Ramraj vs State of MP

Rohit Arya, J.—This appeal u/s 100 CPC by the plaintiff is directed against the concurring judgment and decree dated 21/12/2005 passed in civil appeal No. 98A/2005 by District Judge, Sheopur District Sheopur affirming the judgment and decree dated 30/07/2005 passed in civil suit No. 33A/2004 by I Civil Judge, Class-II, Sheopur, plaintiff''s suit for declaration and permanent injunction has been dismissed.

Suit land admeasuring 1 bigha out of 07 bigha 19 biswa is falling in survey No. 195 in village Khatoli district Sheopur and marked as "A, B, C, D" in the map attached with the plaint (hereinafter referred to as ''the suit land''). It is contended in the plaint that the plaintiff had purchased the land falling in survey No. 196 vide the registered sale deed dated 17/08/1979 alongwith the suit land and since then, he is in possession thereon. Patta awarded by defendant/State as regards suit land in favour of defendant No. 4 is illegal. It is further contended that when the defendant No. 4 tried to dispossess the plaintiff from the suit land in the year 1984, a civil suit No. 311A/1984 was filed by the plaintiff and the same was decreed on 29/08/1985. The plaintiff even then sought to be dispossessed from the suit land whereas for the last 24 years, he is in possession thereof. It is also contended that the suit land is being used for agricultural purpose and, therefore, under the provisions of Madhya Pradesh Krishi Prayojan Ke Liye Upayog Ki Ja Rhi Dakhal Rahit Bhoomi Par Bhoomiswami Adhikaron Ka Pradan Kiya Jana (Vishesh Upabandh) Adhiniyam, 1984 (Act No. 30 of 1984), the plaintiff has acquired the title thereon.

Defendant No. 1/State has filed written statement and denied the plaint allegations. It is inter alia contended that the suit land is a charnoi land and plaintiff has no right, title and interest over the same. No one has a right to transfer the suit land by a sale deed. The assertion of plaintiff that he had purchased the suit land is without any basis. It is submitted that defendant/Pannalal, chowkidar has been given the suit land as a service land in view of performance of duty of chowkidar in the area, which is as per law.

Defendants No. 2 and 4 have also filed written statement and denied plaint allegations. It is submitted that the suit land has been given to him as a service land in favour of defendant No. 4, Pannalal as he has performed the duties of chowkidar in the area. Besides, it is submitted that the plaintiff claims to be 25 years old and asserts that he is in possession over the suit land for the last 24 years; further, he claims to have filed a suit in the year 1984 when he was just 08 years which are totally unrealistic situations. That apart, in the said suit, the State Government was not impleaded as a party. The suit land was a charnoi land and, therefore, the alleged order/decree obtained on 29/08/1985 is in fact of no consequence which appears to have been product of collusive suit. Hence, plaintiff cannot gain any advantage out of it.

Based on the aforesaid pleadings, trial Court framed issues and allowed parties to lead evidence. Trial Court dismissed the suit. Before the first appellate Court, the moot question at the centre stage was whether the plaintiff can be said to be in possession over the suit land for the last 24 years while he claimed to be 25 years of age at the time of filing of the suit. Besides, there is no documentary evidence on record showing the plaintiff''s right, title, interest and possession over the suit land. First appellate Court concurring with the findings of the trial Court dismissed the appeal of the plaintiff.

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 the Courts below have recorded a finding of fact based upon critical evaluation of the evidence on record and, therefore not committed any error of law or fact while dismissing the suit of plaintiff. The findings are fully justified and impregnable in nature. Further, in view of the provisions of Order XI Rule 2 read with section 11 of CPC, plaintiff''s suit itself is not maintainable if he claims to have filed a suit in the year 1984 and obtained an order/decree behind back of the State Government. 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.

The appeal sans merit and is dismissed.

Certified copy as per rules.