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2014 DIGILAW 1170 (MP)

Omkar Singh v. State of M. P.

2014-09-17

ROHIT ARYA

body2014
JUDGMENT Rohit Arya, J. 1. Heard on the question of admission. 2. This appeal by appellants/plaintiffs under Section 100 of C.P.C. is directed against the concurring judgment and decree dated 6/5/2010 passed by Additional District Judge Sironj, District Vidisha (M.P.) in Civil Appeal No. 22-A/2006; confirming the judgment and decree dated 22/3/2006 passed by Civil Judge, Class-I, Sironj in Civil Suit No. 25-A/2002. By the aforesaid judgment, the plaintiffs' suit for declaration and permanent injunction has been dismissed. 3. Facts necessary for disposal of this appeal are to the effect that admittedly suit land survey No. 41 having an area of 2.390 hectare situated in village Safdalpur Bhatatori, Patwari Halka No. 33, Revenue Board No. 5, Tashil Sironj, District Vidisha is of the ownership of defendants/State. It is averred that suit land has been in possession of Khilan Singh, father of plaintiff and after his death is in possession of the plaintiffs for last 32 years. Their possession is peaceful, continuous and uninterruptedly, as such plaintiffs have perfected their title by adverse possession. Having appreciated forcible dispossession and grant of Patta in respect of suit land to others, plaintiffs have filed the instant suit for declaration and permanent injunction. 4. Defendants No. 1 and 2 have filed written statement denying the plaint allegations. It is submitted that suit land is of the ownership and possession of the State. Suit land has been given on Patta to landless agriculturists of Scheduled Castes and Scheduled Tribes community. It is denied that plaintiff is in possession of the suit land. It is also submitted that in fact suit itself was not maintainable in view of Section 57 of M.P. Land Revenue Code and also having not served notice under Section 80 of CPC. On aforesaid pleadings, it was prayed that suit be dismissed. 5. On aforesaid pleadings, trial Court framed issues and allowed the parties to lead evidence. Upon critical evaluation of the evidence on record, trial Court dismissed the suit. 6. On appeal, the first appellate Court has reconsidered the entire oral and documentary evidence on record. It has been found that plaintiffs have failed to establish their continuous, peaceful and uninterrupted possession over the suit land for last 30 years to claim title by adverse possession against State. 6. On appeal, the first appellate Court has reconsidered the entire oral and documentary evidence on record. It has been found that plaintiffs have failed to establish their continuous, peaceful and uninterrupted possession over the suit land for last 30 years to claim title by adverse possession against State. It has been found that suit land in fact is recorded in revenue records as Charnoi land and thereafter by order of competent authority, the suit land has been given on Patta to defendants No. 3 and 4, landless agriculturists of Scheduled Caste and Scheduled Tribes community. Upon such critical evaluation of the evidence on record, first appellate Court confirmed the findings of the trial Court. 7. Law as regards adverse possession is well settled. Law in this regard as consistently held by the Hon'ble Apex Court and followed by the various High Courts including the jurisdictional High Court. 8. The facts required to plead and prove adverse possession when the party to a lis set up a plea of acquisition of title adverse possession has to be specific as regards to period and date from which he claims possession and then have to prove that the possession was adequate in continuity, in publicity and in extent to show that his possession was actually visible, exclusive, hostile and continues over the statutory period as contemplated under Section 65 of the Limitation Act to the knowledge of the real owner. Mere physical act of exclusive possession by, itself, cannot justify the claim of adverse possession. 9. A person pleading adverse possession has no equity in his favour if some one asserts acquisition of title by adverse possession. It, in fact, amounts to trying to defeat the right of true owner and, therefore, burden is very heavy upon such person to prove title by adverse possession and for that he has to plead and establish all the facts necessary as aforesaid to establish his claim. 10. Further Hon'ble Supreme Court in the case of Karnataka Board of Wakf Vs. Government of India and others, (2004) 10 SCC 779 , in para 11 has observed as under:- "11. In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. Government of India and others, (2004) 10 SCC 779 , in para 11 has observed as under:- "11. In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well- settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, 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. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (S.M. Karim Vs. Bibi Sakina, AIR 1964 SCC 1254, Parisinii Vs. Sukh, (1993) 4 SCC 375 : (1003 AIR SCW 3606) and D.N. Venkatarayappa Vs State of Karnataka, (1997) 7 SCC 567 ). Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. 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 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. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Mahesh Chand Sharma (Dr) V. Raj Kumari Sharma (1996) 8 SCC 128 (1996) 8 SCC 128 )." 11. Having gone through the judgments of both the Courts below, this Court is of the view that the entire gamut of matter is in the realm of facts. (Mahesh Chand Sharma (Dr) V. Raj Kumari Sharma (1996) 8 SCC 128 (1996) 8 SCC 128 )." 11. Having gone through the judgments of both the Courts below, this Court is of the view that the entire gamut of matter is in the realm of facts. The findings recorded by both the Courts below are pure findings of facts based on proper appreciation of evidence on record, which in the opinion of this Court do not warrant any interference under Section 100 of CPC. No question of law, much less substantial question of law arises in this appeal. Appeal is therefore, dismissed.