Raghvendra vs State of M.P.

Rohit Arya, J.—This appeal by the plaintiffs'' u/s 100 CPC is directed against the concurring judgment and decree dated 08/08/2007 passed in civil appeal No. 21/2007 by Additional District Judge, Gohad District Bhind affirming the judgment and decree dated 07/02/2007 passed in civil suit No. 71/2006 by Civil Judge, Class-I, Gohad, plaintiffs'' suit as regards declaration and permanent injunction and further declaration that the settlement order passed by Tahsildar in case Nos. 94/96-97A/19 & 100/96-97A/19 affirmed by Sub Divisional Officer vide order dated 31/07/2000 and further affirmed in revisional jurisdiction by Commissioner, Chambal Division, Morena dated 10/04/2001 is null and void has been dismissed.

Plaintiffs have filed the suit inter alia contending that an agricultural land falling in various survey numbers and AARAJI numbers situated in village Barthara, Tahsil Gohad District Bhind (hereinafter referred to as ''the suit land'') as described in paragraph 3 of the judgment by the first appellate Court is of their title and ownership. The aforesaid lands falling in survey numbers and AARAJI numbers are part of the same agricultural field owned by the plaintiffs. It is asserted by the plaintiffs that the suit land is continued to be in possession of their grand-father, Madan Mohan and the plaintiff''s father is said to have been adopted by Madan Mohan. Madan Mohan has executed a ''will'' appointing plaintiffs'' as his heirs. Since the time of Zamindari, Samvat 2007 (year 1951) till Samvat 2050 (year 1994) as per revenue record, plaintiffs'' grand-father''s name is recorded and, therefore, they have acquired bhumi swami rights from the date of enforcement of Madhya Pradesh Land Revenue Code, 1959 on 02/10/1959 over the suit land. However, in Samvat 2051 (year 1995) without notice to the plaintiffs, their names have been deleted and settlement proceedings have been conducted without any authority which are patently illegal. Against the aforesaid settlement order, plaintiffs have preferred an appeal before the Sub Divisional Officer and the same has been dismissed vide order dated 31/07/2000. Being aggrieved thereof, a revision petition was filed before the Commissioner, Chambal Division, Morena and the same has been dismissed vide order dated 10/04/2001. With the aforesaid pleadings, prayed for decreeing the suit.

Defendants have filed separate written statements and denied plaint allegation. It is denied that plaintiffs'' or their grandfather is in possession over the suit land since the time of zamindari. The suit land is a Government land and after abolition of zamindari, the same vested in the State which is reserved for the use of the villagers. It is denied that plaintiffs'' father was adopted by Madan Mohan. The plaintiffs'' are residents of village Sirsoda, district Gwalior whereas the suit land is situated in village Barthara. There is no evidence as regards adoption of father of plaintiffs, Ramsewak by Madan Mohan. There is no ''will'' on record to establish the claim of having succeeded the suit land by plaintiffs. As a matter of fact, after abolition of zamindari, suit land vested in the State in Samvat 2008 (year 1951) and since then continued as such in the revenue record, i.e., kashra panchshala reveals the aforesaid fact. It is further asserted that they are in possession over the suit land for the last 20 years. In fact, the division (buttakon) was manipulated by plaintiffs and, hence the same was rejected. It is further submitted that the orders have been passed on appeal by the Sub Divisional Officer and in revision by Commissioner, Chambal Division, Morena (Supra) as regards settlement of the suit land. With the aforesaid pleadings, defendants 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 comprehensive findings of fact and dismissed the suit. On appeal, first appellate Court has again reappreciated the entire oral and documentary evidence on record. First appellate Court has considered the interlocutory applications filed during pendency of the appeal in paragraphs 11, 12, 13, 14, 15 and 16 and dismissed the suit. The applications under Order VI Rule 17 read with section 151 CPC, Order XLI Rule 27 CPC, etc., were dismissed as there was no explanation offered for not filing the same during pendency of the suit which remained pending since the year 2001 till the year 2007 before the trial Court, i.e., six years. That apart, first appellate Court has also considered relevancy of the documents filed alongwith the aforesaid applications. While dismissing the aforesaid applications on merits, it has been found that plaintiffs have failed to establish that the suit land was in continuous, peaceful and uninterrupted possession of Madan Mohan. Further, the plaintiffs have also failed to prove that their father, Ramsewak was adopted by Madan Mohan as there is no evidence on record. First appellate Court has also found that no ''will'' was brought on record to establish claim that plaintiffs have succeeded the rights and interest of Madan Mohan. As such, claim of the plaintiffs over the suit land through Madan Mohan has been found to be not established. As regards status of Madan Mohan, the first appellate Court has discussed the entire matter thereon from paragraphs 24 onwards and it has been found that suit land is recorded as charnoi land, there is no documentary evidence on record to sustain the claim of plaintiffs as regards long uninterrupted possession over the suit land and there is also no documentary evidence on record to establish the bhumi swami rights of the plaintiffs. It has also been found that the settlement order which was earlier in favour of plaintiffs was cancelled by the Sub-Divisional Officer on appeal and affirmed by the Commissioner in revision (Supra). With the aforesaid findings, first appellate Court affirmed the findings of fact recorded by trial Court and dismissed the suit.

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, 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 both the Courts below have recorded pure findings of fact based on proper appreciation of the entire evidence on record and dismissed the suit. As such, the findings of both the Courts below are fully justified in dismissing the suit of plaintiffs 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 if the defendant/State finds that the plaintiffs/appellants are in possession over the suit land or part thereof, they cannot be dispossessed except by recourse to the procedure established by law.

Appeal sans merit and is dismissed accordingly.

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