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2013 DIGILAW 929 (MP)

Jagdish Dubey v. Shyamlal Tiwari

2013-08-07

ALOK ARADHE

body2013
JUDGMENT Alok Aradhe, J.:- 1. This appeal is by the defendant No. 1, which was admitted on the following substantial questions of law: - “1. Whether the finding of the first Appellate Court that the plaintiff has acquired title to the land in dispute by adverse possession for more than 12 years is perverse ?” “2. Whether the first Appellate Court committed an error of law in not following the law laid down by the Division Bench of this Court in Churamani v. Ramadhar, 1991 MPLJ 311 ?” 2. Facts giving rise to filing of the appeal briefly stated are that the plaintiff filed a suit on the ground that one Lampe was the owner of suit land admeasuring 7.478 hectares. On his death, the suit land devolved on his brother namely Param. It was pleaded that the plaintiff is in cultivating possession of the suit land during the lifetime of Lampe and Param and thereafter acquired title over the suit land by adverse possession. However, the defendant No. 1 secretly got his name mutated in the revenue records and on 21-10-1997 threatened the plaintiff with dispossession. Accordingly, the plaintiff filed the suit seeking the relief of declaration and permanent injunction. 3. The defendant No. 1 filed the written statement in which inter alia it was pleaded that Lampe and Param were his maternal uncle. Param sold the suit land to defendant No. 1 vide registered sale deed dated 1-6-1981 for a consideration of Rs. 9000/- and placed him in possession. It was further pleaded that plaintiff is neither in possession nor he has acquired title by adverse possession. 4. The trial Court vide judgment and decree dated 29-7-2000 inter alia held that from perusal of the revenue records namely Ex.P/1, P/11 and P/13, it is evident that in column No. 3, the name of Lampe and defendant No. 1, respectively, have been recorded as owner in respect of the suit land. It was further held that though the plaintiff claims to have been placed in possession pursuant to the partition, however, no documents with regard to the partition has been filed. It was also held that none of the plaintiffs witnesses have stated that the possession of the plaintiff was adverse to the interest of the owners of the suit land namely Lampe and Param. It was also held that none of the plaintiffs witnesses have stated that the possession of the plaintiff was adverse to the interest of the owners of the suit land namely Lampe and Param. Thus, the trial Court held that the plaintiff has failed to prove the plea of acquisition of title by adverse possession. Accordingly, the suit was dismissed. In appeal, the lower Appellate Court vide judgment and decree dated 16-4-2001 while placing reliance on documents Ex.P/12, P/13, P/14, P/16 and P/24 inter alia held that the plaintiff is in possession of the suit land since 1978-79 and has acquired title by adverse possession. Accordingly, the judgment and decree passed by the trial Court was set aside and the claim of the plaintiff was decreed. 5. Learned counsel for the appellant submitted that the plaintiff has failed to prove as to when his possession became adverse to the interest of the owners. It was also submitted that mere illegal possession would not mean hostile or adverse possession. It is further submitted that mere entries in the revenue records with regard to possession does not confer the title on the plaintiff by adverse possession. In support of his submission, learned counsel for the appellant has placed reliance on decision of the Supreme Court in V. Rajeshwari (Smt.) v. T. C. Saravanabava, 2004(2) MPLJ (S.C) 392 = (2004) 1 SCC 551 , T. Anjanappa and others v. Somalingappa and another, (2006) 7 SCC 570 and decisions of this Court in General Mines and Quarries Ltd. v. Kartar Singh Prem Singh and others, 1992 MPLJ 563 and Kalyan Singh and others v. Jetthi Bai, 1995 MPLJ Note 35. 6. On the other hand, learned counsel for respondent No. 1 submitted that the finding on the issue with regard to acquisition of title by adverse possession is a pure finding of fact. The lower Appellate Court on meticulous appreciation of evidence on record has held that the plaintiff has acquired title by adverse possession. The aforesaid finding of fact which is based on meticulous appreciation of evidence on record does not call for any interference by this Court in exercise of powers under section 100 of the Code of Civil Procedure. 7. I have considered the respective submissions made by learned counsel for the parties and have perused the record. The aforesaid finding of fact which is based on meticulous appreciation of evidence on record does not call for any interference by this Court in exercise of powers under section 100 of the Code of Civil Procedure. 