Jharkhand High Court
Ramesh Kumar Jain vs Champa Kujur on 27 March, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 188 of 2019
1. Ramesh Kumar Jain, son of Sri Jhumar Mull Jain, aged about 52
years,
2. Pradeep Kumar Jain, son of Sri Jhumar Mull Jain aged about 50
years
Both residents of Kutchery Road, Ranchi, P.O. GPO, P.S. Kotwali,
District Ranchi.
... ... Plaintiff/Appellants/Appellants
Versus
1. Champa Kujur, son of Jagna Kujur, resident of Lowadih, P.O. and
P.S. Namkum, District Ranchi
2. Deputy Commissioner, Ranchi, P.O., P.S. & District Ranchi
3. Mahadeo Pahan, son of Late Kunjal Pahan, resident of Lowadih,
P.O. and P.S. Namkum, District Ranchi
... Defendants/Respondents/Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellants : Mr. Rohitashya Roy, Advocate : Mr. Vibhor Mayank, Advocate For the Resp. Nos. 1 & 3 : Mr. Atanu Banerjee, Advocate For the State : Ms. Rishi Bharti, AC to AAG-III
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Lastly heard on 04/02/2025 13/27.03.2025 This appeal has been filed against the judgment dated 27.04.2019 (decree signed on 17.05.2019) passed by the learned Additional Judicial Commissioner- II, Ranchi in Civil Appeal No. 75 of 2018 whereby the appeal preferred by the appellants has been dismissed. The judgment of the Trial Court is dated 01.09.2018 (decree signed on 14.09.2018) passed by the learned Munsif, Ranchi in Title Suit No. 54 of 2002 whereby the suit has been dismissed.
2. The plaintiffs are the appellants before this Court. The Appeal was admitted vide order dated 06.08.2024 on the following substantial questions of law: -
"(1) Whether the learned first appellate court being the Additional Judicial Commissioner-II, Ranchi has committed a perversity by holding that Gairmajarua Aam Land cannot be settled to anybody being contrary to the settled principle of law, as has been held by the Hon'ble Patna High Court in the case of Mohammad Ahsan Vs. State of Bihar, reported in 1970 PLJR 7 and which was reiterated in the case of Maya Devi Vs. The State of Bihar in C.W.J.C. No. 16123 of 2013 dated 28.03.2014 as also the case of Chandeshwari Prasad Narain Deo and Others Vs. State of Bihar and Another, reported in 1956 BLJR 24 as also in the case of Laxman Sahai and Others Vs. State of Bihar and Others, reported in 1990 (1) BLJR 457?
(ii) Whether the learned first appellate court committed perversity by not considering the plea of adverse possession of the plaintiff on the ground that the same can only be used as a shield and not sword, in view of the principle of law settled by the Hon'ble Supreme Court of India in the case of Ravinder Kaur Grewal & Ors. Vs. Manjit Kaur & Ors., reported in (2019) 8 SCC 729?"
3. The suit was filed seeking a declaration of Title and for perpetual injunction restraining the defendants from forcibly occupying the suit property. The suit property is a piece of land having an area of 15 decimal in plot no. 19, Khata No. 122, village Lowadih, Thana Namkum, District Ranchi as recorded in the judgment passed in Title Suit No. 54/2002 itself. The plaintiffs had stated that defendants were numerous in numbers and therefore the defendants whose names were mentioned in the cause title of the plaint were being sued being representatives of the villagers. The plaintiffs had also filed a petition under Order I Rule 10 of Civil Procedure Code (in short 'CPC') seeking leave of the court to sue the defendants being representatives of the villagers.
