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2024 DIGILAW 616 (MP)

Gangawati v. State Of M. P.

2024-09-10

AVANINDRA KUMAR SINGH

body2024
JUDGMENT : This second appeal is filed by the appellants/ plaintiffs who have filed Case No. (Civil Suit) 202-A/06 in the Court of Second Civil Judge, Class I, Rewa. The suit was dismissed and appeal of plaintiff bearing No. 24-A/07 was also dismissed. The parties have been heard on admission. 2. It was argued that both the Courts failed to see that plaintiffs were having title and possession was sought against the State Government on the ground of adverse possession on the suit property over the last 30 years. Learned counsel for the appellant submitted that his case is squarely covered by the judgment of Hon’ble Co-ordinate Bench of this Court in the case of Motiram Vs. Pannalal, 2002(1) M.P.L.J. 86 . Attention was drawn to paragraphs 15 and 16, which are as below:- “15. Having heard learned counsel for the parties, perused the record, considered the rival and forceful submissions of the learned counsel for the parties, this appeal has no substance and deserves to be dismissed as in my considered opinion the judgment and decree granted by the Courts below, the factual aspect of the matter, based on concurrent finding of facts stands concluded. The title of the respondent became perfected by virtue of adverse possession as he was found continuously in possession without any legal Gift -Deed in his favour. My this view is fortified by the view taken in the case of Bala (supra) by R.C. Lahoti, J., as he then was placing reliance of the Supreme Court judgment in the case of State of W.B. v. The Dalhousie Institute Society, reported in (1970) 3 SCC 802 : AIR 1970 SC 1778 ; and in the case Collector of Bombay v. Municipal Corporation of the City of Bombay, reported in AIR 1951 SC 469 ;, that if the possession of a person under the colour of invalid grant continues without any legal title and such possession not being referable to any legal title is prima facie adverse to the owner from the very moment of taking possession of the land under the invalid grant. Thus in such a legal situation the possession of a person under invalid grant cannot be treated as permissive in nature. Thus in such a legal situation the possession of a person under invalid grant cannot be treated as permissive in nature. The party who is continuously in possession under invalid grant after more than 12 years his title can be said to have perfected by adverse possession and he can claim such a right. In this case undoubtedly both the Courts have recorded a concurrent finding that the plaintiff continuously is in possession under colour of invalid grant. Thus, both the Courts were right in upholding the contentions raised by the respondents/plaintiffs. The appellant/defendant could not make out any case before me on the questions of law which were formulated at the time of admission of this appeal that the Courts below have committed aft error of law either in putting the burden of disproving the claim of the plaintiffs in the context of the adverse possession or the Courts below have committed an error of law in mis-reading the Revenue Record in context with possession of plaintiffs in respect of suit property and thus the judgments of both the Courts below do not suffer from any infirmity or perversity on the question of claim of the appellants/defendants. Ex. P/4 is Panch Sala Khasra entries for the year 1974-1975 to 1977-1978 in which the name of the plaintiff has been mentioned in the Column No. 12 of possession. The same is the position in Exs. P /5 and P /6 which are Khasra entries from 1969-1970 to 1977-1978. No other revenue record has been filed. Therefore, from the aforesaid documents which are part of revenue record clear factual position emerging is that the land in dispute is in possession of the respondents /plaintiffs. 16. In view of this clear factual and legal position on record and under the facts and circumstances of the case, in my considered opinion both the Courts below have rightly held that the respondents /plaintiffs are in continuous possession over the suit land commencing under invalid transfer and which has rightly been held to be adverse and on that basis it has been further rightly held that the title of the plaintiffs became perfected by adverse possession. Thus, I do not see any case for interference in the judgments and decrees granted by the Courts below. 3. Thus, I do not see any case for interference in the judgments and decrees granted by the Courts below. 3. On perusal of the judgments of both the Courts, it is seen that in paragraph 2 of the plaint, plaintiff has mentioned that grandfather of the plaintiff Mahavir was Benimadhav whereas in paragraph 3 he has mentioned that Benimadhav was son of Mangaldeen. The suit is filed by Mahavir Prasad S/o Mangaldeen, plaintiff No.1 and Kamalkant S/o Mahavir Prasad. The suit has been filed on two folds. On one hand, on the basis of title and on the other hand on the basis of adverse possession. As far as adverse possession is concerned and as held by both the Courts, there was litigation, therefore, looking to the ongoing litigation adverse possession would not give title to the plaintiff. It is submitted that earlier there was litigation and copies of compromise applications in Civil Court Ex. P/6 application and Ex. P/17 application have been filed but in considered opinion of this Court any proceeding in which government is not a party those documents / applications cannot be considered against the government. It is seen that learned trial Court in para 6, the trial Court has mentioned that P.W.1 is Kamalkant, P.W.2 is Rampal Singh, P.W.3 is Hridaylal but it is seen that P.W.1 was asked certain questions in paragraph 8 by the Court in which P.W.1 submitted that he does not know how the suit property was received by his grandfather. He also does not know when his grandfather mortgaged the suit property to Suryabali Singh. He does not know when redemption was done. He does not have receipt that he paid revenue i.e. lagan to the government, therefore, although the State did not appear and remained ex-parte and did not cross-examine the witnesses but the burden would lie heavily on the plaintiff to prove his case, even in ex-parte case. He does not know when redemption was done. He does not have receipt that he paid revenue i.e. lagan to the government, therefore, although the State did not appear and remained ex-parte and did not cross-examine the witnesses but the burden would lie heavily on the plaintiff to prove his case, even in ex-parte case. On perusal of the entire case it is seen that pleadings of the plaintiffs are contrary and it is not clear whether they have claimed title on the basis of adverse possession which is not proved or have claimed title on the basis of any previous title of his predecessor and no specific pleading has been made as to when adverse possession started or since when title accrued to the plaintiffs on either ground i.e. adverse possession or on the basis of title otherwise. 