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2012 DIGILAW 756 (MP)

Sarvajeet Singh v. Vimla Devi

2012-07-26

J.K.MAHESHWARI

body2012
JUDGMENT 1. The defendants have filed this appeal under Section 100 of the Code of Civil Procedure challenging the judgment dated 06.11.1996, in Civil Appeal No.30A/1995, passed by Additional District Judge, Rewa whereby the suit filed by the plaintiffs respondents was decreed and the direction was issued that the appellants shall deliver the peaceful possession within two months of Araji No.49, Area 40 x 13 square feet. 2. Plaintiffs respondents filed a suit that the land of Khasra No.49, Area 2.5 acres is of the ownership of the plaintiff no.2 and they are residing therein. Defendants appellants are residing on the land of Khasra No.40. It is stated that in 1976 encroaching upon the land of plaintiffs of Khasra No.49, Area 40 x 13 square feet the house was constructed. On restraining the plaintiffs it is said by the defendants that they are constructing the house on their own land but on detailed discussions finally it was said that, if it is proved that the said land belongs to plaintiffs then the construction shall be demolished and the possession of the said land be delivered. In 1977 Seemankan was done as per the order dated 24.08.1977, passed in Case No.17A/12, whereby it was found that the defendants have encroached upon the land of the plaintiffs and constructed their house. However, the cause of action arose to them to file the suit. In view of the aforesaid averment, it as requested to deliver the possession on the suit land, by the defendants. 3. The defendant no.2 was exparte and defendant no.1 has filed his written statement and denied all the plaint allegations. It is said that the suit land belonging to defendants, of Khasra No.40 is the ancestral property and the house has been constructed on the said land, however, the plea so taken by the plaintiffs of encroachment on the land of Khasra No.49 and of construction of the house is without any basis. In an alternative it is prayed that the land of Khasra No.40 is the ancestral land whereupon the house has been constructed and defendants are in possession since more than 12 years, in the knowledge of plaintiffs, thus, by virtue of adverse possession they have became the absolute owner of the land, in case, any encroachment of defendants has been established by the plaintiffs. 4. 4. The learned Trial Court dismissed the suit as barred by limitation recording the finding that the suit land is the ancestral land of the defendants, whereupon the house is constructed. The suit for possession is required to be filed within 12 years, which has not been filed by the plaintiffs, however, the defendants have perfected their title by virtue of adverse possession. 5. On filing an appeal by the plaintiffs and relying upon the report of the Revenue Inspector Ex. P2, P3, P4 and P5 it is found that the land of the plaintiffs of Khasra no.49 has been encroached upon to the extent of 40 x 13 square feet by the defendants in 1976 and the house has been constructed thereon. However, decreeing the suit direction to deliver the possession on the said piece of land against plaintiffs was issued. 6. This appeal was admitted on 13.02.1997, on the following substantial question of law:- “Whether on the facts and in the circumstances of the case, the first appellate Court was justified in holding that the appellants have not perfected their title by adverse possession?” 7. As per the findings recorded by the Lower Appellate Court it is apparent that looking to the Seemankan report and the documents which are available on record Ex. P2 to Ex. P6 it is apparent that on encroaching upon the land in the year 1976 a Seemankan was done on the spot on the request made by the plaintiffs, wherein the encroachment of the land of Khasra No.49 was found. The plaintiffs in their plaint have specifically pleaded that when the defendants were encroaching the disputed land in 1976 they were restrained calling various persons of the locality, however, it was assured by the defendants that if the land was found of the plaintiffs they will deliver the peaceful possession later on. The aforesaid testimony has remained in ocular. In such a circumstance, the finding recorded by the trial Court dismissing the suit as barred by limitation and the perfection of the title of the defendants on the basis of adverse possession was set aside. 8. Learned counsel appearing on behalf of the appellants has strenuously urged that the entire suit was contested on the basis of the testimony of the power of attorney holder namely Shivmurti though the land was of Smt. Vimla Devi, mother of the said power of attorney. 