4. The case of the plaintiffs was that the suit land was recorded as Gair Mazarua Aam under Khewat no. 1 which belonged to Maharaja Pratap Udai Nath Shahdeo and in the remarks column of Khatiyan prepared in the year 1935 it was mentioned that Murat Sahu son of Bishun Dayal Sahu was in possession of the property for three years with pucca well and house. It was also stated in the plaint that 2 although the plot was recorded as Sarna but the same was never used for the purposes of Sarna and Murat Sahu died leaving behind his son Ram Chandra Sahu. He died leaving behind a Will bequeathing various properties including the property in suit to his two sons namely Bishun Shanker Sahu and Hiralal Sahu. He executed and registered the Will on 03.11.1959. Learned court of Judicial Commissioner, Ranchi granted the Probate of the Will on 05.05.1978. The heirs of Bishun Shankar Sahu and Hiralal Sahu by registered deed of sale dated 12.09.1981, sold and transferred 15 decimals of land of plot no. 19 to Ram Kumar Jain and others. Ram Kumar Jain got his name mutated and sold 11 ½ decimal of land in plot no. 19 to Ramesh Kumar Jain (plaintiff no. 1) by way of registered sale deed dated 31.10.1987 and by another registered sale deed dated 31.10.1987 sold 2 ½ decimal of land of same plot no. 19 to Pradeep Kumar Jain (plaintiff no. 2). Consequently, the plaintiffs in total possessed 14 decimals of land as owners. Both the plaintiffs got their name mutated and were regularly paying taxes to Ranchi Municipality. It was the case of the plaintiffs that since 1935, the property was in continuous and uninterrupted possession; firstly, of Murat Sahu and thereafter his descendants and finally it was sold to the plaintiffs.
5. Therefore, it was the case of the plaintiffs that the possession of the plaintiffs over the suit property is referrable to and to be tagged with the possession of Murat Sahu and consequently the erstwhile owners had been in possession of the land in open assertion of the hostile title to the suit property and had perfected their title and acquired valid title to the property. The plaintiffs claimed to have established a petrol pump and has been selling petrol and petroleum product from the said pump.
6. It was asserted that the defendants who have been claiming to be the political workers have been regularly demanding petrol free of cost from the pump. The refusal by the plaintiffs to give petrol infuriated the defendants who threatened the plaintiffs of dire consequences, the plaintiffs were scared and they lodged a complaint 3 with the police on 17.03.2002. Cause of action arose on 17.03.2002 when threatening was given by the defendants.
7. The suit was admitted for hearing on 19th April 2002 and also a separate petition under Order I Rule 8 of CPC was filed on 18.04.2002. During the proceeding, vide order dated 17.12.2004, name of defendant nos. 1, 2 and 4 to 6 were deleted and new defendant no. 8 was added as party. Upon failure to file written statement within time, on 05.05.2004 the defendant no. 7 i.e. Deputy Commissioner, Ranchi was debarred from filing written statement.
8. The defendant no. 3 filed written statement on 19.08.2002 wherein he stated that the suit was undervalued and also bad for non- joinder and mis-joinder of necessary party. Maharaj Pratap Udai Nath Sahdeo was only an intermediary as Tax Collector and his right was lost between 1950-55. It was further asserted that the land in dispute was recorded as Gair Mazarua Aam, Public land, used as Sarna for religious purpose. Murat Sahu was only shown as "Gusban Kabja" in the record of rights. He was shown to be in forcible possession. The defendant no. 3 further stated that it was wrong to say that land was never used for the purpose of Sarna. The sale deed dated 12.09.1981 was merely a paper transaction, Ram Kumar Jain and others never came in possession over the suit property. The alleged two sale-deeds dated 21.10.1987 are sham transaction. It was denied that since 1935 suit land was in continuous possession of Murat Sahu and subsequent purchasers. It was also asserted by defendant no.3 that petrol pump was not situated over the suit land. The land in question was being used for religious purpose and no individual had any personal right over the suit property.
9. Similarly, defendant no. 8 Mahadeo Pahan filed written statement on 31.01.2005 and raised the ground of under valuation of the suit and also raised defects on the ground of representative suit in the manner suit was filed. It was also stated that possession of Murat Sahu over the suit land was forcible possession and plaintiffs through false deed built petrol pump on the suit plot. It was also asserted that Plot Nos.
419 and 20 were Sarna plot of the village used for community purpose and the sale deed dated 12.09.1981 was a forged document.
10. On the basis of rival pleadings, on 07.02.2018 the learned trial Court framed following issues for consideration:
I. Is the suit as framed maintainable?
II. Has the plaintiffs got valid cause of action for the suit?
III. Whether the suit is barred under Order 1 Rule 8 CPC? IV. Whether plaintiffs has got valid right title land interest over the property in suit?
V. Whether plaintiffs are entitled to get the decree as claimed for?
VI. To what relief or reliefs plaintiff is entitled?
11. In support of their case, the plaintiffs examined altogether 7 witnesses i.e. P.W. 1 Ashok Kumar, P.W. 2 Md. Serajuddin, P.W. 3 Kamal Kumar Chowdhary, P.W. 4 Md. Kamruddin, P.W. 5 Pritam Kumar, P.W. 6 Jhumarmal Jain (father of the plaintiffs), P.W. 7 Shrawan Jain (brother of the plaintiffs) and P.W. 8 Ramesh Kumar Jain (plaintiff no. 1). Following documentary evidences were exhibited on behalf of the plaintiffs:
Ext. 1 to 1/7 - the Municipal Rent receipts in the name of Plaintiff nos 1 & 2.
