Rajkumar vs Prakash

Rohit Arya, J.—This appeal by the plaintiff u/s 100 CPC is directed against the concurring judgment and decree dated 16/04/2007 passed in civil appeal No. 190A/2005 by Additional District Judge, Basoda District Vidisha affirming the judgment and decree dated 17/06/2005 passed in civil suit No. 1A/2005 by Civil Judge, Class-I, Basoda, plaintiff''s suit for declaration and permanent injunction has been dismissed.

Plaintiff claimed to be in possession over an agricultural land admeasuring min area 0.627 hectare out of 0.857 hectare towards north side falling in AARAJI No. 277/1 and area 0.533 hectare falling in survey No. 350 situated in village Madiya Semra, district Vidisha (hereinafter referred to as ''the suit land'') though recorded as Government land. Plaintiff claimed to be in possession over the suit land for the last 30 years since the time of zamindari and, therefore, acquired status of bhumi swami. With the aforesaid pleadings, prayed for decreeing the suit.

Defendant No. 3/State filed written statement and denied plaint allegation. It is submitted that the suit is based on concocted facts and the plaintiff has never been in possession over the suit land, much less, 30 years period as claimed. 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 comprehensive findings of fact and dismissed the suit. On appeal, first appellate Court has again reappreciated the entire oral and documentary evidence on record and particularly paragraph 9 of the impugned judgment whereupon after careful perusal of the revenue record, it is found that the suit land has been recorded as beed land. That apart, there is nothing on record to suggest that plaintiff or plaintiff''s ancestors are in possession over the suit land since the time of zamindari. No revenue record has been produced showing name of plaintiff or father of plaintiff as bhumi swami over the suit land o establish his right as sought for. First appellate Court has also examined the oral evidence in that behalf and depositions of plaintiff''s witnesses as discussed in detail in paragraph 13 of the impugned judgment. 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, 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, : 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 the suit land is beed land vested in the State Government, as per revenue record, the claim of adverse possession over the suit land for the last 30 years has not been established by oral and documentary evidence to claim title by adverse possession against State Government. As such, the findings of both the Courts below are fully justified in dismissing the suit of plaintiff 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 plaintiff/appellant is in possession over the suit land or part thereof, he cannot be dispossessed except by recourse to the procedure established by law.

Appeal sans merit and is dismissed accordingly.

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