Purshottam and Others vs Mandir Murti Shri Ramjanki and Others

Rohit Arya, J.—This appeal by plaintiffs is directed against the judgment and decree dated 30/10/2007 in civil appeal No. 25A/2006. The Trial Court vide its judgment and decree dated 28/9/2006 in civil suit No. 13A/2005 has dismissed the suit for declaration and permanent injunction.

Brief facts for disposal of this appeal are to the effect that plaintiffs claimed to be in possession of the suit land; an agricultural land, described in para 2 of the judgment impugned for last 60 years on the basis of the same having been sold to the grandfather of the plaintiffs by the erstwhile Pujari of the temple, namely, Gopaldas. The temple was the private temple and the land attached thereto was given to the temple by the erstwhile Ruler of the State as Muafi land. It was not a government temple. The Collector''s name recorded in the revenue record as Manager is illegal. With the further assertion that as plaintiffs are in possession since Samvat 2004 (year 1947), hence, they have acquired title by adverse possession. Notice issued to the plaintiffs for vacating suit premises treating them to have encroached upon the government land by issuance of notice under Section 248 of the M.P. Land Revenue Code was an illegal action, therefore, plaintiffs filed a suit for declaration and permanent injunction.

Defendants filed written statement and denied the fact that plaintiffs are in possession over the suit land. It is further denied that the temple is a private temple, instead it is pleaded to be the government temple in respect whereof Collector is recorded as Manager of the temple in the revenue record. After death of the Pujari, one Ramsevak was appointed as Pujari of the temple in the year 1983-84 as per the direction in vogue and accordingly, his name was recorded in the revenue records. Plaintiffs are encroacher in the government land and, therefore, were liable to be evicted by issuance of notice under Section 248 of the M.P. Land Revenue Code. Plaintiffs are not entitled for any relief much less the relief of declaration and permanent injunction. Accordingly, the suit was prayed to be dismissed.

On aforesaid pleadings, trial court framed issues and allowed the parties to lead evidence. On critical evaluation of evidence on record, trial court dismissed the suit. On appeal, the first appellate court has reconsidered the entire oral and documentary evidence on record and recorded the finding that the suit land appurtenant to the Ramjanki temple in fact is a government land and temple is a government temple. No Pujari has any right to transfer the land attached to the temple much less that of a government temple, as Pujari is only a caretaker or a person entrusted for managing the temple. That apart, the first appellate court has also found that the documentary evidence brought on record by the plaintiffs i.e. Khasra entries of revenue records of the year 1979 to 1983, Ex.P/2, and that of 1984 to 1988 Ex.P/1 do not reflect that plaintiffs were ever recorded as Bhoomiswami, instead in Ex.P/1 the plaintiffs were recorded as encroacher. In any case, adverse possession as claimed by the plaintiffs was not found to have been proved to perfect the title. Claim of possession over the suit land on the basis of stray revenue entries cannot justify the claim of perfection of title by adverse possession.

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 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, " 9. In the instant case adverse possession is being claimed in respect of the land attached to the temple, which is held to be the government temple, hence, for claiming adverse possession against the government temple, plaintiffs were under the obligation to prove continuous, peaceful and uninterrupted possession over the suit temple for more than 30 years. That has not been found proved and accordingly, the first appellate court has negated the claim of plaintiffs.

Having gone through the judgment and decree impugned, this Court is of the view that both the courts below have recorded pure findings of facts based on proper appreciation of evidence on record. 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 under Section 100 CPC. The second appeal sans merits and is hereby dismissed.