Ext. 2- the Carbon copy of the F.I.R. lodged by Shrawan Kumar Jain, brother of the plaintiffs.
Ext. 3- the certified copy of the Khatian of Khata no. 122. Ext. 4- the certified copy of the WILL dated 28.09.1959 executed by Ram Chandra Sahu.
Ext. 5- certified copy of the sale deed dated 12.09.1981 executed by Gyanwal Devi and others in favour of Ram Kumar Jain -vendor of the plaintiffs.
Ext. 5/1 & 5/2 - certified copy of two sale deeds 31.10.1987 whereby plaintiffs claimed to have purchased the suit land Ext. 6- the rent receipts in the name of Ram Kumar Jain dated 03.09.1987 in respect of suit property.
Mark 'X'- Photocopy of the granting letter of administration in L.A. Case no. 73/1966.
Ext. X/1 - Photocopy of the correction slip dated 21.10.1987 in the name of Ram Kumar Jain, the plaintiff.
512. The defendants in support of their case examined two witnesses. D.W. 1 - Manohar Kujur and D.W. 2 - Champa Kujur.
13. It has come in the evidence of the witnesses produced on behalf of the plaintiffs that the plaintiffs are in possession of the suit property. P.W. 3 stated in his cross-examination that the petrol pump was there for the last 15 years. P.W. 3 also stated that the petrol pump is running since 1971-72. It has come in the evidence of P.W. 4 that there is a Sarna land in a short distance from the suit land. It has also come that municipal tax receipts are being issued in favour of the plaintiffs. P.W. 6 stated in his cross-examination that in the remarks column of records-of-rights, "Gusban Kabja" of Murat Sahu has been written and he also stated that towards eastern side of the suit property, there is Sarna place. P.W. 8 had stated that in column no. 2 of record-of-rights, "Gair Mazarua Aam" has been mentioned and in column no. 11, Sarna is written whereas in column no. 17 'Jasban' is written.
14. Defence witnesses admitted that petrol pump is running on the spot and they have asserted that the suit land is "Gair Mazarua Aam"
and the same was used for Sarna religious purposes and therefore, their specific case was that the suit land is non-transferrable.
15. The learned trial Court first decided issue no. IV and observed that in the Khatiyan (Exhibit- 3), the property is shown in possession of Murat Sahu who died leaving behind his son Ram Chandra Sahu who registered a Will dated 03.11.1969 in connection with which Letter of Administration was granted. The legal heirs and successors of Ram Chandra Sahu sold the suit land and other land to Ram Kumar Jain through sale-deed dated 12.09.1981 (Exhibit- 5) who, in turn, sold the suit land to the plaintiffs by two registered sale-deeds dated 31.10.1987 (Exhibit- 5/1 and 5/2). The learned trial Court further recorded that it was admitted case that the plaintiffs were in possession of the suit land and one petrol pump was running over the suit property. Admittedly, the Khewatdar of the suit land was shown as Maharaja Pratap Udai Nath Sahdeo but the nature of the land was shown as "Gair Mazarua Aam with usage of Sarna". The learned 6 Court further noted that the suit land was not specifically recorded in the name of any person, rather Murat Sahu was shown in possession as "Gusban Kabja". The learned trial Court was of the view that mere possession of Murat Sahu could not confer title of the suit land as it belonged to the community at large and therefore, his legal heirs could not have inherited the property and the property could not have been transferred through registered sale-deed in favour of the plaintiffs.
16. The learned trial Court also recorded that the registration of a document by itself does not confer or create title in favour of the vendee/transferee and the law is well-settled that no person can transfer a better title than what he possesses in the property transferred.
17. The argument of the plaintiffs that there has been no worship and religious activities was also considered by the learned trial Court and the plea was rejected by observing that merely because the plaintiffs had possession over the suit land and they were running the petrol pump, it did not change the nature of land at all and it remained "Gair Mazarua Aam with usage of Sarna". The learned trial Court observed that the private use of the public land will not change the nature of land from public use to private one unless the same is changed by a competent authority, therefore, it was immaterial as to whether the land was used for the last several years for religious purposes or not.
