Vidyabharti vs Jagdish and Others

Rohit Arya, J.—This appeal by plaintiff is directed against the judgment and decree dated 02/03/2006 in Civil Appeal No. 37A/2005 confirming the judgment and decree dated 20/1/2005 in Civil Suit No. 66A/2003. Plaintiff''s suit for declaration and permanent injunction has been dismissed.

Suit land is an agricultural land falling in survey No. 1130 (old survey No. 770) admeasuring 1.20 in village Sahrana. Admittedly, the suit land was a Charnoi land and thereafter, the same has been given on Patta to defendants no. 1 to 4. Plaintiff filed the suit inter alia contending that since the time of his ancestors the suit land is in possession of his family. Vide order dated 18/8/1995 of the Settlement Officer in case No. 1/94-95-Aa-60 in Area 1.04 name of plaintiff has been shown to be in possession doing cultivation and likewise in Khasra Panchshala of Samvat 2053 to 2057 in Kaifiyat column No. 12 the same entry has been made and, therefore, plaintiff claims that his possession is well established over the suit land and justifies his title over the suit land. As defendants no. 1 to 4 with the help of defendant no. 5 are trying to dispossess the plaintiff, therefore, plaintiff brought the instant suit for declaration and permanent injunction.

Defendants no. 1 and 2 filed written statement and denied plaint allegations. It is inter alia submitted that in fact the suit land has been given on Patta to defendants no. 1 to 4 and they are in possession thereof holding Bhoomiswami rights. Entries in that behalf have also been made in the revenue records of Samvat 2059 onwards. It is further submitted that in fact plaintiff''s possession over the suit land is only of one year i.e. in Samvat 2051 that too as an encroacher and thereafter he has not been shown in possession even as an encroacher. Defendant no. 5 also filed written statement and denied that in revenue records of Samvat 2049 to 2053 in column No. 12 plaintiff''s name is endorsed or recorded. It is further asserted that plaintiff is an encroacher over the suit land having no right or title over the suit land. 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. Upon critical evaluation of evidence on record trial court found that plaintiff failed to establish that he is in continuous possession for the last 30 years over the suit land to claim title by adverse possession and accordingly, dismissed the suit. On appeal, the first appellate court re-appreciated the oral and documentary evidence on record and found in para 9 to 13 of the impugned judgment that revenue entries in Khasra Panchshala produced before the Court do not justify claim of plaintiff as regards continuity of possession over the suit land for the last 30 years. Even oral evidence led by plaintiff is not consistent and suffers from inherent contradictions. As a matter of fact, plaintiff has only produced Khasra Panchshala of three years to show his possession over the suit land, which do not justify possession of plaintiff over the suit land for the last thirty years. Accordingly, the first appellate court found that there is no evidence to justify claim of plaintiff to be in continuous, peaceful and uninterrupted possession over the suit land for the last 30 years. 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 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. 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, he shall not be dispossessed except by adhering to due process of law. The appeal sans merits is hereby dismissed.