Moolchand vs Vishan Singh

Rohit Arya, J.—This appeal by plaintiff is directed against the judgment and decree dated 17/9/2004 in Civil Appeal No. 124-A/2002 confirming the judgment and decree dated 1/11/2002 in Civil Suit No. 13-A/2000. Plaintiff''s suit for permanent injunction has been dismissed.

Plaintiff filed a suit inter alia contending that the house constructed over the suit land falling in survey nos. 361 and 325 admeasuring 0.167 hectare in village Bajranggarh, Tahsil and District Guna, for last two generations is in peaceful, continuous and uninterrupted possession of plaintiff, who has acquired title by adverse possession. It is submitted that a civil dispute between father of plaintiff and defendants no. 1 and 3 was filed bearing case No. 4Aa/70/83-84, which was ultimately dismissed on 23/1/1986 and since thereafter plaintiff is in exclusive possession of the suit land, one portion whereof has been sold to one Devilal and one portion to one Kamla w/o Babulal for construction of house. No objection on said sale been effected and construction carried out has been taken by defendants. Plaintiff is residing on the part of the suit land and also doing cultivation on rest of the land, however, no objection or resistance has been raised by the defendants. On aforesaid premises, plaintiff claims to have perfected title by adverse possession. Having apprehended forcible dispossession, the plaintiff filed the instant suit for permanent injunction.

Defendants no. 1, 3 and 4 have filed separate written statement and denied the plaint allegations. It is denied that the suit land has never been transferred to Devilal and Kamla by sale. It is further denied that any house is in existence over the suit land, as alleged by the plaintiff. Plaintiff has no right, title and interest over the suit land. It is further submitted that the suit land was in exclusive possession of defendants no. 1 and 3 doing cultivation thereupon. It is further submitted that vide registered sale deed the aforesaid land has been sold to defendant no. 4, who is in possession thereof. With the aforesaid pleadings, suit was prayed to be dismissed.

On aforesaid pleadings, trial court framed issues and allowed the parties to lead evidence. Trial Court inter alia held that plaintiff failed to establish that he is in possession over the suit land since 1/11/2002 i.e. for last 12 years and, therefore, acquired title by adverse possession and even the plaintiff is not found to be in legal possession, therefore, dismissed the suit for permanent injunction. On appeal, the first appellate court upon perusal of the pleadings and the evidence led by the plaintiff, observed that plaintiff has pleaded to be in possession over the suit land continuously for last 12 years and to have acquired title by adverse possession, whereas evidence led is to the effect that plaintiff is in possession of the suit land by virtue of the same being his ancestral property and, therefore, there is apparent inconsistencies between the pleadings and evidence led, hence, such evidence cannot be read in support of the alleged possession of plaintiff, claimed to be adverse possession in the plaint. In the depositions of other witnesses viz. PW-2, Heeralal, and PW-3, Nizamuddin, it is found that the depositions suffer from inherent contradictions as regards claim of adverse possession and, therefore, not worth credit. Hence, plaintiff is not found to be in legal possession of the suit property for want of any evidence on record to establish plaintiff''s peaceful, continuous and uninterrupted possession over the suit land. With the aforesaid findings, first appellate court confirmed the findings of the trial court and 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.