Laxmi Devi vs State of M.P.

Rohit Arya, J.—This appeal by plaintiffs is directed against the judgment and decree dated 21/4/2004 in Civil Appeal No. 53-A/2012 confirming the judgment and decree dated 31/10/2012 in Civil Suit No. 14-A/2011. Plaintiffs'' suit for declaration and permanent injunction has been dismissed.

Plaintiffs filed a suit inter alia contending that the suit plot admeasuring 125X125 sq. ft. is part of survey No. 239/2 Rakba 0.721 hectare situated in village Krishnaganj, Tahsil Pohari, District Shivpuri. The aforesaid land as per the order of Tahsildar, Pohari dated 31/7/1963 in case No. 1/62-63X113 was found to be of Bhoomiswami rights of Adarsh Seva Sangh and accordingly, the revenue records were corrected. Thereafter, Adarsh Seva Sangh, Pohari by its resolution No. 13 dated 8/9/1979 had transferred the aforesaid land to the father of plaintiffs. As such, during the lifetime of plaintiffs'' father and after his death the aforesaid land has all along been in possession of plaintiffs. A civil suit No. 1A/1987 was also filed by plaintiffs'' father during his lifetime against defendants for permanent injunction. The same was decreed. Appeal filed therefrom was also dismissed. As such, since 1979 plaintiffs are in uninterrupted, peaceful and continuous possession over the suit land hostile to the defendants. As such, plaintiffs have acquired title by adverse possession in the year 2009. With the aforesaid pleadings, plaintiffs filed a suit for declaration and permanent injunction against the defendants.

Defendants no. 1 and 2 did not file any written statement. Defendant no. 3 filed written statement and denied the plaint allegations to the effect that the suit land is of its ownership. It is denied that in the year 1979 the suit land was transferred to father of plaintiffs or plaintiffs are in possession thereof. As a matter of fact against the decree passed in civil suit No. 1A/1987 appeal is still pending under consideration before the High Court, Bench Gwalior, hence, claim of plaintiffs as regards acquisition of title by adverse possession is based on incorrect premises and plaintiffs under such circumstances do not deserve any relief as claimed and suit deserves to be dismissed.

On aforesaid pleadings, trial court framed issues and allowed the parties to lead evidence. Trial Court upon critical evaluation of evidence on record dismissed the suit. On appeal, the first appellate court re-appreciated the entire evidence on record. It has been found that plaintiffs failed to establish by the documentary evidence their continuous, uninterrupted, peaceful possession over the suit land. The oral evidence led by PW-2 is to the effect that he himself claims to be in possession of the suit land for last 25-26 years as a tenant. As such, possession of tenant cannot be said to be that of the person claiming adverse possession and, therefore, credibility of the evidence has not been found to be of any help to the plaintiffs. That apart, while examining the documentary evidence viz. Ex. P/4 Khasra Panchshala of 2010-11 it has been found that the suit land falling in survey no. 239/2 Raqba 0.721 hectare is the Abadi land registered as Government land, whereupon some government quarters are also constructed. The said land is not shown to be that of the ownership of Adarsh Seva Sangh, Pohari. No other documentary evidence is placed on record by defendants to establish that the suit land is of the ownership of defendant no. 3. The order allegedly passed by Tahsildar referred above has also not been produced. Likewise, no such resolution No. 13 dated 8/9/1979 of the society has been produced on record. As such, for want of documentary evidence on record, the story framed by the plaintiffs in the plaint as regards the suit land being of the ownership of defendant no. 3, who in turn has transferred the same to the plaintiffs by the alleged resolution, is found to be based on non-existing facts. In fact the suit land as is evident from Ex. P/4 was found to be the government land. On the aforesaid reasonings the first appellate court has confirmed the findings of facts recorded by the trial court and dismissed the appeal. Both the courts below have found that plaintiffs have failed to prove to be in continuous, peaceful and uninterrupted possession of the suit land, besides the fact that plaintiffs had made false assertion in the plaint based on non-existing facts.

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:-

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 judgments and material on record, this Court is of the view that the courts below have not committed any error of law. Findings so recorded are based on proper appreciation of evidence on record and 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. Before parting with the appeal, it is considered apposite to observe that in case plaintiffs are found to be in possession of the suit property or part thereof, they shall not be dispossessed except by adhering to due process of law. The Second Appeal sans merits is hereby dismissed.