Vrindawan vs The State of M.P.

Rohit Arya, J.—Heard.

This appeal by plaintiff u/s 100 of C.P.C. is directed against the concurring judgment and decree dated 31/1/2005 passed by Second Additional District Judge, Vidisha, in Civil Appeal No. 74-A/2004; confirming the judgment and decree dated 25/10/2004 passed by First Civil Judge, Class II, Vidisha in Civil Suit No. 28-A/1999. 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 suit land as described in para 2 of the impugned judgment is in his possession. Prior to him, it was in possession of his ancestors and continued to be in his possession after the death of his father for last 50 years. Hence, on the basis of long uninterrupted, peaceful and continuous possession, he has perfected title by adverse possession. It is submitted that Patwari without notice and without opportunity of hearing to the plaintiff has recorded the name of State Government in column Bhoomiswami and being threatened of forcible dispossession, the plaintiff has filed an application u/s 57 of M.P., which has been dismissed. On appeal to the Upper Collector, matter has been remanded back. However, apprehending forcible dispossession, after service of notice u/s 80 of CPC, the instant suit was filed for declaration and permanent injunction.

There is no written statement filed by the State Government.

On the basis of aforesaid pleadings, trial Court framed issues and allowed parties to lead evidence. Upon due advertence to the averments in the plaint, trial Court dismissed the suit.

On appeal, the first appellate Court again re-appreciated the evidence on record as regards the claim of the plaintiff to be in possession of the suit land for last 50 years and therefore, had perfected title by adverse possession. The first appellate Court while examining the oral evidence of PW/1 Vrindavan, PW/2 Lalla and PW/3 Chironji has found that plaintiff Vrindavan himself does not know the area of land involved in respective survey numbers as his submission is to the effect that one field is of 3 bigha, another of 3 bigha and last about 5-6 bigha. PW/1 has not produced any documentary evidence to show that Zamindar has given suit land on Patta to the father of plaintiff. In para 10 he has admitted that there was an oral Patta but he is not aware before whom and when the Patta was granted. Plaintiff though claimed to be in possession over the suit land ever since 2006-2007; however, there is no revenue record to demonstrate that since when the plaintiff is in possession of the suit land. There is further admission that 5-6 years ago, preceding the date of filing of suit, the plaintiff was fined by the revenue department due to encroachment over the suit land. On the other hand, the claim is made on the basis of adverse possession. Further it has been found that depositions of witnesses suffer from inherent contradictions and not worth of any credit to justify the claim of adverse possession. Upon perusal of the revenue record filed, the first appellate Court has in detail in para 17 onwards has dealt with each and every Khasra entries and recorded the finding that in stray entries, in revenue records the plaintiff''s possession has been found as encroacher, in some khasra entries plaintiff''s name has not been recorded, instead name of State Government has been recorded in column of Bhoomiswami and therefore, it has been found that even on the basis of revenue records, the claim of the plaintiff of continuous possession over the suit land to claim adverse possession against the State for 30 years is not made out. Accordingly 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, , 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. However, this Court directs that the if the plaintiff is in possession over any part of the suit land, even if as an encroacher, he may not be evicted from the suit land except in accordance with the procedure established by law.