Manjoor Mohammad vs State of M.P.

Rohit Arya, J.—This appeal u/s 100 of CPC by the plaintiff is directed against the concurring judgment and decree dated 08/07/2004 passed in civil appeal No. 12A/2004 by III Additional District Judge, Vidisha District Vidisha affirming the judgment and decree dated 13/11/2003 passed in civil suit No. 500A/2003 by Civil Judge, Class-II, Kurwai whereby plaintiff''s suit for declaration and permanent injunction as regards suit land has been dismissed.

Subject-matter of suit relate to an agricultural land falling in survey No. 113/1A area 2.000 out of 6.429 hectare situated in village Adelpur, Tahsil Kurwai, District Vidisha. Plaintiff filed a suit for declaration and permanent injunction inter alia contending that over the suit land since 1969, he is in possession and enjoying the suit land as its owner and as such 30 years has passed by on the date of filing of the suit and, therefore, acquired title by adverse possession. Accordingly, prayed for the relief as stated above.

Defendant/State filed written statement and denied the plaint allegations. It is denied that the plaintiff is in continuous possession over the suit land for the last 30 years as claimed. It is submitted that the plaintiff is an encroacher over the suit land and, therefore, proceedings u/s 248 of the Madhya Pradesh Land Revenue Code, 1959 have been initiated against him and he was dispossessed. Accordingly, prayed for dismissal of the suit.

Trial Court based upon the aforesaid pleadings had framed issues and allowed parties to lead evidence. Trial Court on critical analysis of the pleadings and the evidence brought on record has dismissed the suit. On appeal, the first appellate Court has again re-appreciated the entire evidence on record and found that there is not a single revenue document/khasra on record to demonstrate that the plaintiff is in possession over the suit land since 1969. As a matter of fact, in some years the plaintiff has been shown as an encroacher and in fact, he has been dispossessed from the suit land. In some years of khasra from 1977-78 to 2000-2001, i.e., between the years 1979-80 and 1988-89, plaintiff''s possession has been shown. In some years of khasra from 1998 to 2000 and 2001, the plaintiff''s possession has not been reflected in the revenue record. As such, the entire documentary and oral evidence brought on record did not justify the claim that plaintiff is in continuous, uninterrupted and peaceful possession over the suit land for 30 years as claimed to perfect title by adverse possession. Accordingly, appellate Court affirming the findings of the trial Court as regards right of possession of plaintiff over the suit land has dismissed the suit.

As regards ripening of the title by adverse possession, the law is well settled and a party is required to plead and prove it. 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 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 as well as the settled law, this Court is of the opinion that both the Courts below have recorded impregnable findings of fact based on record. 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 judgment and in the fitness of things, it is considered apposite to observe that if plaintiff/appellant is in possession over the suit land or part thereof even if as an encroacher cannot be subjected to forcible dispossession except adhering to the procedure established by law.

The appeal sans merit and is dismissed accordingly with the aforesaid observation.