18. While considering the plea of adverse possession, the learned trial Court rejected the same by observing that the said plea could not be taken by the plaintiffs and the plaintiffs had taken contradictory pleading. On the one hand, they claimed title through sale-deed and on the other hand, they claimed relief through adverse possession; the pleas were inconsistent and could not co-exist. It was also observed that the plea of adverse possession will begin to run only when one party renounces his title and accepts the title of the other party and that the plea of adverse possession can be used only by the defendants and cannot be used as a sword by the plaintiffs to get relief.
719. The issue no. IV was accordingly decided against the plaintiff and in favour of the defendants.
20. While deciding the issue no. III, the learned trial Court recorded that there was a separate petition under Order I Rule 8 of CPC seeking the required permission and thereafter direction was given for paper publication which was made and a petition was also filed for addition of party. Ultimately, on 17.12.2004 Mahadeo Pahan (defendant no. 8) was added on representative capacity. Accordingly, issue no. III was decided in favour of the plaintiffs and against the defendants.
21. While deciding issue nos. I and II, both the issues were decided against the plaintiffs by observing that no person can transfer a better title than what he possesses in the property transferred and that the plaintiffs did not have the valid right and title over the suit land and the suit was held to be not maintainable. It was observed that in case of no right, there was no question of violation of the same which could give a valid cause of action. The plaintiffs were held to be not entitled for any relief and the suit was dismissed.
22. So far as the learned first appellate Court is concerned, the admitted facts were enumerated in paragraph 7 of the judgment as under:
1. The land under suit is Aam Gairmajurwa land a public land and its nature is of Sarna land is the admitted facts.
2. In column No. 17 forceful possession with contemporary prevalent terminology of Gasban Kabza has been mentioned of Murat Sahu in the records of rights. Murat Sahu died leaving Ram Chandra Sahu is also the admitted fact.
3. The two sons of Ramchandra Sahu died during pendency of Probate case no. 73/1966 is the admitted facts. It is not disclosed in whose favour the probate has been granted, is also the admitted facts which goes against the case of the plaintiffs.
4. Ramkumar Jain has purchased land but how his vendor inferred title and possession of the suit land is not disclosed in the plaint is also the admitted facts. The mutation has been recorded in the revenue record in the name of Ram Kumar Jain on the basis of registered sale deed executed in the year 1981 claimed by Gyanwanti Devi allegedly the heirs of the 8 sons of Ram Chandra Sahu but the plaintiff has not given complete and clear genealogy regarding their descendants is the admitted facts.
5. It is also admitted that there is no mutation in the name of the appellants in the records of rights in the office of Cricle officer is also the admitted facts.
6. On the suit land, there is a petrol pump established by the plaintiffs belonging to Hindustan Petroleum company is also the admitted fact.
7. Out of 18 decimals of land, the sale deed has been executed in favour of the plaintiffs/ appellants for 14 decimals of land and they have claimed 01 decimals of land as left for the purpose of road in the western side of the suit land and rest 03 decimals of land in the western side itself has been left for offering Puja of Sarna Communities is also the admitted fact."
23. The points for determination have been enumerated in paragraph 8 of the judgment of the learned appellate Court which are quoted as follows: -
"1. Whether a public land recorded as Aam Gairmajurwa land can be held to be in the title and legal possession of Murat Sahu on the ground of continued possession for any period which is recorded as Sarna Land for the purpose of offering rituals and religious works of scheduled tribe community?
2. whether the plaintiffs/Appellants have real cause of action to file the suit and whether the suit is maintainable in its present form?
3. Whether the judgment of learned trial court suffers from any legality or regularity and requires interference and is liable to be set aside in any manner or is passed according to law and requires no interference?"
24. The learned appellate Court considered the materials on record and held that Gair Mazarua Aam land is the uncultivated land of the government used for public purposes like Road, Temple, Mosque, Burial Place, Haat, Bazar etc. which cannot be settled to anyone. A reference was made to section 4(h) of the Land Reforms Act, 1950 and it was observed that any settlement can be made for Gair Mazarua 9 Khas land by the appropriate government but not for Aam Gair Mazarua land. It was also observed that the period for perfection of title of 12 years and 30 years in case of government, is only applicable with regard to Gair Mazarua Khas land but not for Gair Mazarua Aam land.
