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2013 DIGILAW 1188 (PAT)

State of Bihar v. Karu Chaudhary

2013-09-27

MUNGESHWAR SAHOO

body2013
MUNGESHWAR SAHOO, J.:–The defendants-appellants-appellants have filed this Second Appeal against the judgment and decree dated 23.02.1999 passed by the learned 6th Additional District Judge, Bhagalpur in Title Appeal No.96 of 1997 whereby the learned Lower Appellate Court dismissed the appeal and confirmed the judgment and decree dated 26.07.1997 passed by the learned 1st Additional Munsif, Bhagalpur in Title Suit No.174 of 1993. 2. The plaintiffs-respondents filed the aforesaid suit praying for declaration of title on the suit property and for making correction in the khatiyan in which the name of appellant no.2 i.e. Chikitsa Mahavidyalaya has been entered. A relief was also claimed for permanent injunction restraining the State of Bihar from interfering the possession of the plaintiffs over the suit property. The plaintiffs claimed the aforesaid relief alleging that the plaintiff is residing in the suit property after constructing a house since last 60 years i.e. from his fathers, as such, the plaintiffs have acquired title by adverse possession. The encroachment case was filed against the plaintiffs wherein after hearing the plaintiffs, the concerned authorities declared the plaintiffs as encroacher. Subsequently, the Circle Officer stayed the operation of the order because suit was filed by the plaintiffs before the court for the declaration of title on the basis of adverse possession. 3. The State of Bihar and Chikitsa Mahavidyalaya, the appellant filed contesting written statement alleging that the suit property has been acquired by the State of Bihar for construction of the medical college. The plaintiff’s encroachment was removed but subsequently, he again encroached the land and residing there. All other allegations made by the plaintiffs were denied by the State of Bihar. 4. The trial court decreed the plaintiff’s suit recording the finding that the defendants failed to prove that the suit property was acquired by the State of Bihar for the purpose of construction of medical college. The trial court also recorded clear finding that the plaintiff is residing in the suit property since many years as such, has acquired title by adverse possession. Accordingly, the plaintiff’s suit was decreed. The defendants filed title appeal before the Lower Appellate Court. The Lower Appellate Court confirmed the finding of the trial court and dismissed the appeal. 5. The trial court also recorded clear finding that the plaintiff is residing in the suit property since many years as such, has acquired title by adverse possession. Accordingly, the plaintiff’s suit was decreed. The defendants filed title appeal before the Lower Appellate Court. The Lower Appellate Court confirmed the finding of the trial court and dismissed the appeal. 5. At the time of admission on 16.07.2002, the following 3 substantial questions of law were formulated:– “(A) Whether the courts-below are legally justified in decreeing the suit in favour of the plaintiff-respondent only on the ground of adverse possession, when the land in question under encroachment was removed by the order of the proper authority on 17.03.1993, and also that the land was acquired under Land Acquisition Act for the establishment of Medical College? (B) Whether it was within the jurisdiction of the courts-below to examine as to whether or not the land encroachment case was initiated and decided in accordance with law? (C) Whether the suit was barred under the provisions of Land Encroachment Act? 6. The learned S.C.22 appearing on behalf of the appellants submitted that both the courts below wrongly recorded the finding that the defendants have acquired title by adverse possession without there being any pleading and evidence to the said effect and that the courts below wrongly assumed that the property was never acquired by the State of Bihar for medical college because in the khatiyan itself, the name of the appellant no.2 is recorded. According to the learned counsel, for acquiring title by adverse possession, the plaintiff is required to prove the ingredients for constituting the adverse possession but in the present case, the plaintiff has only pleaded in the plaint that he is continuing in possession for last 60 years i.e. since the time of his father. In support of his contention, the learned counsel relied upon AIR 2009 Supreme Court 103(Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan and Ors.). On the strength of this decision and submission, the learned counsel submitted that the substantial questions of law formulated be answered in favour of the appellants and plaintiff’s suit be dismissed. 7. On the other hand, the learned senior counsel, Mr. Bhikhabhai Khengarbhai Harijan and Ors.). On the strength of this decision and submission, the learned counsel submitted that the substantial questions of law formulated be answered in favour of the appellants and plaintiff’s suit be dismissed. 