7. I have considered the respective submissions made by learned counsel for the parties and have perused the record. In a case where the plaintiff takes a plea of acquisition of title by adverse possession, has not only to plead the actual possession but has also to plead the period and date from which he claims the possession. The plaintiff has further to plead and prove that his possession was continuous, exclusive and undisturbed to the knowledge the real owner of the land. He is required to demonstrate a hostile title and has to communicate his hostility to the real owner. See: Krishnamurthy S. Setlur (Dead) by LRs. v. O. V. Narasimha Setty and others, 2007(3) MPLJ (S.C.) 15 = (2007) 3 SCC 569 . A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. the possession was hostile to the real owner and amounted to denial to the property claimed. See: Annasaheb Bapusaheb Patil v. Balwant @ Balasaheb Babusaheb Patil, AIR 1995 SC 893. It is equally well settled that party pleading adverse possession must state with sufficient clarity as to when he is in adverse possession, nature of his possession and the plea of adverse possession is not a pure question of law, but a mixed question of fact and law. See: Mahesh Chand Sharma v. Raj Kumari Sharma and others, AIR 1995 SC 869. 8. The jurisdiction of this Court to interfere with the findings of fact under section 100 of Civil Procedure Code is limited to the case where the finding is either perverse or based on no evidence. It is well settled in law that if the finding of fact has been reached in ignorance of material evidence available on record, the same would render the finding perverse and this Court in exercise of powers under section 100 of the Code of Civil Procedure would be well within its right to interfere with such a finding of fact. The re-appreciation of evidence is permissible in exceptional cases. The re-appreciation of evidence is permissible in exceptional cases. See: Narayanan Rajendran and another v. Lekshmy Sarojini and others, (2009) 5 SCC 264 , Hafazat Hussain v. Abdul Majeed and others, (2011) 7 SCC 189, Union of India v. Ibrahim Uddin and another, (2012) 8 SCC 148 . 9. In the backdrop of aforesaid well settled legal position, facts of the case may be seen. The plaintiff in para 2 of his plaint has stated that plaintiff is in possession of the suit land for past about more than 25 years, during the lifetime of Lampe and Param. It has further been stated that plaintiff was in cultivating possession of the suit land in the knowledge of Lampe and Param and after their death, in the knowledge of defendant No. 1. In para 4, it has further been pleaded that plaintiff's possession has been recorded in the revenue records and, therefore, he has acquired title by adverse possession. It is pertinent to mention here that the plaintiff has failed to plead that his possession was continuous, exclusive and undisturbed to the knowledge of the real owner. The plaintiff has also not pleaded that he had communicated his hostility to the real owner, which amount to denial to the property claimed. Mere entry in the revenue record with regard to possession is not an evidence of adverse possession. It is pertinent to mention here that the documents which have been filed on behalf of the plaintiff namely Ex.P/10, P/11, P/12 and P/13, in column No. 3, name of Lampe and after his death, name of defendant No. 1 is recorded as owner in respect of the suit property. The possession of the plaintiff has been recorded in column No. 12 of the revenue records, which has no presumptive value in law in view of decision by a Division Bench in the case of Churamani (supra). Mere possession howsoever long cannot be termed as adverse to prescribe title unless there is animus and hostility on the part of the person in possession which made known to real owner. The plaintiff has failed to plead and prove the aforesaid aspect of the matter. The plea of acquisition of title by adverse possession taken by the plaintiff is vague. The plaintiff has not pleaded in the plaint as to at what point of which his possession became adverse to the interest of the owners. The plaintiff has failed to plead and prove the aforesaid aspect of the matter. The plea of acquisition of title by adverse possession taken by the plaintiff is vague. The plaintiff has not pleaded in the plaint as to at what point of which his possession became adverse to the interest of the owners. 10. In view of preceding analysis the finding recorded by the first Appellate Court that the plaintiff has acquired title by adverse possession merely because his possession is recorded in the revenue records without adverting to the essential ingredients which are required to prove the plea of acquisition of title by adverse possession cannot, but be said to be perverse. 11. Accordingly, the first substantial question of law is answered in the affirmative and in favour of the appellant. The Division Bench of this Court in the case of Churamani v. Ramadhar, 1991 MPLJ 311 , has held that there is a presumption with regard to the entries made in the revenue records, however, there is no presumption with regard to the entries made in remark column i.e. column No. 12. The aforesaid aspect of the matter has not been considered by the lower Appellate Court while recording the finding. Accordingly, the second substantial question of law framed by this Court is answered. 12. In the result, the judgment and decree passed by the lower Appellate Court is set aside and that of the trial Court is restored. The appeal is allowed with cost. Appeal allowed.