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2015 DIGILAW 361 (MP)

Anant Rao v. State of M. P.

2015-03-30

ROHIT ARYA

body2015
JUDGMENT : Rohit Arya, J. 1. Heard on the question of admission. 2. The instant appeal by appellant/plaintiff under Section 100 of C.P.C. is directed against the concurring judgment and decree dated 22/7/2006 passed by Additional District Judge, Ganjbasoda, District Vidisha (M.P.) in Civil Appeal No. 229-A/2005; confirming the judgment and decree dated 24/10/2005 passed by Civil Judge, Class-II, Ganjbasoda in Civil Suit No. 6-A/2005. By the aforesaid judgment, the plaintiff's suit for declaration and permanent injunction in respect of the suit land has been rejected. 3. Plaintiff brought a suit inter alia contending that plaintiff is in possession of the suit land for last 50 years, ploughing the field and harvesting the crops. He is in peaceful, uninterrupted and continuous possession of the suit land, as such has acquired title by adverse possession. 4. Suit was contested by respondent/State inter alia contending that plaintiff is not in possession of the suit land. Plaintiff was an encroacher over the suit land which is a government land. It is denied that plaintiff is in possession of the suit land for last 50 years peacefully, continuously and uninterruptedly. With the aforesaid pleadings, suit was prayed to be dismissed. 5. On aforesaid pleadings, trial Court framed issues and allowed parties to lead evidence. Upon critical evaluation of the evidence on record, trial Court dismissed the suit. 6. On appeal, the first appellate Court again re-appreciated the entire evidence on record and has found that the plaintiff has failed to prove that he is in continuous, peaceful and uninterrupted possession of the suit land for more than statutory period much less 50 years to claim adverse possession against the respondent/State. Accordingly, claim of the plaintiff of having perfected the title by adverse possession has been negated. However, the Courts below have also examined the documentary evidence particularly revenue records in relation to suit land and found that except some stray entries in which plaintiff has been shown as encroacher, in most of the entries the suit land has been shown as of government. As such, first appellate Court confirmed the findings of the trial Court as regards negation of the claim of plaintiff for perfection of title by adverse possession. 7. Law as regards adverse possession is well settled as consistently held by the Hon'ble Apex Court and followed by the various High Courts including the jurisdictional High Court. 8. As such, first appellate Court confirmed the findings of the trial Court as regards negation of the claim of plaintiff for perfection of title by adverse possession. 7. Law as regards adverse possession is well settled 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. 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 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. Having perused the judgments rendered by both the Courts below, this Court is of the view that both the Courts below have recorded pure findings of fact on appreciation of evidence on record. The entire gamut of the matter is in the realm of facts. No question of law much less substantial question of law arises in this appeal. 12. At this stage, learned counsel for the appellant submits that in para 12, the first appellate Court has found the plaintiff in possession of the suit land and therefore it was directed that plaintiff shall not be dispossession from the suit land except by due process of law. 12. At this stage, learned counsel for the appellant submits that in para 12, the first appellate Court has found the plaintiff in possession of the suit land and therefore it was directed that plaintiff shall not be dispossession from the suit land except by due process of law. Therefore, under such circumstances, plaintiff's claim may be ordered to be considered in the light of provisions contained under section 162 of the Madhya Pradesh Land Revenue Code, 1959 as amended vide Madhya Pradesh Bill No. 19 of 2013 as the Madhya Pradesh Land Revenue Code (Amendment) Act, 2013, published in the Madhya Pradesh Gazette dated 11/07/2013 which reads as under: "162. Disposal of certain land in unauthorised possession. - (1) Notwithstanding anything contained in Section 248 and subject to rules made in this behalf, any land belonging to the State Government in such areas as notified in the official Gazette by the State Government, which is in unauthorised possession, shall be disposed of for agricultural and residential purposes, in government lessee rights by the Collector to such extent and on payment of such amount of premium and lease rent as may be prescribed. (2) If any land is disposed of under sub-section (!), all proceedings pending in any revenue court under section 248 in respect of such land shall stand abated". 13. It is submitted that in the area where the suit land is situated, several persons have been extended the benefit of the aforesaid provision of the Code, 1959 by the respondent/State in the matter of grant of lease rights. Hence, it is prayed that same treatment may be extended to the plaintiffs' also. 14. The aforesaid submission is considered. 15. The prayer appears to be reasonable and innocuous in nature. 16. Accordingly, it is hereby directed that the plaintiffs'/appellants' claim shall be considered in the light of the provisions as contained under section 162 of the Code, 1959 as amended referred to above on its own merits, in accordance with law and decide the same with due notice to the plaintiffs'/appellants' expeditiously by the competent authority of the respondent/State. 17. Appeal stands disposed of with the aforesaid observation.