Allahabad High Court
Gaon Sabha vs B.R. on 23 October, 2024
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:169653 Court No. - 49 Case :- WRIT - B No. - 16410 of 1984 Petitioner :- Gaon Sabha Respondent :- B.R. Counsel for Petitioner :- H.O.K.Srivastava,H.M.B.Sinha,Sahab Tiwari Counsel for Respondent :- G.N.Verma,A.N. Verma,M.Dikshit,Nirvikar Gupta,S.C. With Case :- WRIT - B No. - 12792 of 1984 Petitioner :- Thakur Das Respondent :- B.R. Counsel for Petitioner :- H.O.K.Srivastava,Aditya Vishal Chaurasia,Akhilendra Yadav,Alok Krishan Tripathi,Amit Kumar Singh,Bharti Kashyap,Diwan Saifullah Khan,Nirvikar Gupta,Pavan Kumar,Prakash Chandra,Ramesh Kumar Singh,Ranjit Saxena,Satendra Singh,Siddhartha Srivastava,Sushil Singh,Vinay Sharma Counsel for Respondent :- G.N.Verma,Abhinava Krishna Srivastava,B.Dayal,Chandra Shekhar Agnihotri,Dharmendra Kumar Srivastava,S.C.,Sahab Tiwari Hon'ble Saurabh Shyam Shamshery,J.
(Re:- Civil Misc. Delay Condonation Application No. 2 of 2022 filed in Writ-B No. 16410 of 1984) Delay condonation application is allowed.
Delay in filing the recall application is condoned.
(Re:- Civil Misc. Recall/Restoration Application No. 3 of 2022 filed in Writ-B No. 16410 of 1984) Cause shown for filing recall application is sufficient.
Recall application is allowed.
Order dated 08.03.2011, whereby the writ petition was dismissed for want of prosecution, is recalled.
The writ petition is restored to its original number.
Order on Petitions
1. Heard Mr. Diwan Saifullah Khan, learned counsel for petitioner, Mr. H.N. Singh, learned Senior Advocate, assisted by Mr. D.K. Srivastava, learned counsel for contesting respondents and Mr. Abhinav Krishna Srivastava, learned counsel for contesting respondents.
2. In the present case it is undisputed that the original respondent no. 5 has suffered an order of eviction under Rule 115C of U.P. Zamindari Abolition and Land Reforms, Rules, 1952.
3. The challenge thereof for eviction from the property in suit at the behest of the said respondent, before the Board of Revenue, was unsuccessful.
4. The present proceedings are arising out of a subsequent suit filed by the said original respondent under Section 229 B of U.P. Z.A. & L.R. Act, that on the basis of his long possession on the land in dispute he may be declared Shirdar.
5. In the aforesaid proceedings following 4 issues were framed:-
"1- क्या वादी विवादित आराजी का सारदार कृषक है?
2- क्या वाद धारा 49 सा०एच०एक्ट से बाधित है?
3- क्या दावा धारा 34 स्पेसिफिक रिलीफ एक्ट से बाधित है?
4- क्या ग्राम सभा ने बेदखली के एक साल के अन्दर वादी से दखल लिया है यदि नहीं तो उसका प्रभाव?"
6. The said suit was rejected by the Additional Collector, Agra, by an order dated 22.02.1975, that the plaintiff/original respondent no. 5 has failed to prove his possession as well as that the limitation provided at Serial no. 53 of Appendix III of Rule 338 of U.P. Zamindari Abolition and Land Reforms, Rules, 1952, would not be applicable in the facts and circumstances of the case, since the proceedings under Rule 115 C of the said Rule was only an order and not a decree.
