Premnarayan Sharma vs Raju and Others

Rohit Arya, J.—This appeal by the plaintiff under section 100 CPC is directed against the concurring judgment and decree dated 16/04/2008 passed in civil appeal No. 11A/2007 by IV Additional District Judge (Fast Track Court), Dabra, District Gwalior confirming the judgment and decree dated 19/04/2007 passed in civil suit No. 47A/1988 by II Civil Judge, ClassII, Dabra, District Gwalior. Plaintiff''s suit for declaration and permanent injunction has been dismissed.

Suit land; agricultural land falling in survey No. 259 (new No. 52) area 4 bigha 16 biswa and survey No. 259/896 (new No. 53) area 16 biswa situated in village Gangapur, Tahsil Pichhore, District Gwalior are in dispute. The plaintiff filed a suit inter alia contending that the suit land was of the ownership and possession of the defendant No. 2 in the year 1957 and on 04/03/1957, the same was given on patta for 20 years during the period Samvat 2013 (year 1956) to Samvat 2033 (year 1976). Accordingly, the possession was also delivered. Since then, the plaintiff is in possession thereof. Thereafter, vide sale deed dated 04/04/1962, the defendant No. 2 transferred the title of the suit land in favour of plaintiff for a consideration of Rs.1,200/-. On the date of execution of agreement, Rs.1,000/- was pad and the remaining amount of Rs.200/- was promised to be paid after receipt of the sale deed. As such, plaintiff acquired title over the suit land. As late as on 06/07/1988, the plaintiff apprehended forcible dispossession by defendant No. 1, accordingly, filed the suit on 08/07/1988.

Defendant No. 1 remained ex parte.

Defendant No. 2 filed written statement and denied plaint allegations. It is denied that the suit land is of the ownership and possession of plaintiff. It is denied that the suit land is of the ownership of defendant No. 2 in the year 1957. It is further denied that on patta, the suit land was given for 20 years on 04/03/1957 to the plaintiff and delivered possession. It is further denied that on 04/04/1962, the suit land was transferred in favour of plaintiff for a consideration of Rs.1,200/-. It is denied that any cause of action has arisen to the plaintiff on 06/07/1988. It is denied that the plaintiff ploughing the field and harvesting crops over the suit land. It is further submitted that the suit land is of the ownership and possession of Mandir Shriram Janki and managed by Collector as Manager (Prabandak) belonging to Maufi Aukaf department and his name is recorded in the revenue record as pujari. Earlier, Gokul Das, a disciple of Shri Dharmadas Bairagi was pujari of the temple. The suit land was of the ownership of Jagirdar of village Gangapur. On 05/02/1924, Jagardiar of village Gangapur has donated the suit land in favour of the temple and recorded the name of Gokul Das as pujari of the temple in the revenue record. The name of Gokul Das continued in the revenue record from 05/02/1924 till Samvat 2031 (year 1974). Thereafter, in Samvat 2031 (year 1974), the name of defendant No. 2 was mutated in the revenue record. In none of the khasras, the name of plaintiff has been recorded either as bhumi swami or otherwise in any capacity. It is submitted that the entries made in khasra from Samvat 2013 (year 1956) to Samvat 2025 (year 1968) in column No. 20 were non est as the same were not recorded under the orders of any authorised revenue authorities. In the years 1957 and 1962, the plaintiff himself was a minor and the question of reflecting his name in the revenue record in any capacity did not arise under the provisions of the Madhya Pradesh Land Revenue Code, 1959.

Defendant No. 3/State filed written statement and denied plaint allegations. It is denied that the suit land is neither of the ownership or possession of the plaintiff. The suit land is of the ownership of Mandir Shriram Janki under Aukaf department. With the aforesaid pleadings, defendant/State prayed for dismissal of the suit.

On the aforesaid pleadings, trial Court framed issues and allowed parties to lead evidence. Upon critical evaluation of the entire evidence on record, trial Court has recorded a finding to the effect that it is not proved that the defendant No. 2 had given the suit land to the plaintiff on patta for 20 years. It is also not proved that the sale deed was executed by defendant No. 2 in favour of the plaintiff in respect of the suit land. It is also not proved that suit land is of Aukf land registered in the name of defendant No. 2 as pujari. Keeping in view plaintiff''s prayer for possession, the suit was found to be maintainable. With the aforesaid reasoning, the trial Court has dismissed the suit.

On appeal, first appellate Court has addressed the issue as to whether on the basis of documentary and oral evidence, the plaintiff could be said to be in possession over the suit land by virtue of alleged patta for 20 years since 04/03/1957 and also acquired title thereto by virtue of sale deed dated 04/04/1962 by defendant No. 2, Radhikadas, i.e., Exhibit P/1 patta, Exhibit P/2 kashra pachshala Samvat 2013 (year 1956) to Samvat 2017 (year 1960), Exhibit P/3 kashra pachshala Samvat 2018 (year 1961) to Samvat 2020 (year 1963), Exhibit P/4 kashra pachshala Samvat 2021 (year 1964) to Samvat 2022 (year 1965), Exhibit P/5 kashra pachshala Samvat 2023 (year 1966) to Samvat 2024 (year 1967), Exhibit P/6 Samvat 2025 (year 1968), Exhibit P/7 kashra pachshala of Samvat 2026 (year 1969) to Samvat 2030 (year 1973) and Exhibit P/9 kashra Samvat 2025 (year 1968).

