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2011 DIGILAW 749 (MP)

Pannalal v. State of M. P.

2011-07-09

N.K.MODY

body2011
JUDGMENT : This appeal was admitted by this Court for final hearing on the following substantial question of law : Whether in the facts and circumstances of the case learned Court below committed error in not passing a decree in favour of the appellant, while the appellant is in settled possession ? 2. Being aggrieved by judgment dated 02/05/2008 passed by 1st Additional District Judge, Kannod district Dewas in F.A. No. 13-A/2007, whereby the judgment dated 16/02/2006 passed by Civil Judge Class-II in Civil Suit No. 4-A/2004, whereby the suit filed by the appellant was dismissed, was maintained, present appeal has been filed. 3. Short facts of the case are that the appellant filed a suit for declaration and permanent injunction on 26/06/2001 alleging that the appellant is in occupation of land bearing Survey No. 176 and 279 situated at village Panigaon Tehsil Kannod district Dewas. It was alleged that the land was belonging to respondents/State and as per revenue record it is grazing land. Further case of the appellant was that the appellant is in occupation of the land since 1963 and the name of the appellant is recorded as landless labourer in the revenue record. It was alleged that penalty was imposed upon the appellant as encoracher from time to time right from 1964-65. Further case of the appellant was that the suit land was allotted to respondents No. 1 to 3 who are the members of Scheduled Caste and Scheduled Tribe. It was alleged that since the appellant is in settled possession, therefore, appellant has become Bhumiswami on the basis of the hostile title. It was alleged that appellant be declared as Bhumiswami and respondents No. 1 to 3 be restrained from dispossessing the appellant. 4. The suit was contested by the respondents No. 1 to 3 by filing written statement wherein all the plaint allegations were denied. It was denied that the appellant has become Bhumiswami on the basis of hostile title. After framing of issues and recording of evidence, learned trial Court dismissed the suit, against which an appeal was filed, which was also dismissed, hence this appeal. 5. Learned counsel for the appellant argued at length and submits that from the document on record it is evident that appellant is in occupation of the suit land since last so many years. 5. Learned counsel for the appellant argued at length and submits that from the document on record it is evident that appellant is in occupation of the suit land since last so many years. It is submitted that in the facts and circumstances of the case learned Courts below committed error in dismissing the appeal filed by appellant. It is submitted that the appellant was entitled for a decree of declaration on the basis of hostile title. Learned counsel placed reliance on a decision in the matter of Prahlad vs. State of M.P., 2008 (2) MPLJ 589 wherein plaintiff proved long settled possession of Government land from 197-8 to 2004, this Court held that plaintiff is entitled for a decree of perpetual injunction. It is submitted that in the facts and circumstances of the case, appeal filed by the appellant be allowed and the impugned judgment passed by the learned Courts below be set aside. 6. Learned counsel for the respondent Nos. 1 & 2 submit that after due appreciation of evidence this Court has held that the appellant has failed to prove the rights on the basis of hostile title. It is submitted that the findings recorded by the learned Court below are concurrent findings of fact, which requires no interference. It is submitted that the appeal be dismissed. 7. From perusal of the record it is evident that to prove the case appellant has filed the documents Ex.P/1 to Ex.P/24. Ex.P/7 is the revenue record wherein name of father of appellant is recorded in column No. 12 as encroacher in the year 2000. Ex.P/8 to Ex.P/21 are the documents which shows that the appellant and his father have paid penalty from time to time as they were encroacher. Apart from the documentary evidence appellant has examined himself as PW/1, Sumariya PW/2, Narayan PW/3, Mangilal PW/4 and Amarsingh PW/5. While respondent Nos. 1 2 have examined Girwarsingh Chouhan (Patwari) DW/1 and N.K. Sharma (Tehsildhar) DW/2. 8. Apart from the documentary evidence appellant has examined himself as PW/1, Sumariya PW/2, Narayan PW/3, Mangilal PW/4 and Amarsingh PW/5. While respondent Nos. 1 2 have examined Girwarsingh Chouhan (Patwari) DW/1 and N.K. Sharma (Tehsildhar) DW/2. 8. In the matter of State of M.P. vs. Balveer Singh, 2001 (2) MPLJ 644 Full Bench of this Court has held that the right contemplated under Section 57 (2) of the M.P. Land Revenue Code, 195is a right other than the cultivatory right in respect of the land as defined under Section 2 (1) (k) which stands secured in favour of a Bhumiswami, occupancy tenants or a Government lessee as defined under the said Code and this right has to be taken to be confined to the proprietary rights including those rights which vested in the State by operation of law under the enactments in force prior to the coming into effect of the aforesaid Code. There can be no distinction as to the forum with respect to the rights of Bhumiswami acquired after coming into force of the M.P. Land Revenue Code, 1959 and he Bhumiswami rights acquired on the basis of pre-existing rights. The provisions of the Indian Limitation Act will have application only to the extent permissible under Section 2of the said Act and where special period of limitation is prescribed under the provisions of the Land Revenue Code, the same shall prevail over the Limitation Act, 1963 and further the extinguishments of the right under Section 27 of the Limitation Act will not automatically result in the accrual of Bhumiswami rights or any superior right on the ground of adverse possession. The views expressed in the earlier decisions of this Court to the extent of inconsistency shall stand disapproved and overruled with prospective effect and consequently excepting the pending cases the adjudication of any dispute which has attained finality shall remain undistributed and shall not be liable to be reopened. 9. In the mater of Hemaji Waghaji Jat vs. Bhikhabhai Khengarbhai Hary an, AIR 2009 SC 103 Hon'ble Apex Court has held that a plea of adverse possession is not a pure question of law but a blended one of fact and law. 9. In the mater of Hemaji Waghaji Jat vs. Bhikhabhai Khengarbhai Hary an, AIR 2009 SC 103 Hon'ble Apex Court has held that a 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 his 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 the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. Hon'ble Apex Court further held that the law of adverse possession which ousts an owner on the basis of inaction within limitation is rational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. There is therefore, an urgent need of fresh look regarding the law on adverse possession. The Union of India is recommended to seriously consider and make suitable changes in the law of adverse possession. In the matter of Mandal Revenue Officer vs. Goundla Venkaiah, (2010) 2 SCC 461 Hon'ble Apex Court has held that it is impossible for the State and its instrumentalities including local authorities to keep everyday vigilance/watch over vast tracts of open land owned by them or of which they are public trustees. No amount of vigil can stop encroachments and unauthorized occupation of public land by unscrupulous elements, who act like vultures to grab such land, raise illegal constructions and, at time, succeed in manipulating the State apparatus for getting their occupation/ possession and construction regularized. Where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the Court is duty-bound to act with greater seriousness, care and circumspection. Where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the Court is duty-bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State to immovable property and give an upper hand to encroachers, unauthorized occupants or land grabbers. 10. Documentary evidence which has been produced by the appellant itself shows that the possession of the appellant or his predecessor in title was not peaceful and as the penalty was imposed on the appellant from time to time wherein status of the appellant was shown as encroacher. However, undisputediy appellant is in occupation of the suit land. In the facts and circumstances of the case the minimum for which appellant is entitled was decree of permanent injunction. In the facts and circumstances of the case, appeal filed by the appellant is allowed in part and the judgment and decree passed by the learned Courts below are set aside holding that the appellant is entitled for decree of perpetual injunction. However, respondent/State can take possession back from the appellant after adopting due procedure as prescribed under the law. 11. With the aforesaid observations, appeal stands disposed of. No order as to costs.