7. On the other hand, the learned senior counsel, Mr. Rajendra Narayan appearing on behalf of the respondents submitted that the defendants pleaded that the property was acquired by the State of Bihar for the purpose of construction of medical college, therefore, it was the onus on the part of the defendants-appellants to prove this fact categorically but they failed to prove this fact that the property was acquired by the State of Bihar. Both the courts below on the basis of the evidences oral and documentary produced by the plaintiffs categorically held that the plaintiff is in possession of the property since long as such, has acquired title by adverse possession. In such view of the matter, the finding recorded by both the courts below regarding the acquisition of title by adverse possession cannot be interfered with in exercise of jurisdiction under Section 100 C.P.C. The plaintiffs filed the suit for correction of the name of the medical college in the khatiyan only. Unless the defendants-appellants proved that the property is acquired in the name of the medical college, the entry of the name of appellant no.2 in khatiyan is wrong. Therefore, the authorities while preparing the khatiyan did not examine the fact of possession of the plaintiff who is continuing in the property since more than 60 years and has acquired title by adverse possession. On this ground, the khatiyan was required to be corrected. The learned counsel further submitted that they pleaded in the plaint that in fact, the father of the plaintiff has taken settlement from the ex-landlord and since the taking of settlement from the ex-landlord the plaintiff is continuing in possession as such, has acquired title by adverse possession. 8. The plaintiffs in the plaint at paragraph 6 has clearly pleaded that the plaintiff is residing on the plot no.276 fully described at the foot of the plaint for several decades. The plaintiff previously lived in hutment and now house of 0120 hectares with brick wall and tiles house along with sahan out of 3250 sq. feet within fencing fully described in schedule below at the foot of the plaint. The plaintiff previously lived in hutment and now house of 0120 hectares with brick wall and tiles house along with sahan out of 3250 sq. feet within fencing fully described in schedule below at the foot of the plaint. These lands are cut piece land of the big acquired land. During zamindari period, the Harijans were orally permitted to live in such lands. According to the written statement, the property is the acquired land of the State of Bihar. In view of the pleading at paragraph 6 and in view of the written statement of the State of Bihar, now it becomes admitted fact that suit land is the cut piece land of the big acquired land. There was no issue before the court below regarding as to whether suit property is the acquired land or not. It was not the dispute between the parties that the State Govt. has acquired the suit property or not for the purpose of construction of the medical college. The only question was as to whether the plaintiff has acquired title on the suit property by adverse possession. However, from perusal of the judgment of the courts below, it appears that the courts below have recorded the finding that the defendants failed to prove that the property has been acquired by the State of Bihar without considering the pleadings of the parties and without considering the fact that it was not the dispute between the parties. The plaintiffs filed the suit for declaration of title and the defendants filed the written statement alleging that it is the property of the State of Bihar. There was never any question or controversy between the parties as to whether the property is acquired property of the State of Bihar for the medical college or not. 9. In the said paragraph, the plaintiff has clearly averred that the ex-landlord orally permitted to live in such land, therefore, the plaintiff admits that he was in permissive possession of the property. Can it be said that a permissive possession will convert to an adverse possession? From perusal of the plaint, it appears that the only averment made in the plaint is that since last 60 years, the plaintiff is continuing in possession of the property. The plaintiff in paragraph 4 after amendment clearly admitted that in land encroachment case no.18 of 1992-93, he was declared an encroacher of the land. From perusal of the plaint, it appears that the only averment made in the plaint is that since last 60 years, the plaintiff is continuing in possession of the property. The plaintiff in paragraph 4 after amendment clearly admitted that in land encroachment case no.18 of 1992-93, he was declared an encroacher of the land. The plaintiff also admitted that the property is recorded in the name of medical college i.e. appellant no.2 in the khatiyan. From the above facts, it is clear that the property has not been abandoned by the State Govt. As stated above, in paragraph 6, the plaintiff is claiming to be in permissive possession and at the same time, the plaintiff also prayed for declaration of title on the pleading that he has acquired title by adverse possession because he is in possession for last 60 years. 10. In the case of Karnataka Board of Wakf Vs. Government of India & Ors., 2004(3) PLJR 245 Supreme Court, the Hon’ble Supreme Court has held that a party claiming adverse possession must prove that his possession is neck vi, neck clam, neck precario (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. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. 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. In the present case, except the assertion that since last 60 years, the plaintiff is continuing in possession, there is no other pleading. 