Smt. Surajmukhi vs Union of India and Others

Rohit Arya, J.—This appeal by plaintiff is directed against the judgment and decree dated 17/05/2010 in Civil Appeal No. 1A/2010 confirming the judgment and decree dated 02/02/2010 in Civil Suit No. 31A/2009. Plaintiff''s suit for declaration and permanent injunction has been dismissed.

Plaintiff filed a suit for the aforesaid relief inter alia contending that plaintiff is in occupation of a shop (Gumti) situated in Patwari Halka No. 53 falling in part of survey No. 758, village Jaderua Kala as a tenant. It is further submitted that in the surrounding area of the shop there is a hut (Jhopadi) with room and tin-shed etc. where she lives and there is also a temple of Bhairoji (hereinafter referred to as suit property). She submitted that she has raised aforesaid construction viz. shop etc. with the permission of defendants. It is submitted that earlier her father-in-law, namely, Gangaram remained in possession of the suit property marked as ''A'' and ''B'' in the map annexed with the plaint and after his death, she is in continuous possession of the suit property and because of continuity of possession for the last 38 years after the death of her father-in-law, she has acquired title by adverse possession. As defendant no. 2 is trying to obstruct the right of way and defendant no. 3 is raising boundary wall overlapping the marked suit property whereas they have no concern with the same, plaintiff had brought a suit for declaration and permanent injunction restraining defendants from obstructing the right of way and from raising boundary wall overlapping the marked suit property.

Defendants no. 1 and 2 filed written statement and denied plaint allegations specifically the claim of plaintiff that the alleged suit property is in her possession for last 38 years. It is submitted that in fact the suit property is a government land. Area marked as ''A'' in the plaint map is the residence of an employee of the Post Office Department and area marked as ''B'' is the property of Telephone Department, where employees'' quarters were constructed and one quarter was in possession of the husband of plaintiff while he was in service. The same was vacated in the year 1999. It is submitted that there is no Gumti, as claimed by the plaintiff. With the aforesaid averments, the suit was prayed to be dismissed.

Defendant No. 3 also filed written statement denying plaint allegations and submitted that plaintiff is not in possession of the suit property. As regards area marked as ''C'', it is submitted that there is no right of way of plaintiff on the aforesaid area. It is a government land. With the aforesaid pleadings, defendant no. 3 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 has found that plaintiff has failed to establish her title or possession over the suit property. There is no evidence on record to justify her claim of title and also there is no evidence on record that possession of plaintiff over the suit property is legal. Accordingly, dismissed the suit. On appeal, the first appellate court re-appreciated the entire evidence on record and found that there is no documentary or oral evidence on record to demonstrate or establish title of the plaintiff over the suit property. Besides, the revenue records produced by the plaintiff do not establish claim of plaintiff that she is in continuous possession over the suit property for last 38 years. It is also found that the suit property has never been recorded to be of the ownership of plaintiff. With the aforesaid findings, the first appellate 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 proper 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. Before parting with the judgment, it is considered apposite to observe that in case plaintiff is found to be in possession of the suit property or part thereof, she shall not be dispossessed except by adhering to due process of law. The appeal sans merits is hereby dismissed.