Raghuveer Singh vs Shrikishan

Rohit Arya, J.—This appeal by the plaintiff u/s 100 CPC is directed against the concurring judgment and decree dated 23/08/2010 passed in civil appeal No. 20A/2009 by I Additional District Judge, Ashok Nagar, District Ashok Nagar affirming the judgment and decree dated 19/12/2008 passed in civil suit No. 31A/2008 by I Civil Judge, Class-I, Ashok Nagar. By the aforesaid concurring judgments, plaintiff''s suit for permanent injunction has been dismissed.

Plaintiff filed the suit inter alia contending that in respect of the suit land admeasuring 0.784 hectare falling in survey No. 374/2 situated in village Pakrod, Tahsil Isagarh, District Ashok Nagar, the defendant/State has granted patta in case No. 75A/19(1)81-82 on 25/05/1982 and possession was delivered. Since then, the plaintiff is in continuous, uninterrupted and peaceful possession over the suit land, cultivating and harvesting crops. Having apprehension of being forcible dispossession by defendants No. 1 and 2 with the help of local patwari, plaintiff filed the instant suit seeking permanent injunction.

Defendants filed written statement and denied plaint allegations. It is submitted that no patta was granted in favour of plaintiff on 25/03/1982 as claimed. The plaintiff is not a landless person as he owns 100 bigha of land. It is further submitted that the defendants No. 1 and 2 are landless farmers and, therefore, in case No. 11A19/2001-02, they have been given patta on 29/02/2002 admeasuring 0.366 hectare in survey No. 88 and admeasuring 0.784 hectare in survey No. 374/1 and possession was delivered to them. They have also been given Bhu-Adhikar and Run Pustika and since then they are in peaceful and continuous possession over the suit land, cultivating and harvesting crops. There is no Bhu-Adhikar and Run Pustika in favour of plaintiff and there is no receipt of payment of lagan by the plaintiff. Besides, the alleged patta, exhibit P/3 as is evident therefrom is for Samvat 2038 to 2047 (year 1981 to 1990) and thereafter there is no further patta granted in favour of plaintiff. There is no averment as regards details of patta granted neither in the plaint nor any evidence is lead. No revenue record was produced establishing the claim of plaintiff as regards grant of patta. In fact, in some khasra entries, the name of father of plaintiff has been shown as an encroacher. With the aforesaid pleadings, it was prayed that the suit be dismissed.

Based on the aforesaid pleadings, trial Court framed issues and allowed parties to lead evidence. Upon critical evaluation of the evidence on record dismissed the suit. On appeal, first appellate Court has again reappreciated the entire oral and documentary evidence on record and found that plaintiff has failed to establish continuous possession over the suit land and the alleged patta (exhibit P/3) is for Samvat 2038 to 2047 (year 1981 to 1990). No khasra panchshala or revenue document has been produced bearing the claim of the plaintiff as regards suit land bearing in survey No. 374/2. The suit land in the revenue record as Government land and there is a stray entry of father of plaintiff as an encroacher. No document/receipt showing payment of lagan has been produced. Under such circumstances, plaintiff failed to establish his possession over the suit land. With the aforesaid findings, first appellate Court affirmed the findings of fact recorded by trial Court.

It is apposite to state law 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, , 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 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, .

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 as a matter of fact, both the Courts below have properly appreciated 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.

However, before parting with the appeal, it is considered apposite to observe that the appellant/plaintiff shall not be dispossessed from the suit land except by recourse to the procedure established by law if he is found to be in possession over the suit land or part thereof by the State Government.

Appeal sans merit and is dismissed accordingly.

Certified copy as per rules.