7. The relevant part of above order is mentioned hereinafter:-
"मेरी फाइन्डिंग निम्न है वाद प्रश्न 1, 2, 3, 4 जहां तक धारा 49 चकबन्दी एक्ट का सवाल है, वादी ने अपने वाद पत्र में कहीं नहीं लिखा है कि वह चकबन्दी के पूर्व से काबज है और उसे सीरदार घोषित किया जावे। उसका कथन केवल इतना है कि चकबन्दी के बाद से 115 सी० की कार्यवाही हुई उसे उससे दखल प्राप्त नहीं किया गया, इसलिये उसको सीरदार घोषित किया जावे। 115 सी० की पत्रांक पर फार्म 40 च० की पुश्त पर लिखा है कि लेखपाल बैजनाथ 7-8-74 को दखल प्राप्त किया। वादी के वकील महोदय ने कहा है कि अन्तिम आदेश बोर्ड आफ रेवेन्यू के यहां से 3-1-72 को हुये थे और जमीदारी विनाश के अपेडिक्स 3 आइटम नं० 53 के अनुसार एक साल के अन्दर अर्थात 3-1-1973 तक दखल लेना चाहिये था जो कि नहीं हुआ। नियम 154 का भी पालन नहीं किया है। रेवेन्यु मैनुवल के पैरा 337 व 338 का भी पालन नहीं किया गया क्योकि दखल कुर्क अमीन के द्वारा दिलवाया जाना था और अपने कथन के समर्थन में 1970 आर० डी० पे० 94 असा सिंह बनाम गांव सभा का हवाला दिया है। जहां तक रेवेन्यु मैनुवल के उपरोक्ता पैरा का प्रश्न है यह सही है कि बेदखली किये गये व्यक्ति को सूचना दी जानी चाहिये थी। परन्तु यहां पर दखल लेखपाल द्वारा प्राप्त किया गया है और उसने बताया है कि मुनादी तोता राम मेहतर द्वारा कराई गई है। लेखपाल द्वारा जो खलौनी दाखिल की गई है उसमें विवादित आराजी जमीन परती के रूप में दर्ज है। लेखपाल द्वारा दखल प्राप्त करना अवैध नहीं ठहराया जा सकता परन्तु अनियमित अवश्य है। जहां तक अपेंडिक्स 3 आइटम 53 का प्रश्न है यह केवल डिक्री के लिये है और वादी द्वारा दाखिल की गई रूलिंग जिससे वाद का में जिस वाद का हवाला दिया गया है व 122 वी/194 ज० वि० अ० से सम्बन्धित है और उसमें राज्य सरकार द्वारा दखल प्राप्त नहीं किया गया है। 115 सी० की कार्यवाही में केवल एक आर्डर है और उसकी मियाद आईटम नं० 53 में नहीं आती। वादी ने अपने कब्जे के संबंध में कोई खसरा भी दाखिल नहीं किया है जिससे सिद्ध हो सके कि उसका कब्जा है और 1376 फ० से हो कब्जा होने पर वादी के अधिकार परिपक्व नहीं होते है। अतः स्पष्ट है कि दावा 34 स्पेसिफिक रिलीफ एक्ट से भी बाधित नहीं है क्योकि पत्र में वादी ने कब्जे के बारे में कहा है। स्पष्ट है कि दावा खारिज होने योग्य है। "
8. The above referred order was challenged by the plaintiff/original respondent no. 5 by way of an Appeal No. 209/75-76 before the Additional Commissioner Agra, Division, Agra, however, the same was also rejected by an order dated 08.11.1976 affirming the findings returned by the Trial Court.
9. The relevant part of said order is mentioned hereinafter:-
"3- मैने उभय पक्ष के विद्वान अभिभावको के तर्क सुने तथा पत्रावली का अवलोकन किया।
4- अपीलकर्ता की ओर से तर्क किया गया कि अवर न्यायालय ने वर्तमान वाद के निर्णय में जो वाद प्रश्न बनाये उन पर अपना अलग अलग कोई निष्कर्ष नहीं दिया। अतः यह वाद रिमाण्ड होने योग्य है कि अवर न्यायालय प्रत्येक वाद प्रश्न पर अपना निष्कर्ष देते हुये वाद को पुनः निणर्य करें उसके उत्तर में विद्वान जिला सरकारी वकील राजन ने आडिनेनस 17 सन 1976 की धारा 14 की ओर मेरा ध्यान आकर्षित करते हुये तर्क किया गया कि उक्त आडिनेनस से जो दिनांक 15-6-76 से लागू हुआ उसकी धारा 210 में संशोधन कर दिया गया जिसके कारण उस धारा 3 जिसके अनुसार किसी व्यक्ति को गाँव सभा की भूमि पर अनाधिकृत कब्जे का आधार पर सरदारी अधिकार प्राप्त होते थे समाप्त कर दी गई तथा यह भी बढ़ाया गया कि यह संशोधित धारा हमेशा से लागू समझी जावेगी अतः अपीलकर्ता किसी प्रकार विवादित भूमि तो गाँव सभा सम्पत्ति है जैसा कि आकार पत्र 45 से था खतोनी 1381-83 फसली से स्पष्ट है जिसमें उक्त भूमि नवीन पर्ती दर्ज है में कोई सीरदारी अधिकार प्राप्त नहीं हो सकते अपीलकर्ता को ओर से इसका सन्तोषजनक उत्तर नहीं दिया जा सका। अतः यह एपोल सारहीन है।
5- अतः इस अपील को निरस्त करता हूँ।"
10. In the aforesaid circumstances, plaintiff/original respondent no. 5 filed a Second Appeal before the Board of Revenue. The Second Appeal was allowed by an order dated 28.08.1984 reversing the concurrent findings of the Trial Court and the First Appellate Court that limitation of one year provided under above referred schedule was applicable and since no proceedings were executed to evict the plaintiff/original respondent no. 5 and on basis of evidence since he was successful in showing his possession for last 12 years, the suit was accordingly decreed.
