Ratan S/o Bhavana v. Atama Ram S/o Nandram and M. P. State through Collector
2006-05-03
A.K.SHRIVASTAVA
body2006
DigiLaw.ai
Judgment ( 1. ) THIS second appeal has been directed against the judgment and decree passed by the Trial Court decreeing the suit of plaintiff/respondent No. 1 and the judgment of the First Appellate Court affirming the judgment and decree passed by the trial court. ( 2. ) THE suit property is agricultural land, the description whereof is given in the plaint According to the plaintiff, in the year 1975 he submitted an application to Tahsildar for demarcation of the disputed land. On 13. 12. 975 when the demarcation took place, it was found that 50 decimal land of plaintiff is being possessed by the appellants No. 2 to 5 and rest 15 decimal land is in possession of appellant No. 1 Ratan. The plaintiff requested them to deliver the possession but they denied as a result of which the plaintiff filed an application under Section 250 of M. P. Land Revenue Code, 1959 before the Revenue Court which was dismissed. The appeal was also dismissed by the Sub Divisional Officer and hence the present suit has been filed for possession and by amending the plaint, a decree of declaration of Bhumiswami right has also been sought by the plaintiff. ( 3. ) THE defendants refuted the averments by filing written statement and pleaded that the father of the plaintiff, namely, Nandram and father of defendant Pannalal were cousins and the suit land was ancestral land. Since Nandram was elder brother, therefore, his name was got mutated in the revenue record. After the death of Pannalal and Nandram in the year 1964 there was an oral partition under which the disputed land fell in the share of defendants No. 2 to 5. Thus they are the Bhumiswami of the suit land. An alternative plea of adverse possession has also been taken by the defendants. ( 4. ) THE Trial Court on the basis of the pleadings placed on record framed necessary issues and after recording the evidence decreed the suit holding that the possession of defendants on the suit land is illegal. The trial court further came to hold that the plea set up by the defendants that in the year 1964 the disputed land fell in their share on account of oral partition, is not at all proved.
The trial court further came to hold that the plea set up by the defendants that in the year 1964 the disputed land fell in their share on account of oral partition, is not at all proved. But, according to the trial court the land in question was joint family property and it was in the joint possession of the parties in the year 1964. ( 5. ) FEELING aggrieved by the judgment and decree passed by the Trial Court declaring the suit of plaintiff, defendants preferred first appeal before First Appellate Court which has been dismissed by the impugned judgment and decree. Hence this second appeal has been filed by the defendants. ( 6. ) THIS Court on 10. 9. 1996 admitted this second appeal on the following substantial questions of law: (1) Whether on the facts and in the circumstances of the case, the appellants have perfected their title over the suit land by adverse possession ? (2) Whether on the facts and in the circumstances of the case, the Court below was justified in holding that though the appellants are in possession of the land for more than 12 years but as their possession came to the knowledge of the plaintiff within 12 years of the suit, the suit is within limitation? ( 7. ) AFTER having heard learned Counsel for the appellants and perusing the record, I am of the view that this appeal deserves to be dismissed. Regarding substantial questions of law No. 1 and 2: ( 8. ) ON going through the averments made in the plaint, it is gathered that in the year 1975 when the plaintiff submitted an application for demarcation and the same was made on 13. 12. 1975, at that juncture it came into the knowledge of the plaintiff that on Khasra No. 60/2 area 0. 65 decimal is in possession of appellants and on 0. 50 decimal, defendants No. 2 to 5 are in possession. On going through the averments made in the written statement and particularly the findings of the trial court in regard to issue No. 5, it is gathered that the plea of adverse possession has not at all been proved. ( 9. ) ON going through the written statement, it is found that necessary ingredients in regard to constitute plea of adverse possession are not pleaded.
( 9. ) ON going through the written statement, it is found that necessary ingredients in regard to constitute plea of adverse possession are not pleaded. It is well settled in law that mere long possession would not become adverse and a party cannot perfect his title by adverse possession on the basis of long possession. The trial court as well as the First Appellate Court after appreciating and marshalling the oral and documentary evidence came to hold that the defendants have not perfected their title by adverse possession. The findings arrived at by the two Courts below are pure findings of fact and cannot be assailed in second appeal. The trial court while deciding issue No. 4 on the basis of the oral and documentary evidence came to hold that there was no oral partition in the year 1964 as set up by the defendants. ( 10. ) I have given my anxious and bestowed consideration to the reasonings assigned by the two Courts below and I find them to be quite cogent as they are based on appreciation of evidence. The findings arrived at are pure finding of fact and cannot be assailed in the second appeal. ( 11. ) THE decision of Kalika Prasad and Anr. v. Chhatrapal Singh (Dead) By Lrs. AIR1997 SC 1699 , JT1997 (1 )SC 372 , 1997 (1 )SCALE207 , (1997 )2 SCC544 , [1996 ]supp10 SCR371 placed reliance by learned Counsel for appellants is not applicable in the present facts and circumstances of the case. Moreover, in the said decision it was held that the respondent having remained in possession, without any interruption, for over 12 years, he remainted in possession in assertion of his own right, therefore he perfected his title by prescription. But in the present case, the plea of adverse possession has not been found to be proved by the two Courts below on the basis of appreciation of evidence and therefore the decision of Kalika Prasad (supra) is not applicable. The decision of Ramaswamy Kalingaryar v. Mathayan Padavachi AIR1992 SC 115 , (1992 )1 MLJ19 (SC ), 1992 Supp (1 )SCC712 is in regard to Section 100 CPC wherein the Supreme Court has held that the finding in favour of certain party as to his being in sole possession of land is a finding of fact. There is no dispute to the said proposition.
There is no dispute to the said proposition. But the question is whether merely defendants were possessing the land in question would constitute or confer any right of adverse possession in him. I have already held hereinabove that the adverse possession has not been proved. The decision of Babu Khan and Ors. v. Nazim Khan (Dead) by L. Rs. and Ors. AIR2001 SC 1740 , JT2001 (5 )SC 1 , 2001 (3 )SCALE363 , (2001 )5 SCC375 , [2001 ]2 SCR1199 is also not applicable in the present case because in the present case it is not within the knowledge of the plaintiff earlier to 1975 that the defendants are possessing his land. There is a pure finding of fact arrived at by the two Courts below that plaintiff came into the knowledge that the defendants are possessing the land in question only in the year 1975. This is pure finding of fact and cannot be assailed under Section 100 CPC. ( 12. ) SUBSTANTIAL questions of law No. 1 and 2 are answered accordingly. Resultantly, this appeal is found to be devoid of any substance and the Same is dismissed.