11. In the case of P.T. Munichikkanna Reddy and others Vs. Revamma and others, (2007) 6 Supreme Court Cases 59, the Hon’ble Supreme Court has held that adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. Revamma and others, (2007) 6 Supreme Court Cases 59, the Hon’ble Supreme Court has held that adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. In the present case, as stated above, the true owner i.e. the State of Bihar or the medical college never abandoned the property but an encroachment case was initiated and in fact, he was evicted from the property but again he encroached upon the land. The plaintiff in paragraph 4 of the plaint has admitted this fact that he has already been declared to be an encroacher of the land of the appellant. It is not his case that the property is not of the State of Bihar or the medical college. 12. In A.I.R. 2009 Supreme Court 103 (Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan and Ors.) also, the Hon’ble Supreme Court has laid down the said principles of law regarding adverse possession. 13. In the case of Mandal Revenue Officer Vs. Goundla Venkaiah and anr., 2010 AIR SCW 977, the Hon’ble Supreme Court held that 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 upper hand to the encroachers, unauthorized occupants or land grabbers. Here, as stated above, in the land encroachment case, he has been declared to be encroacher of the appellant’s land. As has been stated above, it is not the case of the plaintiff that it is not the property of the appellant. The adverse possession pre-supposes that the title is on another person. Therefore, it was the burden on the part of the plaintiff to have pleaded that since which date his permissive possession became the adverse possession and since when he is denying the title of the State of Bihar. 14. In the case of L. N. Aswathama and another Vs. The adverse possession pre-supposes that the title is on another person. Therefore, it was the burden on the part of the plaintiff to have pleaded that since which date his permissive possession became the adverse possession and since when he is denying the title of the State of Bihar. 14. In the case of L. N. Aswathama and another Vs. P. Prakash, (2009) 13 Supreme Court Cases 229, the Hon’ble Supreme Court has held that to establish a claim of title by prescription i.e. adverse possession for 12 years or more the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding 12 years. It is well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi i.e. to say that mere possession without the intention to dispossess the true owner. 15. Recently, the Hon’ble Supreme Court in the case of State of Haryana vs. Mukesh Kumar and others, (2011) 10 Supreme Court Cases 404 has held that 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 adverse possession. People are often astonished to learn that a trespasser may take the title of a building or land from the true owner in certain conditions and such fact is even authorized by law. The theory of adverse possession is also perceived by the general public as a dishonest way to obtain title to property. Mistakes by land owners or negligence on their part should never transfer their property rights to a wrongdoer, who never paid valuable consideration for such an interest. 16. From perusal of the judgment of both the courts below, it appears that the courts below have not considered the well settled principles of law laid down by the Hon’ble Supreme Court since long. The courts below have decreed the plaintiff’s suit merely on the ground that the defendants failed to prove that the property has been acquired by the State of Bihar for the purpose of medical college without noticing the fact that the college is also the defendant. The courts below have decreed the plaintiff’s suit merely on the ground that the defendants failed to prove that the property has been acquired by the State of Bihar for the purpose of medical college without noticing the fact that the college is also the defendant. The courts below have also not noticed that this was not the issue between the parties particularly when as stated above in paragraph 6, the plaintiff himself admitted that the property is a cut piece of the lands acquired and moreover, the plaintiff himself is praying for declaration of title on the basis of adverse possession which pre-supposes that the title is with somebody else. The plaintiff never brought the suit making a case that the State of Bihar is not the owner rather any other particular person is owner of the property and he ever denied the title of the said owner as such he acquired title by adverse possession. In my opinion, both the courts below have approached the case in wrong angle and decided the question in favour of the plaintiff without considering the above settled principles of law. Accordingly, the substantial questions of law formulated are answered in favour of the appellants and against the plaintiffs-respondents. 17. In the result, this Second Appeal is allowed. The impugned judgment and decree of both the courts below are hereby set aside and plaintiff’s suit is dismissed. However, considering the facts that the plaintiff is admittedly a member of the schedule caste and he has been exempted from payment of court fee in suit, therefore, no cost is awarded.