Appellate Court has considered the evidences produced by the parties and categorically recorded the finding in paragraph 9 at page 6 to the effect that the plaintiff has not brought a single chit of paper about his title of Holding No. 101 nor any chit of paper to show that alleged vacant land in the east of his house and west of municipal lane is part of Holding No. 101. Ultimately, at the end of paragraph 9, the Lower Appellate Court considering all the materials came to the conclusion that alleged encroachment by the defendant in the municipal lane popularly known as Mainagarh Gali is not established either by evidence or document. It appears that the trial court on the basis of some orders passed by the executive authorities held that the defendants have encroached the Gali, therefore, the Lower Appellate Court observed that only on the basis of some executive orders produced by the plaintiff it cannot be said that the defendants have in fact, encroached the Gali. The Lower Appellate Court also observed that no report of survey knowing Pleader Commissioner was produced to show that any encroachment was made.

Admittedly, the plaintiff is not praying for declaration of his title. The Lower Appellate Court categorically recorded the finding that the plaintiff failed to prove that the suit land is part of Holding No. 101. In such view of the matter, in my opinion, there is no error in the observation of the Lower Appellate Court to the effect that "to my view, unless one''s title is looked into there is no absolute possession, as possession flows from title." It is settled principles of law that possession follows title. Here, the plaintiff is claiming exclusive possession on the public lane without praying for declaration of title. The finding is that plaintiff failed to prove title and also failed to prove exclusive possession. Now, therefore, can it be said that he is entitled for injunction in view of the decisions relied upon by the learned counsel for the appellants.

As stated above, in the decisions of the Hon''ble Supreme Court M. Kallappa Setty Vs. M.V. Lakshminarayana Rao, and Rame Gowda (D) by Lrs. Vs. M. Varadappa Naidu (D) by Lrs. and Another, the Hon''ble Supreme Court has held that even if the parties failed to prove title then also the plaintiff who is in possession is entitled to protect his possession and injunction can be granted. So far these decisions are concerned, are the settled principles of law. In these decisions, the finding was recorded by the courts below to the effect that the plaintiff was in possession of the property. It further appears that the property involved was not the public property.

So far Rame Gowda (D) by Lrs. Vs. M. Varadappa Naidu (D) by Lrs. and Another, is concerned, it appears that in that case at paragraph 3, the Hon''ble Supreme Court found that the suit property was in possession of the plaintiff and likewise, in the case of M. Kallappa Setty Vs. M.V. Lakshminarayana Rao, at paragraph 5, the Hon''ble Supreme Court found that the trial court as well as the Appellate Court found that the plaintiff was in possession of the suit site. In the present case, the case is otherwise. As stated above, the suit property is public lane. Now can it be said that the plaintiff is in exclusive possession when it is used by the public.

So far the Full Bench decision of Patna High Court relied upon by the appellants is concerned, is also a settled principle of law to the effect that one can acquire title by adverse possession on the public land. The plaintiff never prayed for declaration of title on the basis of adverse possession. Moreover, unless he proves that he is in exclusive possession of the property since more than 12 years with animus possidendi, no relief can be granted in favour of the plaintiff. For constituting adverse possession, there must not only be intention to possess the property but there must also be intention to dispossess the real owner as has been held by the Hon''ble Supreme Court in the case of P.T. Munichikkanna Reddy and Others Vs. Revamma and Others,

In the case of Mandal Revenue Officer Vs. Goundla Venkaiah and Another, , Hon''ble Supreme Court has held that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, court is duty bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State to immovable property and give upper hand to the encroachers, unauthorized occupants or land grabbers.

In view of the finding of the Lower Appellate Court to the effect that the plaintiff has failed to prove that the suit land is part of Holding No. 101, there is no prima facie case in favour of the plaintiff. Since the plaintiff failed to prove that it is part of Holding No. 101, the only other claim of the defendant is that it is the public lane. Therefore, the balance of convenience is also not in favour of the plaintiff. On the contrary, if injunction is granted restraining the public at large to use the public lane, it will amount to deny the right to the public which will cause great hardship to them and it will give upper hand to the plaintiff who is trying to make construction on public lane.

In view of the above discussion, in my opinion, only because the Lower Appellate Court has observed that "to my view, unless one''s title is looked into there will be no absolute possession, as possession flows from title" the judgment of the Lower Appellate Court cannot be said to be vitiated. As such, the substantial question No. 1 formulated at the time of admission is answered in favour of the respondents and against the appellants.

So far substantial question of law No. 2 is concerned, the plaintiff gave much emphasis on possessory title. It may be mentioned here that no prayer for declaration of title on the basis of possession was made. Moreover, since it is public lane used by the public at large, his exclusive possession cannot be declared. Therefore, there is no question of adverse possession arises. In view of the above discussion, this substantial question of law is also answered against the appellants.

So far substantial question of law No. 3 is concerned, it is not at all a substantial question of law because the Appellate Court has the jurisdiction to independently appreciate the evidence and assign independent reasonings for its finding and has the jurisdiction to reverse the judgment of the trial court. Therefore, this substantial question of law is also answered against the appellants. In the result, this Second Appeal is dismissed. In the facts and circumstances of the case, there shall be no order as to cost.