Mahaveer Singh vs Janki Arora

Rohit Arya, J.—This appeal by plaintiff is directed against the judgment and decree dated 30/6/2008 in Civil Appeal No. 57-A/2007 confirming the judgment and decree dated 29/6/2007 in Civil Suit No. 19-A/2006. Plaintiff''s suit for declaration and permanent injunction has been dismissed.

Plaintiff filed a suit inter alia contending that the suit land falling in survey nos. 156, 160, 170 and 171 situated in village Banskhedi, Tahsil and District Shivpuri is in peaceful, continuous and uninterrupted possession of the plaintiff for last 15 years with Bhoomiswami rights, therefore, he has perfected title by adverse possession. Defendant no. 1 claiming to have purchased the suit land in the year 2001 from one Bhushanlal since threatened the plaintiff of forcible dispossession, plaintiff filed the instant suit for declaration and permanent injunction.

Defendant No. 1 filed written statement and denied the plaint allegations. It is denied that the plaintiff is in possession of the suit land for last 15 years. It is pleaded that in fact the suit land is of title and ownership of defendant no. 1, who has purchased the same by sale deed dated 24/1/2004 from Bhushanlal and is in possession thereof. It is further submitted that earlier one Sardar Singh filed a suit for declaration of title on the basis of adverse possession, which was dismissed and the appeal preferred therefrom was also dismissed. The instant suit has been filed in collusion with Sardar Singh. With the aforesaid pleadings, suit was prayed to be dismissed.

The trial court on the respective pleadings of the parties framed issues and allowed the parties to lead evidence. Trial Court upon critical evaluation of the evidence on record, dismissed the suit having held that the plaintiff failed to establish his continuous, peaceful, uninterrupted possession over the suit land for last more than 12 years hostile to the defendants. On appeal, the first appellate court has re-appreciated the entire evidence on record. It is found that Sardar Singh is the uncle of appellant/plaintiff Mahavir Singh. Sardar Singh had earlier filed a civil suit No. 15-A/2005 claiming perfection of title by adverse possession over the suit land falling in survey nos. 156, 160, 170 and 171 in village Banskhedi, District Shivpuri. The same was dismissed by the trial court on 15/7/2005 and the appeal arising therefrom was also dismissed on 21/10/2005. Therefore, the first appellate court further observed that the instant suit has been filed by Mahavir Singh nephew of Sardar Singh for the same relief on the same averments. As such, it was found that in fact the instant suit was filed in collusion with Sardar Singh, which stood dismissed on 29/6/2007. While adverting to the documentary evidence on record, the first appellate court has found that there is no Khasra Panchshala entries or documents to support the assertion of plaintiff to be in continuous possession of the suit land for last 15 years. As such, the claim of plaintiff as regards peaceful, continuous, uninterrupted possession and perfection of title by adverse possession has been negated for want of evidence in that behalf and the findings of the trial court were confirmed. Accordingly, dismissed the appeal.

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, , in para 11 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 plaintiff is found to be in possession of the suit property or part thereof, he shall not be dispossessed except by adhering to due process of law. The Second Appeal sans merits is hereby dismissed.