Nazar Mohammad vs State of MP

Rohit Arya, J.—This appeal by plaintiffs'' u/s 100 CPC is directed against the concurring judgment and decree dated 09/10/2007 passed in civil appeal No. 13A/2007 by District Judge, Sheopur District Sheopur confirming the judgment and decree dated 24/03/2007 passed in civil suit No. 77A/2006 by Civil Judge, Class-II, Sheopur. Plaintiffs'' suit for declaration and permanent injunction has been dismissed.

Plaintiffs'' have filed the suit in respect of the suit property situated on Shivpuri road in village Shivpuri as described in paragraph 2 of the impugned judgment of the first appellate Court (hereinafter referred to as ''the suit land''). Plaintiffs'' asserted that they are in possession over the suit land for the last 30 years, uninterrupted, peaceful and continuous doing cultivation and harvesting crops. The defendant/State in case No. 73/01-02/A-68 has passed an order on 23/11/2001 without notice and without affording opportunity of hearing to the appellants and imposed fine of Rs. 700/- allegedly for the reason of encroachment by the plaintiffs over the suit land. Apprehending forcible dispossession on 20/09/2002 by the patwari of the local area, the instant suit for declaration of perfection of title by adverse possession and permanent injunction restraining the defendant from interfering with the possession of the plaintiffs'' over the suit land was filed.

Defendant/State filed written statement and denied plaint allegations, particularly, the averment that the plaintiffs are in possession over the suit land for last 30 years. It is contended that the plaintiffs'' encroached over the suit land but they have been dispossessed by affording due opportunity of hearing. Plaintiffs'' are no more in possession over the suit land. With the aforesaid pleadings, defendant/State prayed for dismissal of the suit.

On aforesaid pleadings, trial Court framed issues and allowed parties to lead evidence. Upon critical evaluation of the entire evidence on record, trial Court has dismissed the suit. On appeal, first appellate Court has again reappreciated the entire oral and documentary evidence brought on record in respect of claim of perfection of title by adverse possession by the plaintiffs''. The first appellate Court has observed that there are inherent contradictions and inconsistencies in the oral and documentary evidence led by the plaintiffs, particularly; PW 4 Sobaran Singh, Revenue Inspector who with respect to khasra entries from Samvat 2024 (year 1967) to Samvat 2045 (year 1988) in his chief examination has stated that the name of plaintiffs'' father, Yusuf was shown to be in possession over the suit land, however, in the cross-examination, he has stated that 3-4 months back he has been posted at Sheopur, he has not physically seen the suit land and he does not know as to who is in possession over the suit land. The burden was upon the plaintiffs to prove the continuous, uninterrupted and continuous possession over the suit land for the last 30 years to claim perfection of title by adverse possession against the State. However, the plaintiffs failed to establish their claim in that behalf. Merely because some stray entries in the revenue record that the ancestors of the plaintiffs are shown in possession over the suit land, that by itself will not justify their claim by adverse possession. Even otherwise, after Samvat 2045 (year 1988), there is nothing on record to establish that the plaintiffs'' are in possession over the suit land though from Samvat 2024 (year 1967) to Samvat 2045 (year 1988) in some of the revenue entries, the name of plaintiffs'' ancestors have been shown to be in possession but as an encroacher. With the aforesaid findings, first appellate Court affirmed the findings of fact recorded by trial Court that the plaintiffs have failed to establish perfection of title by adverse possession and dismissed the suit.

Law as regards 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 :

"11. 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 recorded pure findings of fact based on proper appreciation of the entire evidence on record and dismissed the suit. As such, both the Courts below are fully justified in dismissing the suit of plaintiffs''. Findings so recorded are 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 if the defendant/State finds that the plaintiffs/appellants are in possession over the suit land or part thereof, they cannot be dispossessed except by recourse to the procedure established by law.

Appeal sans merit and is dismissed accordingly.