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2014 DIGILAW 1600 (MP)

Achint Kumar v. State of M. P.

2014-12-04

ROHIT ARYA

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JUDGMENT : Rohit Arya, J. 1. This appeal by plaintiff is directed against the concurring judgment and decree passed by the first appellate court dated 15/4/2008 in Civil Appeal No. 27/2007 confirming the judgment and decree dated 13/8/2005 passed by the trial court in Civil Suit No. 38A/1999. Plaintiff's suit for declaration and possession has been dismissed. 2. Facts necessary for disposal of this appeal are to the effect that the plaintiff filed a suit in respect of agricultural land falling in survey Nos. 2353 and 2350 on the premise that since the time of his ancestors the suit land has been in possession of his forefather and thereafter plaintiff continues to be in possession thereof and, therefore, by virtue of uninterrupted, peaceful and continuous possession over the suit land, plaintiff has acquired title by adverse possession. 3. Respondent no.1/State filed written statement and denied plaint allegations. It was submitted that the plaintiff has never been in possession over the suit land. There is no documentary evidence in that behalf and the claim of the plaintiff to be in possession is without any basis. 4. Defendant no.2 filed written statement inter alia contending that she is holding title and in possession of the land adjacent to the suit land falling in survey No. 2354 and for settlement she had filed an application before the Tahsildar, which was registered as case No. 4/96-97-AaX19 and thereafter the order of settlement was passed on 18/11/1996 and she is in possession over the suit land. 5. The trial court based on the aforesaid pleadings of the parties, framed issues and allowed the parties to lead evidence. The trial court on detail analysis of evidence on record has reached the conclusion that plaintiff has failed to establish his title over the suit land, as there is no evidence on record to suggest uninterrupted, peaceful and continuous possession of the plaintiff over the suit land for more than 30 years to claim adverse possession against the State. The trial court also relied upon the report of the Revenue Inspector Ex.P/1 to record the aforesaid findings. It has further been observed that the encroachment shown to have been done by the plaintiff can always be removed by the State by resorting to the provisions as contained in the M.P. Land Revenue Code. The trial court also relied upon the report of the Revenue Inspector Ex.P/1 to record the aforesaid findings. It has further been observed that the encroachment shown to have been done by the plaintiff can always be removed by the State by resorting to the provisions as contained in the M.P. Land Revenue Code. The aforesaid judgment and decree was further reviewed by the first appellate court by re-appreciating the evidence on record. The first appellate court has confirmed the findings of the trial court. 6. In view of the aforesaid, both the courts below have recorded pure findings of facts. 7. Law is well settled as regards adverse possession. It is apposite to state 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. The 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. (See : 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. 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. Since the entire gamut of the matter is in the realm of facts and no question of law much less substantial question of law arises in this appeal warranting interference under Section 100 CPC, hence, this appeal sans merits and is hereby dismissed.