25. While considering the plea of adverse possession of the plaintiffs, the learned appellate Court again recorded that the right of adverse possession can be used as a shield and not as a sword. The learned appellate Court noted that the plaintiffs cannot get decree in a suit filed on the ground of adverse possession, rather it can be used as a defence in a suit, if any. It was held that Aam Gair Mazarua land cannot be settled or can not be used in the rightful title/ possession of any individual which is only meant for public purpose irrespective of any kind of possession for any period and it was held that the possession of Murat Sahu was illegal possession or forceful possession which cannot be approved by law. It was recorded that the illegal possession is always illegal and the point of determination no. 1 was decided against the appellants (plaintiffs).
26. With regard to point of determination no. 2, the learned first appellate Court recorded that in the plaint which was filed on 18.04.2002, it was alleged that the cause of action arose on 17.03.2002 when a complaint was lodged against the defendants before the police. The plaint was originally filed against the defendant nos. 1 to 6 and defendant no. 7 was the Deputy Commissioner and vide order dated 17.12.2004, the name of defendant nos. 1, 2, 4, 5 and 6 were deleted and as soon as the name of the aforesaid defendants were deleted from the plaint, the cause of action became false and not real. The learned Court observed that the defendant no. 8 was added, but there was no pleading of the plaintiffs that the defendant no. 8 ever demanded any petrol free of cost and the written statement was not amended. The plaintiffs did not file any document showing registration of First Information Report and ultimately, while considering the materials on record, the learned appellate Court held that the cause of action was not real and it was only created for the purposes of the suit and the suit 10 was held to be bad due to lack of proper and valid cause of action and was held to be not maintainable. The point of determination no. 2 was decided against the appellants (plaintiffs) and in favour of the defendants.
27. While deciding the point of determination no. 3, the learned first appellate Court recorded that the suit was not maintainable as Aam Gair Mazarua land cannot be held to be personal property of any individual in any condition; no judgment of probate case or original Will or genealogy of Murat Sahu was brought on record and there was nothing to show that in the probate case the parties of the present suit were also parties.
28. The learned appellate Court recorded that the suit ought to have been dismissed and was rightly dismissed by the learned trial Court.
29. It is important to note that the finding with regard to no cause of action to file the suit was concurrent finding by both the courts, but neither any substantial question of law has been framed on such point nor the parties have argued with respect to such point. The finding of no cause of action to file the suit has become final against the plaintiffs.
Submission of behalf of the Appellants.
30. Learned counsel for the appellants while referring to the substantial question no. 2 has submitted that neither the learned Trial Court nor the learned 1st Appellate Court framed specific issue in connection with adverse possession, although the plaintiffs/their predecessor-in-interest have been in possession of the property since 1932 and as per the record-of-rights the possession of the predecessor- in-interest of the plaintiffs was recorded as forceful possession in the remarks column i.e. shown as Gusban Kabja i.e. forceful possession of one Murat Sahu since three years before the final publication in the records of right in 1935 and the nature of the property was recorded as Sarna. The learned counsel submitted that the property was never used for the purposes of Sarna. He submitted that the nature of the property was recorded as its nature stood at that point of time and 11 therefore the nature of property with passage of time changed, as the same was in possession of the plaintiffs/their predecessor-in-interest.
31. Learned counsel for the appellants has relied upon the judgment passed by the Hon'ble Supreme Court reported in (2019) 8 SCC 729 (Ravinder Kaur Grewal and Others Vs. Manjit Kaur and Others) and has submitted that the learned first Appellate Court has wrongly observed that that the plea of adverse possession can be raised only as a shield and not as sword. He has referred to paragraph no. 11 of the aforesaid judgment which in turn refers to the earlier judgement passed by the Hon'ble Supreme Court reported in (1981) 2 SCC 103 (Kshitish Chandra Bose vs. Commissioner of Ranchi). The learned counsel has also submitted that the judgment referred to in paragraph 11 of the aforesaid judgment was relating to the municipality yet the decree was passed in favour of the person in possession by considering adverse possession. However, the learned counsel has fairly referred to paragraph 63 of the said judgement to submit that in case of properties dedicated to public cause, there can be no accrual of right by adverse possession. He submits that the said observation would not come in the way of the plaintiffs as the property remained in possession of the predecessor in interest of the plaintiffs since 1932 and was never used as Sarna since then and therefore the same cannot be said to be a property of public use. He has submitted that it has come in evidence that the land adjacent to the property claimed by the appellants was being used as Sarna land.