4. Both the Courts have considered all facts, law and have dismissed the suit correctly. The judgment cited by the learned counsel for the appellant would not come to the aid of the appellant as in that case, the plaintiffs were granted a decree by the trial Court and it was the other party who had gone in the Second Appeal whereas in this case after considering the factual and legal situation, the trial Court has dismissed the suit. In the case of Motiram (Supra) there was a decree in favour of the plaintiff by both the Courts, therefore, in the different facts and circumstances of the case, Motiram (Supra) would not help the appellant. 5. In Narasamma v. A. Krishnappa, (2020) 15 SCC 218 , Hon’ble Apex Court has observed from paragraphs 32 to 39 as under :- 32. The question which confronts us is not the aforesaid, but whether simultaneously a plea can be taken of title and adverse possession i .e. whether it would amount to taking contradictory pleas. In this behalf, we may refer to the four judgments cited by the learned counsel for the respondent herein, which succinctly set forth the legal position. 33. In Karnataka Board of Wakf case [Karnataka Board of Wakf v. Union of India, (2004) 10 SCC 779 , para 11], it has been clearly set out that a plaintiff filing a title over the property must specifically plead it. 33. In Karnataka Board of Wakf case [Karnataka Board of Wakf v. Union of India, (2004) 10 SCC 779 , para 11], it has been clearly set out that a plaintiff filing a title over the property must specifically plead it. When such a plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property. In that context, it was observed in para 12 that “… The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.” 34. The aforesaid judgment in turn relied upon the judgment in Mohan Lal [Mohan Lal which observed in para 4 v. Mirza Abdul Gaffar, (1996) 1 SCC 639 ], as under : (SCC pp. 640-41) “4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor -in -title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years i .e. up to completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.” 35. In order to establish adverse possession an inquiry is required to be made into the starting point of such adverse possession and, thus, when the recorded owner got dispossessed would be crucial. [P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59 ] 36. In the facts of the present case, this fact has not at all been proved. The possession of Smt Narasamma, the wife of the defendant, is stated to be on account of consideration paid. Assuming that the transaction did not fructify into a sale deed for whatever reason, still the date when such possession becomes adverse would have to be set out. Thus, the plea of adverse possession is lacking in all material particulars. 37. The possession of Smt Narasamma, the wife of the defendant, is stated to be on account of consideration paid. Assuming that the transaction did not fructify into a sale deed for whatever reason, still the date when such possession becomes adverse would have to be set out. Thus, the plea of adverse possession is lacking in all material particulars. 37. The possession has to be in public and to the knowledge of the true owner as adverse, and this is necessary as a plea of adverse possession seeks to defeat the rights of the true owner. Thus, the law would not be readily accepting of such a case unless a clear and cogent basis has been made out [M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das, (2020) 1 SCC 1 ] . 38. We may also note another judicial pronouncement in [Ram Nagina Rai v. Deo Kumar Rai, (2019) 13 SCC 324 : (2018) 5 SCC (Civ) 722] dealing with a similar factual matrix i .e. where there is permissive possession given by the owner and the defendant claims that the same had become adverse. It was held that it has to be specifically pleaded and proved as to when possession becomes adverse in order for the real owner to lose title 12 years hence from that time. 6. In Civil Appeal Nos. 4322 - 4324 of 2024 (M. Radheshyamlal Vs. V. Sandhya and Anr. Etc.) judgment and decree dated 18.03.2024, Hon’ble Supreme Court has observed in paragraph 12 as follows :- “12. Therefore, to prove the plea of adverse possession :- (a) The plaintiff must plead and prove that he was claiming possession adverse to the true owner; (b) The plaintiff must plead and establish that the factum of his long and continuous possession was known to the true owner; (c) The plaintiff must also plead and establish when he came into possession; and (d) The plaintiff must establish that his possession was open and undisturbed. It is a settled law that by pleading adverse possession, a party seeks to defeat the rights of the true owner, and therefore, there is no equity in his favour. After all, the plea is based on continuous wrongful possession for a period of more than 12 years. Therefore, the facts constituting the ingredients of adverse possession must be pleaded and proved by the plaintiff.” 7. After all, the plea is based on continuous wrongful possession for a period of more than 12 years. Therefore, the facts constituting the ingredients of adverse possession must be pleaded and proved by the plaintiff.” 7. Even otherwise, the jurisdiction of this Court to interfere with the findings of fact is well defined by catena of decisions of Supreme Court. This Court in exercise of powers under Section 100 of the Code of Civil Procedure can interfere with the finding of fact only if the same is shown to be perverse or based on no evidence. See. Narayanan Rajendran and another Vs. Lekshmy Sarojni and others (2009) 5 SCC 264 , Hafazat Hussain Vs. Abdul Majeed and others (2011) 7 SCC 189, Union of India Vs. Ibrahim Uddin and another, (2012) 8 SCC 148 , D.R. Rathna Murthy Vs. Ramappa (2011) 1 SCC 158 , Vishwanath Agrawal Vs. Sarla Vishnath Agrawal, (2012) 7 SCC 288 and Vanchala Bai Raghunath Ithape (dead) by LR Vs. Shankar Rao Babu Rao Bhilare (dead) by LRs. and Others, (2013) 7 SCC 173 . 8. For the aforementioned reasons, no substantial question of law arises for consideration in this appeal. The appeal fails and is hereby dismissed. Let a copy of this judgment along with the record be sent back to the concerned Court.