Suresh vs State of M.P.

Rohit Arya, J.—Heard on the question of admission.

The instant appeal by appellant/plaintiff u/s 100 of C.P.C. is directed against the concurring judgment and decree dated 30/11/2009 passed by Fourth Additional District Judge (Fast Track Court), Shivpuri (M.P.) in Civil Appeal No. 9-A/2009; confirming the judgment and decree dated 17/8/2009 passed by Civil Judge, Class-II, Pohari, District Shivpuri in Civil Suit No. 20-A/2008. Plaintiff''s suit for declaration and permanent injunction has been dismissed.

Plaintiff filed instant suit for declaration and permanent injunction pleading that the suit land was given on Patta to him vide order dated 16/9/1996 passed in case No. 50A/96-A-19 by Tahsildar which was cancelled by the order passed by SDO dated 22/6/2001 in case No. 71/96-97-A-Ma. Plaintiff claimed that suit land admeasuring 0.95 hectare situated in survey No. 701/4 of village Vamanpura, Pargana Pohari, District Shovpuri by virtue of aforesaid order of the Tahsildar dated 16/9/1996 was given to him on Patta and thereafter Batankan was also done and he become Bhumiswami in respect of the suit land and same was registered in the revenue records. The plaintiff averred that as the Patta was granted under the Revenue Book Circular, the order passed by the SDO on 22/6/2001 cancelling the Patta granted to the plaintiff in case No. 71/96-97-A-Ma. is without any authority and jurisdiction. The revision filed by the plaintiff against the said order before the Commissioner (Revenue) was rejected on 25/4/2005 illegally and further revision to Board of Revenue has also been rejected illegally on 31/5/2006 in case No. 2171/(1)/05. As a consequence of the order passed by the Revenue Courts, the plaintiff''s name has been deleted from the revenue records in respect of suit land. Plaintiff claims to be doing cultivation over the suit land and harvesting crops thereon. He was landless person and by virtue of the order passed by Tahsildar after following all due formalities Patta was granted to him.

Defendant/State filed written statement denying all the plaint allegations. It is submitted that Patta granted in favour of the plaintiff has been cancelled by SDO vide order dated 22/6/2001 and this order has been affirmed by the Revisional Court as well as Board of Revenue. Entire proceedings is in accordance with law. It is denied that the plaintiff is in possession of the suit land and harvesting crops thereon.

On aforesaid pleadings, trial Court framed issues and allowed parties to lead evidence. Trial Court upon comprehensive analysis of the evidence on record, dismissed the suit.

On appeal, the first appellate Court again re-appreciated the entire evidence on record. It has been found that Patta granted to the plaintiff in fact was cancelled by the higher revenue authorities which stood confirmed by order of Revisional Court as well as by the Board of Revenue. Upon perusal of the orders passed by revenue Courts, it has been found that Patta was cancelled as the same was not granted in accordance with law and further the procedure prescribed for grant of Patta was not followed. Plaintiff''s suit has also been found to be barred in view of Section 257(cha) of the M.P. Land Revenue Code. Plaintiff has further stated that he is in possession of the suit land for last 12 years and therefore, perfected title by adverse possession. This issue has been also been discussed by the first appellate Court in para 13 and it has been found that plaintiff has failed to establish his peaceful, continuous and uninterrupted possession over the suit land for last 12 years hostile to the defendant/State.

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, , in para 11 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.