Submission on behalf of the private respondents (representing the village community)
32. The private respondents herein were added as party before the learned trial Court as defendants by virtue of a petition filed under Order I Rule 8 of CPC and they were representing the village community at large. The learned counsel for the private respondents has submitted that he is representing the village community i.e. the private respondents.
1233. Learned counsel appearing on behalf of the private respondents, on the other hand, opposed the prayer and with respect to substantial question of law no.1, he submitted that the judgments which have been referred to therein were either related to claim of the concerned person on the basis of settlement or Hukumnama and one or the other cases were relating to cancellation of such settlement. He has submitted that the plaintiffs in the present case have stated in the plaint itself that the predecessor in interest of the plaintiffs were in Gusban Kabja (forceful possession) of the suit land which was recorded as Sarna land. The learned counsel submits that in view of the aforesaid facts and circumstances the judgments which have been relied upon by the appellants do not apply in their favour. He has also submitted that the property was recorded as Sarna land which is for the use of the community at large and is used as place of worship for the Tribal people.
34. With respect to the substantial question of law no. 2, the learned counsel has submitted that the law is not well settled that plea of adverse possession can be claimed as a matter of shield as well as sword by virtue of the judgment referred to in substantial question of law, but the claim of adverse possession of the appellants has been rejected not only on the said ground but also on the ground that it was not open to the appellants to claim title as well as adverse possession. He has submitted that the plaintiffs were claiming title on the basis of sale deed and it was asserted that the State had issued rent receipt to the vendors of the plaintiff. However, in the present case the first rent receipt was issued only in the year 1986. The learned counsel has relied upon the judgment passed by the Hon'ble Supreme Court reported in (2022) 10 SCC 217 (Kesar Bai vs. Genda Lal and Another) and has referred to paragraph 7 thereof to submit that the plaintiffs cannot claim Title and also adverse possession simultaneously. The learned counsel has also relied upon the relief as prayed for by the plaintiffs and has submitted that the plaintiffs were seeking perpetual injunction against all other villagers restraining them from coming over the suit property. The learned counsel has 13 submitted that the substantial questions of law are fit to be answered in favour of the respondents.
Arguments of the Respondent State.
35. The learned counsel appearing on behalf of the State has also opposed the prayer of the appellants and has submitted that both the substantial questions of law are fit to be answered against the appellants and in favour of the respondents. She has submitted that the property in question is Sarna land and is meant for the use of village community/public at large and is a place of worship. She has submitted that with the passage of time the nature of land cannot change and the villagers had also opposed the prayer of the appellants. Rejoinder argument of the Appellants.
36. Learned counsel for the appellants, in response, has referred to the judgment passed by the Hon'ble Supreme Court in the case of Ravinder Kaur Grewal and Others (Supra) and has referred to paragraph 61 of the said judgment to submit that adverse possession is heritable and there can be tacking of adverse possession by two or more persons as the right is a transmissible one. He submits that the predecessor in interest of the appellants had acquired the right by way of adverse possession of the property involved in this case and therefore the subsequent sale deeds were also essentially based on the claim of right of adverse possession. He submits that the right to continue in possession by way of adverse possession was acquired by predecessor in interest of the appellants and the appellants are in possession by virtue of registered sale deeds. He submits that under the facts and circumstances of this case the plea of adverse possession and the claim of title are not inconsistent with each other and therefore both can be claimed. The learned counsel has referred to the judgment passed by the Hon'ble Patna High Court reported in 2014 SCC Online Patna 7936 passed in C.W.J.C. No. 16123 of 2013 (Maya Devi vs. State of Bihar) and has submitted that this judgment has been referred to in the first substantial question of law framed in the instant case. He has submitted that it has been clearly held in the case of Maya Devi (Supra) that the entry in cadastral survey, which was over hundred 14 years old in the said case, regarding the nature of land, was not an entry for all times in future. He has submitted that though at the relevant point of time the property involved in this case showed the entry as Sarna land but with the passage of time the nature of land changed and admittedly the land was not utilized by the public as Sarna land and remained in possession of the appellants. He submits that with the passage of time the nature of land has changed and it cannot be said to be Sarna land. The plaintiffs have established petrol pump on the suit land.