11. The relevant part of said order is reproduced hereinafter:-
"9. Both the court below have committed illegality in not applying the period of limitation for executing order dated 18.06.1969 of Assistant Collector Ist Class under rule 115-C which became final after rejection of revision by Board. The reasoning of both the courts below that period of limitation for execution of decree is not applicable to such order is highly erroneous and there is no evidence on record that any dakhal was taken and the plaintiff- appellant was ejected from the disputed land by executing the order of ejectment of plaintiff from disputed land. The period being only one year which lapsed long ago and the evidence of plaintiff P.W 1, P.W 2 Kashiram and son of the plaintiff Pratap Singh P.W. 3 go to prove that the plaintiff is in continuous possession of the disputed land since more than 12 years and he was never ejected from the disputed land. The statement of Baijnath D.W. 1 can not be believed that he had ejected the plaintiff from the disputed land because he has no authority to do so without any parwana of execution of ejectment issued from the court and his statement proving his diary regarding it can not be believed as he had no authority and no dakhalnama was executed and the entry in the daily diary appears to be concocted one. The amendment of no limitation against Gaon Sabha's land of 1976 is not applicable to such cases of non execution of decrees or orders within limitation and the courts below wrong applied it to the facts of the present case which is not at all applicable and the plaintiff became sirdar of the disputed land after final orders by both dismissing revision against order of Assistant Collector Ist Class. Therefore, the suit of the plaintiff is liable to be decreed and the judgment and decree passed by both the courts below are liable to be set aside and this appeal is liable to be allowed.
10. In view of the above this appeal is allowed. The judgments and decree passed by both the courts below are set aside and the plaintiff's suit is decreed who is declared to be sirdar in possession of the disputed land who shall be so recorded and the papers shall be corrected accordingly."
12. It is not under dispute that the Second Appeal was allowed without framing any question of law. The above referred order was challenged by the Gaon Sabha in Writ A No. 16410 of 1984 and by the allotees of the land after the trial court rejected the suit of the plaintiff/original respondent no. 5.
13. Both the above writ petitions were filed in the year 1984 and according to the order sheet they got dismissed for want of prosecution as well on basis of an withdrawn application, however, later on Writ A no. 12792 of 1984, filed by the allottees was restored by an order dated 09.01.2023. So far as Writ A No. 16410 of 1984 is concerned, which is filed by the Gaon Sabha, it is being restored by order of date.
14. Learned counsel for the Gaon Sabha and the allotees have submitted that the concurrent findings of the Trial Court as well as First Appellate Court were erroneously disturbed by the Board of Revenue in Second Appeal without framing any question of law.
15. Learned counsel further submits that the Board of Revenue has erroneously held that limitation, as provided at Serial no. 53 of Schedule III of Rules, 1952 was applicable without making any distinction between an order and a decree. Learned counsel also submits that so far as adverse possession is concerned the basic requirement of it i.e. nec vi, nec clam, nec precario were not proved.
16. Learned counsel appearing on behalf of legal heirs of the contesting plaintiff/original respondent no. 5 submits that there is no evidence on record that after the order of eviction was passed against the said respondents in the proceedings arising out of Rule 115C of U.P. Zamindari Abolition and Land Reforms, Rules, 1952, he was evicted also. There is no parwana on the record and that the said respondent remained in possession continuously for more than 12 years, therefore, he has perfected his right as an adverse possession.
17. Learned Senior Counsel also submits that this is now between said respondent and allotees of the land and Gaon Sabha is now not an aggrieved party. He also submits that it is not mandatory to frame any question of law in a Second Appeal and in case this Court is of opinion that question of law were mandatory, instead of remanding it back to the Board of Revenue may decide both the writ petitions on merit.
