Mantoli 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 09/05/2008 passed in civil appeal No. 22A/2006 by Additional District Judge, Sabalgarh, District Morena affirming the judgment and decree dated 26/04/2006 passed in civil suit No. 56A/2005 by Civil Judge, Class-I, Sabalgarh, plaintiff''s suit for declaration and permanent injunction has been dismissed.

Plaintiff claimed title and possession over the suit land admeasuring 0.40 hectare falling in survey No. 105 (old survey No. 62) since Samvat 2025 (Year 1968). He claimed to be landless person having no source of income. The suit land which was earlier padat has been taken possession and developed the land and since then, he is doing cultivation and harvesting crops thereon. The suit land is not recorded in his name, in the revenue recorded and instead the same is shown as charnoi land. Plaintiff claimed to be in continuous, peaceful and uninterrupted possession over the suit land since Samvat 2025 (Year 1968) and perfected title over the suit land by way of adverse possession. Having apprehension of forcible dispossession, plaintiff filed the instant suit seeking declaration and permanent injunction.

Defendant/State filed written statement and denied plaint allegations. It is submitted that the suit land is the ownership of State. The plaintiff is an encroacher over the suit land and, therefore, has no legal right. He has been fined many a times. Suit land is a charnoi land and after due notification issued by Collector, Morena on 27/06/2002, the same has been converted into an agricultural land and thereafter, patta has been granted in favour of various persons admeasuring 0.320 hectare in survey No. 812. Further, patta holders have not been made as party to the suit and, therefore, the suit deserves to be dismissed for non-joinder of necessary party. It is submitted that the suit land is a Government land and the plaintiff has no right to maintain suit claiming title thereon by adverse possession. With the aforesaid pleadings, it was prayed that the suit be dismissed.

Based on the aforesaid pleadings, trial Court framed issues and allowed parties to lead evidence. Upon critical evaluation of the evidence on record, trial Court dismissed the suit. On appeal, first appellate Court has again reappreciated the entire oral and documentary evidence on record and reached the conclusion that the plaintiff failed to establish his continuous, peaceful and uninterrupted possession over the suit land for the last 30 years and thereby perfected the right and title against the State. No documentary evidence is brought on record showing legal possession of the plaintiff. In the revenue record, the suit land has all along been recorded as ownership of the State. With the aforesaid findings, first appellate Court affirmed the findings of fact recorded by trial Court.

It is apposite to state law 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, , 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, this Court is of the opinion that both the Courts below have properly appreciated the evidence on record. The findings are fully justified and 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 that the appellant/plaintiff shall not be dispossessed from the suit land except by recourse to the procedure established by law if he is found to be in possession over the suit land or part thereof by the State Government.

Appeal sans merit and is dismissed accordingly.

Certified copy as per rules.