Findings of this Court
37. Admittedly, in the record-of-rights of 1935, the suit property is recorded as "Gair Mazarua Aam" with usage of "Sarna" and shown in "Gusban Kabja" of Murat Sahu, the vendor of the predecessor-in- interest of the plaintiffs who transferred the property to the plaintiffs through registered sale deeds. It is not in dispute that "Gair Mazarua Aam" means uncultivated common lands; "Sarna" land is meant for the use of village community/public at large and is a place of worship and "Gusban Kabja" means forceful possession. The learned trial Court has recorded a clear finding that the nature of the suit land has been clearly recorded as 'Gair Mazarua Aam with usage of Sarna.' and shown in "Gusban Kabja" of Murat Sahu, the vendor of the plaintiffs.
38. For the purposes of answering the substantial questions of law framed in this case, it would be suffice to note that it is the specific case of the plaintiffs that the plaintiffs have also acquired valid title over the property through registered sale deeds and they have established a petrol pump on the suit property. It is also their further case that the plaintiffs and their predecessor in interest have been in possession of the land in open assertion of the hostile title and have perfected their title. The cause of action arose when some political workers started demanding petrol free of cost and the plaintiffs refused and they were also threatened. The plaintiffs lodged a complaint with the police on 17.03.2002 and those persons were made defendants in the suit.
1539. The records reveal that during the proceeding of the suit vide order dated 17.12.2004 name of defendant nos. 1,2,4 to 6 were deleted and defendant no. 8 was added. The defendant no. 7 was debarred from filing written statement upon failure to file written statement within time.
40. The suit was contested by defendant no. 3 (Champa Kujur) who asserted that Maharaja Pratap Udai Nath Sahdeo was only an intermediary and he lost his right between the period from 1950-1955 and the land in dispute is recorded as Gair Mazarua Aam, Public Land, used as Sarna for religious purpose and further Murat Sahu was only shown as "Gusban Kabja" in the record of rights i.e. he was shown to be in forceful possession. It was denied that the land was never used for the purposes of Sarna. It was also asserted that execution of registered sale deeds dated 21.10.1987 were sham transactions. It was also denied that since 1935 the suit land was in continuous possession of Murat Sahu and subsequent purchasers. It was stated that the land in question was for religious purpose and no individual has any personal right over the suit property. Defendant no. 8 had also filed separate written statement and it was asserted that the possession of Murat Sahu over the suit land was forcible and the plaintiffs through false deed built up petrol pump on the suit plot. He asserted that plot no. 19 and 20 were Sarna plot of the village used for community purpose.
Substantial question of law no.1
41. The issue no. IV as decided by the learned trial Court was the most contested issue, which was, whether plaintiffs have got valid right title land interest over the property in suit? The learned Trial Court while deciding issue no. IV recorded the aforesaid nature and usage of the land as recorded in the record of rights and also nature of possession of the suit property by the plaintiffs and their predecessor in interest and also recorded that it was admitted that the plaintiffs were in possession of the suit property and a petrol pump was running over the same. The learned Court recorded that the aforesaid entry in the record of rights suggested that the land was recorded in favour of 16 the community at large for religious purposes. The aforesaid entries in record of rights were not disputed. The learned first appellate Court also did not disturb the aforesaid findings with regards to the nature and usage of the suit land and also the nature of possession of the suit property by the plaintiffs.
