Sangram Singh vs State of M.P. and Others

Rohit Arya, J.—This appeal by plaintiff is directed against the judgment and decree dated 17/10/2005 in Civil Appeal No. 6A/2005 confirming the judgment and decree dated 17/2/2005 in Civil Suit No. 34A/2005. Plaintiff''s suit for declaration and permanent injunction has been dismissed.

Plaintiff filed a suit inter alia contending that agricultural land falling in survey nos. 434, 440, 441, 443 and 444 admeasuring 2.44 hectare in village Peepalkheda, Tahsil Khaniyadhana (hereinafter referred to as the suit land) has all around been in possession of plaintiff. The aforesaid land has been given on Patta to defendants no. 4 to 9 by the defendant/State without knowledge or hearing to plaintiff.

It is asserted that plaintiff is in continuous, peaceful and uninterrupted possession of the suit land since the time of his ancestors w.e.f. 2/10/1960 and, therefore, has acquired title by adverse possession. As plaintiff apprehended forcible dispossession by defendants no. 4 to 9, therefore, filed the instant suit for declaration and permanent injunction.

Defendants no. 1 to 3 filed written statement and denied plaint allegations. It is submitted that plaintiff or his ancestors have never been in possession of the suit land. Suit land is a government land. There is a policy of the State Government to allot Patta to the landless persons belonging to the Scheduled Castes/Scheduled Tribes Community and accordingly, as per that policy, Patta has been allotted to defendants no. 4 to 9, defendants no. 4 to 9 have also filed separate written statement inter alia contending that at the time of grant of Patta a case No. 98/01-02-Aa-19 was registered and detailed enquiry was held and thereafter Patta was allotted and possession was given to them. Plaintiff was never found to be in possession of the suit land and, therefore, awarding of Patta was in accordance with the procedure laid down in the law. With the aforesaid pleadings, defendants prayed for dismissed of the suit.

Based upon the aforesaid pleadings, trial court framed issues and allowed the parties to lead evidence. The trial court upon detailed analysis of evidence on record dismissed the suit. On appeal, the first appellate court re-appreciated the entire evidence on record and found that there is no evidence to justify the claim of plaintiff to be in continuous, peaceful and uninterrupted possession over the suit land for the last 45 years. Admittedly, the suit land is a government land. In the revenue entries relating to suit land plaintiff has been shown as an encroacher over the suit land. No documentary evidence much less revenue document has been produced by plaintiff showing name of his father or ancestors recorded to be in possession of the suit land to establish claim of plaintiff to be in long possession of the suit land, hence, claim of plaintiff to be in continuous possession over the suit land for last 45 years has not been found to be established. That apart, the first appellate court on the other hand has found that in fact the suit land has been given on Patta to defendants no. 4 to 9, who are in cultivating possession thereof. Such findings have been recorded by the first appellate court based upon the documentary and oral evidence on record, as discussed in para 15 and 16 of the impugned judgment. With the aforesaid, the first appellate court concurring with the findings of the trial court, dismissed the appeal confirming the judgment and decree of the trial court.

Law is well settled as regards adverse possession. It is apposite to state law in this regard as consistently held by the Hon''ble Apex Court and followed by the various High Courts including the jurisdictional High Court.

The facts required to plead and prove adverse possession when the party to a lis set up a plea of acquisition of title adverse possession has to be specific as regards to period and date from which he claims possession and then have to prove that the possession was adequate in continuity, in publicity and in extent to show that his possession was actually visible, exclusive, hostile and continues over the statutory period as contemplated u/s 65 of the Limitation Act to the knowledge of the real owner. Mere physical act of exclusive possession by, itself, cannot justify the claim of adverse possession.

A person pleading adverse possession has no equity in his favour if some one asserts acquisition of title by adverse possession. It, in fact, amounts to trying to defeat the right of true owner and, therefore, burden is very heavy upon such person to prove title by adverse possession and for that he has to plead and establish all the facts necessary as aforesaid to establish his claim.

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 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 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 precario'', 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 the 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 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, .

This Court having gone through the judgments impugned and the record of the case is of the opinion that both the courts below have recorded concurrent finding of facts on critical evaluation of oral and documentary evidence on record. The entire gamut of the matter is in the realm of facts. No question of law much less substantial question of law arises in this appeal warranting interference u/s 100 of CPC. The appeal sans merits is hereby dismissed.