Rampyari vs Sate of MP

Rohit Arya, J.—This appeal u/s 100 CPC by the plaintiffs'' is directed against the concurring judgment and decree dated 04/02/2005 passed in civil appeal No. 45A/2005 by III Additional District Judge, Morena District Morena affirming the judgment and decree dated 11/12/2002 passed in civil suit No. 158/2001 by I Civil Judge, Class-II, Joura, District Morena, plaintiffs'' suit for declaration and permanent injunction has been dismissed.

The original plaintiff instituted the suit inter alia contending that the suit land; agricultural land admeasuring 11 bigha 17 biswa falling in survey No. 2399 situated in village Ghureya Basai, Tahsil Joura, District Morena (hereinafter referred to as ''the suit land'') though in the revenue record is recorded as forest land, however, the same is recorded contrary to the fact that, plaintiff has all along in possession, doing cultivation and harvesting crops. Since the time of zamindari, he is in peaceful, continuous and uninterrupted possession over the suit land. Suit land is not a forest land nor is in the forest area and, therefore, plaintiff claimed to be perfected title by adverse possession. With the aforesaid pleadings, plaintiff prayed for decreeing the suit.

Defendants/State filed written statement and denied plaint allegations. It is submitted that the suit land is a Government land and recorded as forest land in the revenue record. Plaintiff has no concern with the suit land. It is denied that plaintiff has either any right, title or possession over the suit land. Plaintiff is an encroacher and he has been removed from the suit land. With the aforesaid pleadings, defendants''/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 found that there is no documentary evidence on record demonstrating the right, title and interest or possession thereon. Oral and documentary evidence led by plaintiff contains inherent contradictions and inconsistencies is well-discussed in paragraphs 10, 11 and 12 of the impugned judgment by the first appellate Court. 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, 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 plaintiff failed to establish 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 defendants''/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.

Certified copy as per rules.