Pratap Narayan vs State of M.P.

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 19/1/2015 passed by District Judge, Datia (M.P.) in Civil Appeal No. 16-A/2004; confirming the judgment and decree dated 13/8/2003 passed by Civil Judge, Class-I, Bhander, District Datia in Civil Suit No. 22-A/2002. Plaintiff''s suit for declaration and permanent injunction has been dismissed.

Plaintiff, in the plaint, inter alia contended that land admeasuring 2 hectare out of total 4.30 hectare of survey No. 1252 (New No. 1385) situated at Mauja Bichhodana, Tahsil Bhander, is recorded as Charnoi land in the revenue records over which he is in possession for last 30-35 years, doing cultivation and harvesting crops thereon, as such he has perfected his title over the suit land by adverse possession. Plaintiff apprehending grant of Patta in respect of suit land to third person and further apprehending forcible dispossession, brought the instant suit for declaration and permanent injunction.

Defendant/State filed the written statement and denied the plaint allegations. It is submitted that plaintiff has no right, title or interest over the suit land. He was an encroacher and therefore, dispossession from the suit land and by order of Tahsildar dated 26/7/2002 the suit land has been given on Patta to landless tribes and vacant possession was also delivered. It is further averred that in fact plaintiff since has not claimed relief of possession, suit was not maintainable. Even otherwise suit is based on concocted facts, therefore, prayed for dismissed of the suit.

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

On appeal, the first appellate Court again re-appreciated the entire evidence on record and found that there is no documentary evidence on record to establish right, title or interest of the plaintiff over the suit land. The stray entries in some of the Khasra that to as an encroacher by itself would not establish the assertion of the plaintiff as regards perfection of title by adverse possession. To claim adverse possession over a government land, the plaintiff has legal obligation to establish continuous, peaceful and uninterrupted possession over the suit land for last 30-35 years. Evidence on record did not establish his claim.

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