Smt. Mahadevi vs Smt. Sarladevi and Another

Rohit Arya, J.—Heard on I.A. No. 159/2011, an application under Order XLI Rule 27 for taking khasra entry of the year 2010-11 on record.

Plaintiff has claimed possession over the suit land for last 40 years. In the trial Court the Khasra Panchshala of year 2009-10 was produced to justify her claim of long continuous, peaceful and uninterrupted possession over the suit land. The claim based on the solitary Khasra Panchshala of year 2009-10 has been rejected by the Court below. Now the Khasra of year 2010-11 has been filed, which in the opinion of this Court, cannot improve the case of plaintiff even if it is taken into consideration as on the basis of this it cannot be held that plaintiff is in possession of the suit land for last 40 years.

Also heard on admission.

This appeal by plaintiff u/s 100 of C.P.C. is directed against the concurring judgment and decree dated 1/11/2010 passed by Fourth Additional District Judge, Gwalior in Civil Appeal No. 18/2010; confirming the judgment and decree dated 1/7/2010 passed by Fifth Civil Judge, Class II, Gwalior in Civil Suit No. 79-A/2009. By the impugned judgment and decree, the plaintiff''s suit for declaration and permanent injunction has been dismissed.

Plaintiff filed a suit inter alia contending that the suit land is admeasuring 3.344 hectare falling in survey No. 276 situated in village Kheria Mirdha, Halka No. 58 Baretha, Tashil and District Gwalior and she is in possession thereof for last 40 years doing cultivation and harvesting crops through her husband Tulsiram. Based upon the aforesaid possession, she has filed an application before the Tahsildar upon which case No. 736/07-08/B/121 was registered. With due advertence to the procedure, publication of notice to the public at large and having received no objection, on the basis of the report furnished by the Revenue Inspector, plaintiff''s name has been recorded on 7/7/2009 in column No. 12 of the Khasra Panchshala. Plaintiff having received the information that the suit land is likely to be given on Patta and she being dispossessed, filed instant suit after serving notice to the State u/s 80 of CPC for declaration of title by adverse possession and permanent injunction.

No written statement has been filed.

The trial Court based on the aforesaid pleading framed issues and allowed parties to lead evidence. Upon critical evaluation of the evidence on record, the trial Court dismissed the suit.

On appeal, the first appellant Court again re-appreciated the oral and documentary evidence on record. The deposition of PW/2 Netram and PW/3 Suraj Singh in support of the plaintiff''s claim of being in possession over the suit land for last 35 years as well as documentary evidence on record have been examined. It is found that on the one hand PW/2 and PW/3 deposed that plaintiff is in possession of the suit land for last 35 years whereas as per deposition of plaintiff''s husband she is in possession of the suit land for last 40 years where he is doing cultivation. As such there is apparent contradictions in the statement of both the witnesses, hence not credit worthy. That apart except Khasra Panchshala of year 2009-10, no other khasra entries have been brought on record to fortify the claim of being in possession over the suit land for last 40 years. As such for want of documentary evidence on record, the first appellate Court has found that plaintiff has failed to establish her claim to be in continuous, peaceful and uninterrupted possession over the suit land for last 40 years. Therefore, the first appellate Court concurring with the findings of the trial Court confirmed the judgment and decree of the trial Court.

Law as regards adverse possession is well settled. 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, .

After having perused the judgments of both the Courts below, this Court is of the view that the entire gamut of matter is in the realm of facts. The findings recorded by both the Courts below are pure findings of facts which in the opinion of this Court do not warrant any interference u/s 100 of CPC. No question of law, much less substantial question of law arises in this appeal. Appeal is therefore, dismissed.