Madhosingh (since dead) through L.Rs. vs The State of M.P.

Rohit Arya, J.—Heard.

This appeal by plaintiff u/s 100 of C.P.C. is directed against the concurring judgment and decree dated 29/3/2006 passed by District Judge, Vidisha in Civil Appeal No. 237-A/2006; confirming the judgment and decree dated 26/11/2005 passed by Civil Judge, Class I, Vidisha in Civil Suit No. 76-A/2005. By the impugned judgment and decree the plaintiff''s suit for declaration and permanent injunction has been dismissed.

The suit property consists in different parcels of agricultural land as described in para 2 of the impugned judgment of first appellate Court. Plaintiff filed a suit for declaration and permanent injunction asserting continuous, peaceful and uninterrupted possession over the suit land for last 53 years since the time of Zamindari and therefore, claimed title by adverse possession and permanent injunction against the State not to dispossession him from the suit land.

Defendant/State by filing written statement denied the plaint allegations. It is submitted that plaintiff is an encroacher over the suit land. There is no documentary evidence on record to support the claim of plaintiff having been given the land by erstwhile Zamindar and also that plaintiff is in possession of the suit land for the aforesaid period of 53 years. In fact plaintiff was dispossessed from the suit land thrice viz. in the year 1976-77, on 18/8/1998 and lastly on 19/7/2000. Hence, the suit was prayed to be dismissed.

Based upon the aforesaid pleadings, trial Court framed issues and allowed parties to lead evidence. After detailed analysis of the evidence on record, trial Court dismissed the suit.

On appeal, the first appellate Court has again re-appreciated the oral and documentary evidence on record to examine the claim of the plaintiff as regards peaceful, continuous and uninterrupted possession over the suit land for last 53 years. Upon examination of oral evidence of PW/1 Pancham Singh, it is found that he does not know whether the suit land is a government land or not. He admitted that over suit land cattle used to graze. He further admitted that fine was imposed and he was dispossessed by the revenue authorities. Likewise PW/2-Lalaram admitted in his cross-examination that he is not aware about the area of the suit land. He further admitted that plaintiff was fined by the revenue authorities. The first appellate Court further in para 13 to 15 of the impugned judgment has examined each and every Khasra entry produced and found that plaintiff is not in continuous, peaceful and uninterrupted possession of the suit land as in some of the entries plaintiff''s possession has been shown as an encroacher and in some of the entries his possession has not been shown. Khasra entries were of different years and not of the continuous period as alleged. Therefore, the first appellate Court concurring with the findings of the trial Court confirmed the judgment and decree of the trial Court.

Law as regards adverse possession is well settled. 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, .

After having perused the judgments of both the Courts below, this Court is of the view that the entire gamut of matter is in the realm of facts. The findings recorded by both the Courts below are pure findings of facts which in the opinion of this Court do not warrant any interference u/s 100 of CPC. No question of law, much less substantial question of law arises in this appeal. Appeal is therefore, dismissed. However, this Court directs that the if the plaintiff is in possession over any part of the suit land, even if as an encroacher, he may not be evicted from the suit land except in accordance with the procedure established by law.