18. I have considered the above submissions and perused the record.
19. As referred above, few facts are not disputed that original respondent no. 5/plaintiff has suffered an eviction order in a proceeding arising out of Rule 115 C of said Rules of 1952 and a challenge to it before the Board of Revenue was rejected, therefore, order of eviction has attained finality. Later on, the plaintiff/original respondent no. 5 filed a suit under Section 229 B of U.P. Z.A. & L.R. Act, to seek title of the land in suit on basis of his alleged adverse possession of 12 years. The suit was dismissed and First Appeal thereof was also dismissed.
20. It is not much under dispute that questions of law were not framed by the Board of Revenue in the Second Appeal which are mandatory and an order of reversal was passed i.e. judgements passed by the Trial Court and the First Appellate Court were set aside.
21. The issue in the present case is squarely covered from a very recent judgement of Supreme Court in case of Government of Kerala and Anr. Vs. Joseph and Others 2023 SCC OnLine SC 961 wherein also a plea of adverse possession was rejected by the Trial Court. However, therein the first appeal was allowed in the Second Appeal thereof, the order of judgement in reversal was passed i.e. order passed by the first appellate court was set aside.
22. In the aforesaid circumstances, the Supreme Court has considered whether the second appeal was decided in terms of the requisites of Section 100 CPC and held that the questions of law are mandatory to frame and not only mandatory to frame, but shall qualify that they shall have substance, essential, real, of sound worth, important or considerable, and in the said circumstances, it was held that the impugned judgement therein was faulted with for not complying with the well-established contours of Section 100 CPC.
23. The relevant part on the issue of consideration of Section 100 CPC in Govt of Kerala Vs. Joseph (Supra) is reproduced hereinafter:-
"15. In deciding the present dispute, this Court must examine the same from two angles. One, whether the Judgment impugned, arising out of Second Appeal meets the established criteria for Second Appeal or not?; and two, whether the respondents herein are entitled to the relief of adverse possession or is the claim so made, barred by the Kerala Land Conservancy Act, 1957?
16. For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfil certain well-established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court. We may only refer to Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 (three-Judge Bench) wherein this Court observed as follows:
"12. The phrase "substantial question of law", as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying "question of law", means -- of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with -- technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance.
...
14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."
(Emphasis supplied)
17. The principles laid down herein stood recently reiterated in Chandrabhan v. Saraswati (2022) SCC OnLine SC 1273 (two-Judge Bench).
18. A perusal of the judgment impugned does not reflect any question of law, either substantial or "involving in the case" to have been framed by the Court in the Second Appeal. The Section 100, CPC jurisdiction is not akin to the jurisdiction conferred under Section 96 of CPC wherein it is open for the Court to consider both questions of fact and law. This jurisdiction is exercisable only when the Court is convinced that the dispute at hand involves a substantial question of law, and proceeding under this jurisdiction sans framing questions of such nature renders the proceedings to be "patently illegal." [Umerkhan v. Bismillabi (2011) 9 SCC 684 (two-Judge Bench)
19. Recently, a Bench of two learned Judges in Singaram v. Ramanathan Civil Appeal No. 4939 of 2021 held as under:
"This is undoubtedly subject to various well known exceptions which, however, cannot permit the Second Appellate Court to interfere with the findings of fact as a matter of course. Such restrictions are placed on the High Court in order that there is finality to litigation at a particular level in the hierarchy of Courts. The limitation on the exercise of power by the High Court in the Second Appeal interfering with the judgment of the First Appellate Court is premised on high public policy. This limitation is sought to be secured by insisting upon the requirement that a Second Appeal is considered only when there is a substantial question of law. Therefore, the existence of substantial question of law and the judgment which revolves around answering the substantial questions of law are not mere formalities. They are meant to be adhered to."
(Emphasis supplied)
20. In view of the principles laid down in the above stated judgments, the impugned judgment must be faulted with for not complying with the well-established contours of Section 100, CPC."
24. In the present case since undisputedly the Board of Revenue has failed to frame the questions of law and has passed an order of reversal, therefore, the impugned judgement has faulted with for not complying the contours of Section 100 CPC.
25. In aforesaid circumstances, option available with this Court is to set aside the impugned order only on this ground and to remand back for fresh consideration.
