Laxman Singh vs State of M.P.

Rohit Arya, J.—This appeal by the plaintiff u/s 100 CPC is directed against the concurring judgment and decree dated 26/09/2007 passed in civil appeal No. 61A/2006 by District Judge, Vidisha District Vidisha confirming the judgment and decree dated 28/03/2006 passed in civil suit No. 5A/2005 by Civil Judge, Class-II, Kurwai, District Vidisha. Plaintiff''s suit for declaration and permanent injunction has been dismissed.

Plaintiff has filed the suit in respect of the suit land situated in village Jhagar, Tahsil Kurwai, District Vidisha as described in paragraph 1 of the impugned judgment of the first appellate Court (hereinafter referred to as ''the suit land''). Plaintiff asserted that he is in 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. He had filed an application before the Sub Divisional Officer (Revenue), Kurwai for mutation in respect of the suit land u/s 57(2) of the Madhya Pradesh Land Revenue Code, 1959 (hereinafter referred to as ''the Code''), however the same has been rejected by an order dated 19/11/2001. Hence, apprehending forcible dispossession, instant suit has been filed.

Defendant/State filed written statement and denied plaint allegations. It is denied that the plaintiff is in possession over the suit land. As a matter of fact, action was initiated as per the provisions of section 248 of the Code against the plaintiff for having encroached upon the suit land. Encroachment has been removed and he is no more in possession. He was also punished with fine as per provisions of section 248 of the Code. 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 reappreciated the entire oral and documentary evidence brought on record and examined the claim of the plaintiff as regards continuous, uninterrupted and peaceful possession for the last 35 years over the suit land. First appellate Court observed that the oral evidence led by the plaintiff suffers from inherent contradictions and inconsistencies, particularly; P.W. 2 Khilan Singh does not know whether the suit land is Government land or not. He has further stated that earlier the suit land was ploughed by one Jaswant Singh but he was not sure in which year Jaswant Singh was cultivating the suit land. As regards documentary evidence, exhibits P/2 to P/10, it is observed that in khasra panchshala (exhibit P/2) from the year 1966-67 to 1968-69, the suit land shown as reserved for charnoi and the name of father of plaintiff has been shown to be an encroacher, in survey Nos. 50 and 58, however, no possession is shown survey No. 57. Exhibit P/3, khasra panchshala of Samvat 2025 (year 1968), the possession of Gangaram was shown in survey No. 58, but not in survey Nos. 50 and 57. Exhibit P/4 khasra panchshala from the years 1970-71 to 1973-74 and Exhibit P/5 khasra panchshala from the years 1973-74 to 1974--75, the name of Gangaram was shown as an encroacher in survey No. 58 and his name was not mentioned in the remaining survey numbers. Likewise, Exhibit P/6 khasra panchshala from the years 1975-76 to 1979-80, the possession of plaintiff was shown in survey numbers 50 and 58 but there is no mention of survey number 57. Likewise, in the remaining exhibits P/7 to P/10 well-discussed in paragraph 12 of the impugned judgment by the first appellate Court. First appellate Court has also discussed the order passed by the Sub Divisional Officer dated 19/11/2001 wherein plaintiff was shown to be in possession for some years but as an encroacher. Defendant/State has dispossessed the plaintiff from the suit land in the year 1979-80 in case No. 442/A-68/79-80. Suit land is reserved as charnoi land being used for Nistar purposes. Upon such discussion of the entire oral and documentary evidence on record, the first appellate Court found that the plaintiff has failed to establish his continuous, uninterrupted and peaceful possession over the suit land for more than 30 years for perfection of title by adverse possession. Accordingly, concurred with the findings recorded by the trial Court in that behalf and dismissed the suit.

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. 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, : 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, "

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 and dismissed the suit. 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 u/s 100 of the Code.

However, before parting with the appeal, it is considered apposite to observe if the defendant/State finds that the plaintiff/appellant is in possession over the suit land or part thereof, the plaintiff cannot be dispossessed except by recourse to the procedure established by law.

Appeal sans merit and is dismissed accordingly.