8. Learned counsel appearing on behalf of the appellants has strenuously urged that the entire suit was contested on the basis of the testimony of the power of attorney holder namely Shivmurti though the land was of Smt. Vimla Devi, mother of the said power of attorney. However, the testimony of the power of attorney holder can be relied to the extent of his personal knowledge and the suit cannot be decreed. It is further contended that the plaintiffs are unable to establish that the suit land was encroached upon in 1976. In fact the defendants are having their ancestral house on the adjacent land of Khasra no.40, thus, in such a circumstance, looking to the evidence so brought on record it is clear that the house on the suit land was constructed prior to more than 15 years, within the knowledge of the plaintiffs, therefore, by virtue of adverse possession they have become absolute owner on the suit land. The trial Court has rightly consider the statement of the plaintiffs' witnesses as well as defendants' witnesses and recorded the finding in favour of the defendants but the lower Appellate Court merely on the basis of presumption set aside such finding decreeing the suit. In such a circumstances the finding of fact so recorded by the Lower Appellate Court appears to be perverse, which may be set aside. 9. After hearing learned counsel appearing on behalf of the appellants and on careful consideration of the pleadings of the plaint it is clear that in 1976 when the defendants started to raise construction on the land on Khasra No.49 the plaintiffs have restrained them. As per the statement of power of attorney it is clear that various persons of the Village were called upon to restrain such construction. At that time it was assured by the defendants that if the land in question was found to be of the plaintiffs they will deliver the peaceful possession of the said land. Thereafter, the Seemankan was performed on the application of the plaintiffs, on their instance and notice to that Seemankan report was given to the defendants. As per the report Ex. P6 it is clear that the defendants have refused to signed on the proceedings of Seemankan. In the said Seemankan report encroachment of the defendants was found to the extent of 50 x 13 = 650 square chains. As per the report Ex. P6 it is clear that the defendants have refused to signed on the proceedings of Seemankan. In the said Seemankan report encroachment of the defendants was found to the extent of 50 x 13 = 650 square chains. The Seemankan report has been relied upon by the Lower Appellate Court while recording the finding of encroachment of the defendants. It is not in dispute that the land of Khasra No.40 whereupon the ancestral house of the defendants is there and the land of Khasra No.49 which belongs to the plaintiff are adjacent. The plea of having the ancestral house on the land of Khasra No.40 is not in dispute but the dispute arose when the defendants started to encroach upon the land of the plaintiff of Khasra No.49, which is adjacent to it. It was restrained in 1976 by the plaintiffs and the Seemankan was performed in 1977. As per the Seemankan report the encroachment of the defendants was found on the land of Khasra No.49 which belongs to the plaintiffs, thus, relying upon the said Seemankan report the Lower Appellate Court has rightly discarded the plea of adverse possession setting aside the finding so recorded by the trial Court on the said issue. 10. In view of the foregoing facts it is clear that the suit filed by the plaintiffs is in the year 1979. The encroachment has been made by the defendants in 1976 and after his assurance of removal of the said encroachment the Seemankan was performed in 1977. Thereafter, within two years the suit has been filed. In such a circumstance, the finding recorded by the trial Court dismissing the suit as barred by limitation is unsustainable and the lower Appellate Court has rightly set aside such finding. At this stage the argument so advanced by the learned counsel Shri Baghel that the statement of the power of attorney cannot be relied upon, is of no substance for a simple reason that the power of attorney holder is a son of the plaintiff no.1, who is old aged and Pardanasheen lady, however, as per the knowledge which is to the son of the plaintiff no.1, he has deposed before the Court. Thus, if any, statement is made by the power of attorney holder on the basis of his personal knowledge that can be relied upon. Thus, if any, statement is made by the power of attorney holder on the basis of his personal knowledge that can be relied upon. The aforesaid guidance may be taken from the judgment of the Apex Court in the case of Man Kaur (Dead) by LRs Vs. Hartar Singh Sangha, reported in [ (2010) 10 SCC 512 ], which has been considered by this Court in the Judgment delivered on 15.03.2012, in First Appeal No.368/2001 (Vinod Agrawal & others Vs. Bharat Kumar Lathi & others) and other five appeals. In such a circumstance the argument so advanced by the learned counsel appearing on behalf of the appellants is hereby repelled. In view of the foregoing, in the considered opinion of this Court, the lower Appellate Court has not committed any error in decreeing the suit filed by the plaintiffs setting aside the finding of adverse possession so recorded by the trial Court. Accordingly, the substantial question of law so framed is answered in negative. In the facts and circumstances of the case the defendants appellants shall bear the cost of the plaintiffs respondents.