26. However, the Court takes note that the matter is pertaining to the year 1973/74, when the suit was filed i.e. more than half a century of years, that therefore the paragraph no. 21 of Govt of Kerala Vs. Joseph (Supra) is also squarely applicable in the present case that this Court may proceed to consider the case on merit instead to remand it back to Board of Revenue. The paragraph 21 of it is reproduced hereinafter:-
"21. We have hitherto observed that the instant litigation has continued for a considerable period of time, i.e., four decades. Prudence would not be served by sending this matter back to the court below for consideration in light of the above discussion and, therefore, with an aim to put an end to the matter, this Court proceeds to examine the claim of adverse possession on its own merits, as is so argued across the bar."
27. In same judgement Supreme Court has also considered requirement of seriousness when it deals with plea of adverse possession on the land belonging to government and the relevant paragraph of it, in this regard being relevant, is mentioned hereinafter:-
"44. When the land subject of proceedings wherein adverse possession has been claimed, belongs to the Government, the Court is duty-bound to act with greater seriousness, effectiveness, care and circumspection as it may lead to Destruction of a right/title of the State to immovable property. In State of Rajasthan v. Harphool Singh (2000) 5 SCC 652 (two-Judge Bench) it was held:
"12. So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immovable property and conferring upon a third-party encroacher title where he had none."
28. Now the Court proceeds to consider the issue of adverse possession. In Govt of Kerala Vs. Joseph (Supra), said issue is also being dealt in detail and relevant paragraphs of the same are mentioned hereinafter:
"30. Before proceeding to do so, it is essential to take note of the law governing such a claim. After a perusal and consideration of various judgments rendered by this Court, the following principles can be observed:
31. Possession must be open, clear, continuous and hostile to the claim or possession of the other party; all three classic requirements must coexist- nec vi, i.e., adequate in continuity; nec clam, i.e., adequate in publicity; and nec precario, i.e., adverse to a competitor, in denial of title and knowledge;
(a) In Radhamoni Debi v. Collector of Khulna (2011) 9 SCC 684, the Privy Council held that-
"The possession required must be adequate in continuity, in publicity, and in extent to show that it is possession adverse to the competitor."
(b) Further, the Council Maharaja Sri Chandra Nandi v. Baijnath Jugal Kishore AIR 1935 PC 36 observed-
"It is sufficient that the possession should be overt and without any attempt at concealment, so that the person against whom time is running ought, if he exercises due vigilance, to be aware of what is happening."
(c) A Bench of three judges of this Court in Parsinni v. Sukhi (1993) 4 SCC 375held that "Party claiming adverse possession must prove that his possession must be 'nec vi, nec clam, nec precario' i.e. 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."
(d) In Karnataka Board of Wakf v. Govt. of India (two-Judge Bench) (2004) 10 SCC 779 it was held:--
"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."
This case was relied on in the case of M. Venkatesh v. Bangalore Development Authority (2015) 17S CC 1(three-Judge Bench), Ravinder Kaur Grewal v. Manjit Kaur (2019) 8 SCC 729 (three-Judge Bench).
(e) This Court in a recent case of M Siddiq (D) through LRs v. Mahant Suresh Das (2020) 1 SCC 1 (five-Judge Bench) reiterated this principle as under -
"748. A person who sets up a plea of adverse possession must establish both possession which is peaceful, open and continuous - possession which meets the requirement of being 'nec vi nec claim and nec precario'. To substantiate a plea of adverse possession, the character of the possession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. These requirements have to be duly established first by adequate pleadings and second by leading sufficient evidence."
32. The person claiming adverse possession must show clear and cogent evidence substantiate such claim;
33. This Court in Thakur Kishan Singh v. Arvind Kumar (1994) 6 SCC 591 (two-Judge Bench) held that -
"5. A possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession..."
34. Reference may also be made to M. Siddiq (supra).
35. Mere possession over a property for a long period of time does not grant the right of adverse possession on its own;
(a) In Gaya Prasad Dikshit v. Dr. Nirmal Chander (two-Judge Bench), (1984) 2 SCC 286 his court observed-
"1... It is not merely unauthorised possession on termination of his licence that enables the licensee to claim title by adverse possession but there must be some overt act on the part of the licensee to show that he is claiming adverse title. It is possible that the licensor may not file an action for the purpose of recovering possession of the premises from the licensee after terminating his licence but that by itself cannot enable the licensee to claim title by adverse possession. There must be some overt act on the part of the licensee indicating assertion of hostile title. Mere continuance of unauthorised possession even for a period of more than 12 years is not enough."