In paragraph 14, the first appellate Court found that the plaintiff in his examination in chief has stated that he was born in the year 1950 and patta claimed to have been awarded on 04/03/1957, i.e., at the age of 07 years. The said fact was found to be totally unrealistic and did not accept the contention in that behalf. Besides, a perusal of the patta, it was found that no where there is mention as regards age of the plaintiff or if minor under the guardianship of his father, the patta was granted to him was not reflected. Plaintiff has clearly stated that Gokul Das had died prior to the year 1957 but unable to state exactly when Gokul Das had died. On the aforesaid patta, it is stated that Radhia Das has competence to execute patta after death of Gokul Das. However, Gangaram (P.W.2), Suryadev (P.W.3) and Kadam Singh (P.W.4) have not stated anything as to when Gokul Das had died. As such, even the death of Gokul Das is not mentioned or stated by any of the witnesses. As regards documentary evidence/revenue record, exhibit P/3 khasra for Samvat 2013 (year 1956) to Samvat 2017 (year 1960) the suit land is recorded in the name of Gokul Das as ''krishak''. Likewise, exhibit P/4, khasra Samvat 2018 (year 1961) to Samvat 2030 (year 1973), in respect of survey No. 259, the name of Radhika Das is recorded as ''pakka krishak'' and for survey No. 896/259, the name of Gokul Das is recorded as ''pakka krishak''. In exhibit P/5 khasra for Samvat 2021 (year 1964) to Samvat 2022 (year 1965) as regards survey No. 259, the name of Radhika Das recorded as bhumi swami. In exhibit P/6 Samvat 2023 (year 1966) to Samvat 2024 (year 1967), as regards survey No. 259, the name of Radhika Das and survey No. 896/295, the name of Gokul Das have been recorded as bhumi swami. In khasra for Samvat 2025 (year 1968) as regards survey No. 259, Mandir Shriram Janki Maufi Atia Sarkar bhumi swami, pujari Radhika Das and survey No. 896/259, the name of Gokul Das recorded as bhumi swami. Plaintiff claimed to be recorded in possession of all the aforesaid khasras.

Defendant has filed D/2, khasra for Samvat 2026 (year 1969) to Samvat 2030 (year 1973) wherein survey No. 259 reflected as Mandir Shriram Janki Maufi Atia Sarkar bhumi swami, pujari Radhika Das and survey No. 896/259, the name of Gokul Das recorded as bhumi swami. Same entries continued in exhibit D/3 khasra for Samvat 2033 (year 1976) to Samvat 2036 (year 1979). In exhibit D/4 khasra for Samvat 2037 (year 1980) to Samvat 2041 (year 1984) in survey No. 52 Mandir Shriram Janki Maufi Atia Sarkar bhumi swami, pujari Radhika Das and survey No. 53, the name of Gokul Das recorded as bhumi swami. In survey No. 52, the name of Collector, Gwalior recorded as Manager (Prabandak). As suit land falling in survey No. 259, kastibandi khatoni for Samvat 2031 (year 1974) has been placed on record wherein Maufi Atia Sarkar bhumi swami, pujari Radhika Das, Manager (Prabandak), Collector, Gwalior. So far as kastibandi khatoni for Samvat 2031 (year 1974) in respect of survey No. 896/259, the name of Gokul Das is recorded as bhumi swami. Likewise, in the remaining revenue entries , same entries are made. There is no evidence on record that Gokul Das had died prior to the year 1957. The first appellate Court found that as on 04/03/1957, the suit land was not recorded in the name of Radhika Das. As such, no such patta could have been executed in favour of plaintiff on 04/03/1957. The plaintiff has to establish his own case and should not rest on the weaknesses of the defendant.

As regards alleged sale deed in paragraph 19 of the impugned judgment, the first appellate Court has reconsidered the entire evidence on record and looking to the revenue record analysed that the plaintiff has failed to establish that sale deed was executed by Radhika Das in favour of plaintiff on 04/04/1962 in respect of the suit land. First appellate Court, therefore, affirmed the findings recorded by the trial Court on this issue as well.

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, 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. Nonuse 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, ." 12. 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 the assertion of the plaintiff that the alleged patta dated 04/03/1957, both the Courts below have rightly found not executed. Likewise, there is no documentary evidence of execution of the alleged sale dated 04/04/1962. The findings so recorded by the Courts below are pure findings of fact based on critical evaluation of the entire evidence on record. As such, both the Courts below are fully justified in dismissing the suit of plaintiffs''. The findings are absolutely impeccable 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 under section 100 CPC.

Appeal sans merit and is accordingly dismissed.