Netram vs Ram Prasad and Others

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

The instant appeal by appellant/plaintiff under Section 100 of C.P.C. is directed against the concurring judgment and decree dated 23/8/2013 passed by Fourth Additional District Judge, Morena (M.P.) in Civil Appeal No. 3-A/2012 confirming the judgment and decree dated 18/5/2012 passed by Third Civil Judge, Class-II, Morena in Civil Suit No. 8-A/ 2009. By the aforesaid judgment, the plaintiffs'' suit for declaration and permanent injunction in respect of the suit land has been rejected.

Facts necessary for disposal of this appeal are to the effect that plaintiff filed a suit on the premise that the suit land; an agricultural land ad-measuring 0.28 hectare falling in survey No. 102/1 situated in village Rasilpur Tahsil and District Morena was of the ownership and possession of father of defendant No. 1-Babulal. As Babulal was not cultivating the land, same had become barren, therefore, was given to father of plaintiff Roopsingh on oral Patta on payment of compensation of Rs. 3,000/- in Samwat 2034. Thereafter, plaintiff and his father Roopsingh are cultivating the land and harvesting crops. In 2001, father of plaintiff Roopsingh and that of defendant Babulal died. Defendant No. 1 has not been residing in village and was away with his uncle and thereafter joined the police service and residing at Indore. He has never come to Rasilpur and has never cultivated the suit land. With the aforesaid submissions, it is submitted that plaintiff is in possession over the suit land since Samwat 2034 i.e. for last 32 years. The plaintiff was always assured that the suit land shall be transferred in his favour by execution of sale deed but instead the defendant No. 1 entered an agreement with defendant No. 2 in respect of suit land. Having come to know about the same, instant suit was filed.

Defendants No. 1 and 2 filed separate written statements denying the plaint allegations.

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

On appeal, before first appellate Court plaintiff filed an application under Order XXVII Rule 27 of CPC to bring on record certain khasra entries. First appellate Court has considered the application and found that khasra entries sought to be brought on record were of the period after the filing of suit and were sought to be brought on record on the premise that those documents were not in the possession of plaintiff, therefore, could not be produced before the trial Court. First appellate Court upon examination of documents found that those khasra entries are of the period year 2011-12 and 2013; whereas, suit was filed on 28/1/2009. Suit was filed on the basis of khasra entries of year 2007-08 which bear some amendment in khasra panchshala to the benefit of plaintiff; however, neither Patwari was examined nor any orders were brought on record with the strength whereof the aforesaid amendment was made. In any case, those documents were of the period during pendency of the suit and there is no justification of not filing the same before the trial Court, therefore, first appellate Court dismissed the application yet on another ground as documents were found to be of no consequence as regards claim of the plaintiff of title over the suit land as plaintiff failed to prove his continuous, peaceful and uninterrupted possession for perfection of title by adverse possession. Based on proper appreciation of record, first appellate Court has found that claim of the plaintiff has rightly been rejected by the trial Court as well discussed in para 17 to 19 of the impugned judgment.

Law as regards adverse possession is well settled 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 under Section 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, has observed as under:-

"11. 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, ." 11. 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 under Section 100 of CPC. No question of law, much less substantial question of law arises in this appeal. Appeal is therefore, dismissed.