36. Reference may also be made to Arvind Kumar (supra); Mallikarjunaiah v. Nanjaiah (2019) 15 SCC 756 (two-Judge Bench); Uttam Chand (supra).
37. Such clear and continuous possession must be accompanied by animus possidendi - the intention to possess or in other words, the intention to dispossess the rightful owner; in Karnataka Board of Wakf (supra) it was observed-
"...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..."
(a) The case of Annakili v. A. Vedanayagam (2007) 14 SCC 308 (two-Judge Bench) also shed light on this principle as under -
"24. Claim by adverse possession has two elements : (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well-settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession..."
(b) In Des Raj v. Bhagat Ram (2007) 9 SCC 641 (two-Judge Bench) this Court observed -
"21. In a case of this nature, where long and continuous possession of the plaintiff-respondent stands admitted, the only question which arose for consideration by the courts below was as to whether the plaintiff had been in possession of the properties in hostile declaration of his title vis-à-vis his co-owners and they were in know thereof."
(c) This court in L.N. Aswathama v. P. Prakash (2009) 13 SCC 229 (two-Judge Bench) had observed that permissive possession or possession in the absence of Animus possidendi would not constitute the claim of adverse possession.
(d) It was also held in the case of Chatti Konati Rao v. Palle Venkata Subba Rao (2010) 14 SCC 316 (two-Judge Bench) -
"15. Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed..."
(Emphasis supplied)
38. Referring to the above judgment Subha Rao (supra) this Court has reiterated the cardinality of the presence of Animus possidendi in a case concerning adverse possession in Brijesh Kumar v. Shardabai (dead) by Lrs.(2019) 9 SCC 369 (two-Judge Bench).
39. Such a plea is available not only as a defence when title is questioned, but is also available as a claim to a person who has perfected his title;
40. The prior position of law as set out in Gurudwara Sahab v. Gram Panchayat Village Sirthala (2014) 1 SCC 669 (two-Judge Bench) was that the plea of adverse possession can be used only as a shield by the defendant and not as a sword by the plaintiff. However, the position was changed later by the decision of this Hon'ble Court in the case of Ravinder Kaur (supra) had held that - "...Title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession..."
41. The position in Ravinder Kaur (supra) was followed in Narasamma v. A. Krishnappa (Dead) Through LRs. ( 2001) 2 SCC 498 (three-Judge Bench).
42. Mere passing of an ejectment order does not cause brake in possession neither causes his dispossession;
43. In Balkrishna v. Satyaprakash (2001) 2 SCC 498 (two-Judge Bench) this Court held:
"...Mere passing of an order of ejectment against a person claiming to be in adverse possession neither causes his dispossession nor discontinuation of his possession which alone breaks the continuity of possession."
44. When the land subject of proceedings wherein adverse possession has been claimed, belongs to the Government, the Court is duty-bound to act with greater seriousness, effectiveness, care and circumspection as it may lead to Destruction of a right/title of the State to immovable property. In State of Rajasthan v. Harphool Singh (2000) 5 SCC 652 (two-Judge Bench) it was held:
"12. So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immovable property and conferring upon a third-party encroacher title where he had none."
45. Further, in Mandal Revenue Officer v. Goundla Venkaiah (2010) 2 SCC 461 (two-Judge Bench) it was stated:
"...It is our considered view that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the court is duty-bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State to immovable property and give an upper hand to the encroachers, unauthorised occupants or land grabbers."
46. A plea of adverse possession must be pleaded with proper particulars, such as, when the possession became adverse. The court is not to travel beyond pleading to give any relief, in other words, the plea must stand on its own two feet. This Court has held this in the case of V. Rajeshwari v. T.C. Saravanabava ( 2004) 1 SCC 551 (two-Judge Bench):
"...A plea not properly raised in the pleadings or in issues at the stage of the trial, would not be permitted to be raised for the first time at the stage of appeal..."
47. It has also been held in the case of State of Uttrakhand v. Mandir Sri Laxman Sidh Maharaj (2017) 9 SCC 579 (two-Judge Bench):
"...The courts below also should have seen that courts can grant only that relief which is claimed by the plaintiff in the plaint and such relief can be granted only on the pleadings but not beyond it. In other words, courts cannot travel beyond the pleadings for granting any relief..."
