Pransingh vs State of M.P.

Rohit Arya, J.—This appeal by plaintiffs is directed against the judgment and decree dated 22/3/2004 in Civil Appeal No. 6-A/2004 confirming the judgment and decree dated 6/12/2003 in Civil Suit No. 23-A/2002. Plaintiffs'' suit for declaration and permanent injunction has been dismissed.

Plaintiffs filed a suit inter alia contending that the suit land admeasuring 2 hectare falling in Khasra No. 326 in village Jhilipur, Tahsil Basoda, District Vidisha, is in his possession since 14/1/1972, whereupon they are doing cultivation and harvesting crops. They are in peaceful, continuous, uninterrupted possession thereof hostile to the State. Since they apprehended forcible dispossession, therefore, brought the instant suit for the aforesaid relief.

Defendant filed written statement and denied the plaint allegations. It is inter alia contended that suit land is reserved for Charnoi purposes in revenue records. It is denied that the plaintiffs are not in continuous possession over the suit land since 14/1/1972. 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 upon critical evaluation of evidence on record dismissed the suit. On appeal, the first appellate court re-appreciated the entire evidence on record, particularly documentary evidence in para 9 and 10 of the impugned judgment, whereby it is found that plaintiffs have failed to establish their possession over the suit land since 14/1/1972 to claim title by adverse possession against the State. As a matter of fact, in most of the entries in Khasra Panchshala plaintiffs have been shown to be an encroacher, like in Ex. P/5 of Samvat 2038-2039, Ex. P/6 of Samvat 2038-2042, Ex. P/7 of 1996-97 to 1999-2000, Ex. P/8 of 1986-87 to 1990-91 and Ex. P/9 of 2001-2002. The oral evidence led by the plaintiffs to assert their possession over the suit land is found to be suffering from inherent contradictions and inconsistencies. It has been ultimately found that plaintiffs failed to establish their continuous possession over the suit land for last 30 years hostile to the State Government to claim title by adverse possession as provided under Article 112 of the Indian Limitation Act, 1963.

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, 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, : 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 plaintiffs are found to be in possession of the suit property or part thereof, they shall not be dispossessed except by adhering to due process of law. The Second Appeal sans merits is hereby dismissed.