Mulchandra vs State of M.P. and Others

Rohit Arya, J.—Heard on the question of admission.

The instant appeal by appellant/plaintiff u/s 100 of C.P.C. is directed against the concurring judgment and decree dated 12/09/2003 passed by Additional District Judge, Lahar, District Bhind in Civil Appeal No. 25-A/1999; confirming the judgment and decree dated 28/7/1999 passed by Second Civil Judge, Class-I, Lahar in Civil Suit No. 287-A/1998. By the aforesaid judgment, the plaintiff''s suit for declaration and permanent injunction in respect of the suit land has been rejected.

Plaintiff filed a suit inter alia contending that since the time of ancestors the suit land ad-measuring 0.101 hectare falling in survey No. 120 is in his possession and previously a Kaccha house was constructed thereon and thereafter a Pakka house was constructed thereupon in which the plaintiff is running a tea stall for last more than 30 years. His possession is peaceful, continuous and uninterrupted to the knowledge of the respondents, as such he has acquired title by adverse possession. But since the defendant/State has illegally and unauthorisedly threatened him of forcible dispossession, plaintiff filed the instant suit for declaration and permanent injunction.

Defendants filed written statement and denied the plaint allegations. It is submitted that plaintiff is an encroacher and he has never been in legal possession of the suit land. With the aforesaid pleadings, they have prayed for dismissal of the suit.

Based upon the aforesaid pleadings, the trial Court framed the issues and allowed the parties to lead evidence and upon critical evaluation of the evidence brought on record, dismissed the suit.

On appeal, the first appellate court has re-appreciated the evidence on record. It has been found that there is no documentary evidence on record to establish title and possession of the plaintiff over the suit land. Further the plaintiff has failed to establish that suit land is ancestral property. First appellate Court further dwell upon the documentary evidence from Ex. P/1 to P/6 which demonstrate that plaintiff''s possession has been interrupted by respondents by issuing notices against his illegal possession. Further upon perusal of certain Khasra Panchshala it has been found that suit land was given to defendant No. 2 and defendant No. 3. Documentary evidence Ex. P/1 to P/4 have also been perused to conclude the fact that even respondents have been issuing notices to plaintiff for removal of encroachment consistently. Under such circumstances, the first appellate Court confirmed the findings 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, , 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, .

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.