48. Mandir Sri Laxman Sidh Maharaj (supra) was relied on in Dharampal (Dead) v. Punjab Wakf Board (2018) 11 SCC 449 (two-Judge Bench) on the same principle.
49. Claim of independent title and adverse possession at the same time amount to contradictory pleas. The case of Annasaheb Bapusaheb Patil v. Balwant ( 1995) 2 SCC 543 (two-Judge Bench) elaborated this principle as:
"15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all."
50. This principle was upheld in the case of Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639 (two-Judge Bench) -
"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."
51. The Court in Uttam Chand (supra) has reiterated this principle of adverse possession.
52. Burden of proof rests on the person claiming adverse possession.
53. This Court, in P.T. Munichikkanna Reddy v. Revamma (2007) 6 SCC 59 (two-Judge Bench), it held that initially the burden lied on the landowner to prove his title and title. Thereafter it shifts on the other party to prove title by adverse possession. It was observed:--
"34. The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned : once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession...."
54. The Court reiterated this principle in the case of Janata Dal Party v. Indian National Congress ( 2014) 16 SCC 731 (two-Judge Bench):
"...the entire burden of proving that the possession is adverse to that of the plaintiffs, is on the defendant..."
55. The State cannot claim the land of its citizens by way of adverse possession as it is a welfare State.
[State of Haryana v. Mukesh Kumar ( 2011) 10 SCC 404 (two-Judge Bench)]"
29. As referred above, the learned Trial Court has decided the issues framed and held that it is on record that after the order was passed under Rule 115C of U.P. Zamindari Abolition and Land Reforms, Rules, 1952, eviction proceedings were undertaken and after Munadi, the possession was taken and accordingly it was entered in revenue records. The plaintiff/original respondent no. 5 has not produced any record about his possession on land in suit, and since proceedings under Rule 115 C of the said rule was an order , therefore the limitation as provided at serial no. 53 of schedule of said Rules, would not be applicable.
30. The said findings were upheld by the first Appellate Court. The Board of Revenue has disturbed the concurrent findings and has returned perverse finding that there was no evidence on record that dakhalnama was prepared and the plaintiff/original respondent no. 5/appellant was ejected from the disputed land. During the trial of the suit, original file of the proceedings under Rule 115C of U.P. Zamindari Abolition and Land Reforms, Rules, 1952, was requisitioned and therefore without examining the same by the Board of Revenue the finding that the plaintiff/original respondent no. /5 was not evicted become a perverse finding since it was contrary to record and that could not be substantiated and accordingly interfered.
31. The Board of Revenue has also referred the evidence of PW- 1, PW-2 and PW-3 who were the plaintiff and his close relatives, no independent witness was examined so far as possession is concerned. The Board of Revenue has believed said evidence, however, wrongly rejected the evidence of State i.e of Brijnath lekhpal who has placed the relevant documents such as CH form 41, 45 copy of delivery of possession dated 07.08.2014. However, the Board of Revenue in a very cursory manner without even referring said documents has disbelieved the statement of Lekhpal that there was no parwana of execution of the ejectment order. The findings returned by the Board of Revenue in second appeal are therefore perverse and therefore interfered.
32. In the aforesaid circumstances, basic requirement of adverse possession, as referred above, are absolutely missing. The animus possidendi which is the requisite ingredient of an adverse possession is also missing, that mere possession does not ripen into possessory title until the proposer holds the property adverse to the title of the true owner for the said purpose, whereas in present case possession is even not proved.
33. The finding returned by the Board of Revenue so far as limitation is concerned is also not legally sustainable since the limitation at serial no. 53 of Schedule is in regard to an execution of decree other money decree, whereas proceedings under Rule 115 C of the said Rule is only an order and not a decree, otherwise also there are sufficient material i.e. documentary as well as oral that in pursuance of an order in the said provision the appellant/plaintiff/respondent no. 5 was evicted.
34. Therefore, the Court is of the considered opinion that all reasons assigned by the Board of Revenue in the second appeal were without any legal basis. In the aforesaid circumstances the impugned order passed by the Board of Revenue is set aside and the order passed by the Appellate Court and Trial Court are upheld. Legal consequence shall follow.
35. Registrar (Compliance) to take steps.
36. Both the writ petitions are disposed of with aforesaid observations.
Order Date :- 23.10.2024 Saurabh (Saurabh Shyam Shamshery,J.)