Radhelal vs State of M.P.

Rohit Arya, J.—This appeal u/s 100 CPC by the plaintiffs'' is directed against the concurring judgment and decree dated 24/12/2005 passed in civil appeal No. 121A/2005 by District Judge, Vidisha District Vidisha affirming the judgment and decree dated 12/05/2005 passed in civil suit No. 63A/2003 by Civil Judge, Class-I, Vidisha. By the aforesaid concurring judgments, both the Courts below have dismissed the suit of the plaintiffs'' for declaration and permanent injunction.

The plaintiffs'' have inter alia contended that the land admeasuring 2.250 hectare out of total 3.376 hectare is falling in survey No. 31, Patwari Halka No. 52 in village Katsara, tahsil & district Vidisiha (hereinafter referred to as ''the suit land''). According to the plaintiffs'', possession of the suit land was delivered by father of defendant No. 2 in the year 1960 by an oral agreement. As such for the last 40 years (as on the date of institution of the suit), the plaintiffs'' are in peaceful, uninterrupted and continuous possession over the suit land, ploughing the filed and harvesting crops. This fact of possession is well within the knowledge of the defendant/State. Hence, plaintiffs'' have acquired title over the suit land by adverse possession. They are as such entitled for recording of their names as bhumi swami in the revenue record in respect of the suit land.

Defendant/State did not file written statement.

Trial Court on the basis of the aforesaid pleadings framed issues and allowed parties to lead evidence. On critical evaluation of the evidence on record, trial Court has held that the claim of the plaintiffs'' in respect of delivery of possession in the year 1960 by Bhawani Prasad, father of defendant No. 2 is without any basis as the plaintiffs'' have failed to establish as to how the aforesaid suit land is claimed to be in possession of the father of the defendant No. 2. Besides, there is no documentary evidence to demonstrate and establish that the suit land is of the ownership of plaintiffs'' and they are in possession thereon. By referring to khasra exhibit P/9, it is found that patta which was earlier granted in favour of Bhawani Prasad was cancelled by the orders of Collector dated 26/05/1978 in case No. 34/77-78. Trial Court has also examined oral and documentary evidence as well and found that the same suffers from inherent contradictions and lacs substance. As such, neither documentary evidence nor the oral evidence establishes the claim of plaintiffs'' as regards possession over the suit land for the last 40 years. First appellate Court has affirmed the findings of the trial Court.

It is apposite to state law as regards adverse possession is well settled.

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, , in para-11 has observed as under:

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. 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 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 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 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, .

After 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 Courts below have recorded a finding of fact based upon critical evaluation of the evidence on record. The findings are fully justified and impregnable 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 u/s 100 of the Code.

Counsel for the appellants'' by referring to paragraph 24 of the judgment passed by the appellate Court submits that notice for eviction was issued to the plaintiffs'' that by itself demonstrates that they are in possession over the suit land and, therefore, they cannot be forcibly dispossessed.

It is needless to say that there is nothing on record to record a finding that the plaintiffs'' are in possession over the suit land. However, if the plaintiffs'' are found to be in possession, the defendant/State shall take recourse to the procedure established by law for evicting them from the suit land.

The appeal sans merit and is dismissed accordingly with the aforesaid observation.

Certified copy as per rules.