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2015 DIGILAW 177 (MP)

Babu Lal v. State of M. P.

2015-02-09

ROHIT ARYA

body2015
JUDGMENT : Rohit Arya, J. 1. This second appeal under Section 100 CPC is directed against the concurring judgment and decree passed by the first appellate court dated 5/7/2005 in civil appeal No. 45A/2004 confirming the judgment and decree dated 26/2/2004 in civil suit No. 126A/1996. Plaintiff's suit for declaration and permanent injunction based on adverse possession has been dismissed. 2. Appellant/plaintiff filed a suit inter alia contending that over the land admeasuring 0.627 hectare out of 5.856 hectare of Araji No. 20 and 3.76 hectare out of total rakwa 3.156 hectare of Araji No. 20 the plaintiff and his father have been in possession for last 40 years to the knowledge of the respondent/State Government and, therefore, have acquired title by adverse possession. Having apprehension of being dispossessed by proceedings under Section 248 of the M.P. Land Revenue Code, suit was filed. 3. Respondent/State filed written statement and denied the plaint allegations. It is denied that the plaintiff is in possession over the suit land and have any title over the suit land. It is submitted that plaintiff is an encroacher and liable to be evicted by way of proceedings under Section 248 of the M.P. Land Revenue Code. 4. Based on the aforesaid pleadings, trial court framed issues and allowed parties to lead evidence. Upon critical evaluation of the evidence on record, trial court has dismissed the suit. On appeal, the first appellate court has re-considered the entire evidence on record particularly the revenue records and has found that possession of the appellant is not shown over the suit land continuously for over 40 years, as alleged, besides name of other persons were shown in the Khasra entries. In some of the Khasra entries appellant has been shown to be the encroacher. In none of the entries the appellant is shown to be the Bhoomiswami of the suit land. Details in this regard are well discussed in paras 10 and 11 of the judgment of the first appellate court. There is no documentary evidence on record to claim possession over the suit land since the period prior to Samvat 2007, as alleged in the plaint that the appellant's father has been in possession of the suit land prior to the time of abolition of Zamindari. That apart, except oral statement no other document is brought on record as regards title of the suit land. That apart, except oral statement no other document is brought on record as regards title of the suit land. In view of the aforesaid conclusions drawn by the first appellate court, on re-appreciation of evidence the first appellate court has confirmed the findings of the trial court. 5. 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. 6. 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. 7. 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. 8. 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. 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. 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 ).” 9. Having gone through the judgments impugned, this Court is of the view that both the courts below have critically evaluated the evidence on record and recorded concurrent findings of facts dismissing the suit. Entire gamut of the matter is in the realm of facts. No question of law much less substantial question of law is involved in this appeal warranting interference under Section 100 CPC. Entire gamut of the matter is in the realm of facts. No question of law much less substantial question of law is involved in this appeal warranting interference under Section 100 CPC. Accordingly, the second appeal sans merits and is hereby dismissed.