42. On the basis of the impugned judgements and also the materials on record, it appears that the nature and usage of land has been mentioned as Gair Mazarua Aam, Public Land, used as Sarna and it is not recorded just as Gair Mazarua Aam/ Public Land. The usage of the land shown in the record of rights as 'Sarna' assumes importance as 'Sarna' land are used for religious /worship purposes by the village community. It was the specific case of the plaintiffs that although the land was recorded as 'Sarna' land but it was never used for worship and considering its use as petrol pump, the nature and the usage of land has changed and therefore it can no longer be called as Sarna land. It has been argued that the nature of land changes with efflux of time depending upon its usage from time to time and entry in record of rights made in the year 1935 showing that the suit land was Sarna land has no bearing as the suit land was not used as sarna land since long. It is also important to note that the plaintiffs or their predecessors in interest never claimed title and possession on the basis of any settlement made by ex-landlord or by the Sate and admittedly they claimed possession of their predecessor in interest Murat Sahu as Gusban Kabja (forceful possession). With the aforesaid background the judgements referred in the question of law itself are considered as follows:-
A. In the judgment passed by the Hon'ble Patna High Court reported in 1970 PLJR 7 (Supra), the case was arising out of second appeal and the plaintiff was the appellant seeking a declaration of right, title, interest and confirmation of possession over the suit property. The right over the property was asserted on the basis of a settlement under a registered deed and it was the case of the plaintiff of the said case that the rent was fixed in perpetuity but when the zamindari vested, the 17 Karmachari began to interfere with the possession of the plaintiff who used to hold a Haat over the area and had been realizing toll from the shopkeepers. On the other hand, the specific case of the respondent State of Bihar was that by the settlement the plaintiff had acquired the interest of a tenure holder and not that of a raiyat and that being so, the interest of tenure holder vested in the State after January, 1956. The trial Court in the said case allowed the claim of the plaintiff by holding that he had acquired a raiyati interest by the settlement. The appellate Court reversed the finding and concluded that the settlement conferred permanent mokarari rights, that is, a tenure-holder's interest, on the plaintiff and, after the abolition of the zamindari, that interest vested in the State. It was argued in the said case on behalf of the appellant - plaintiff in the second appeal that the land was Gair Mazarua and was in the Khas possession of the plaintiff and the deed recited that the mokararidar, after properly cultivating the land, should appropriate the produce thereof and pay rent to the landlord and so it was argued that the settlement was only a raiyati interest and not interest of tenure-holder and that as per section 5 of Bihar Tenancy Act, the term "tenure holder" has been defined to mean primarily a person who has acquired from a proprietor or from another tenure-holder a right to hold land for the purpose of collecting rents. The specific case of the State was that the land was Gair Mazarua Aam so it could not be settled with the plaintiff's father. The said plea was rejected by observing that in view of the several decided cases, it could not be said that the landlord was absolutely debarred from making any settlement of Gair Mazarua Aam land and it was also observed that the landlord has got a right to settle even Gair Mazarua Aam land but such settlement must be subject to the customary rights of the villagers, if any, which they may have over the land and reference was made to the earlier judgment of Hon'ble Patna High Court reported in 1959 BLJR 310. In the 18 said case, the claimants used to hold Haat over the property and collect rent after the land was settled in their favour. Paragraph 6 of the aforesaid judgment is quoted as under:
"6. Learned State Counsel appearing on. behalf of the respondent has argued that the court of appeal below has held that, at least, plot No. 8 of Khata No. 9 was ghairmazrua-am land and so it could not be settled with the plaintiff's father. In view of the several decided cases, it cannot be said that the landlord is absolutely debarred from making any settlement of ghairmazrua- am land. The landlord has got a right to settle even ghairniazrua-am land; but such settlement must be subject to the customary rights of the villagers, if any, which they may have over the land (vide Mussainmat Husenbano v. The State of Bihar 1959 B.L.J.R. 310). If a piece of ghairmazrua-am land is settled with any person and he remains in possession over it for twelve years, he can acquire the rights of an occupancy raiyat. Any way, when the entire evidence on record is taken into account, it is clear that the learned Subordinate Judge has misinterpreted. Ehxibit 1. It may be pointed out that there is no dispute about the identity of the land and in the written statement, the State has only alleged that the landlord had no right to settle it and nowhere did it state that the land was never settled with the predecessor-in-interest of the plaintiff."(emphasis supplied) In the present case, the appellants- plaintiffs are not claiming any right through any settlement made in their name or in the name of their predecessor in title. Rather, admittedly, the predecessor in title was in forceful possession of Sarna land which was meant for religious purpose of the community at large and in the aforesaid judgement also it has been held that even the right to settle Gair Mazarua Aam was subject to the customary rights of the villagers, if any, which they may have over the land by referring to a previous judgement on the point. In view of the aforesaid facts and circumstances, the judgment passed in the case of Mohammad Ahsan (Supra) does not help the appellants -plaintiffs in any manner to seek a declaration of title over the suit property. This Court is of the considered view 19 that the predecessor in interest of the plaintiffs and now the plaintiffs being in Gusban Kabza (forceful possession) of Sarna land which was meant for religious purpose of the community at large cannot claim any title over the property by stating that the status of the land has changed as the land has not been used for religious purposes for a long time.
B. In the judgment passed by the Hon'ble Patna High Court in the case of Maya Devi (Supra) it has been held in paragraph 5 that the land involved in the said case was shown in the cadastral survey (which was over 100 years old) as Gair Mazarua Aam, Gair Mazarua Khas or Qaisar-e-Hind and it has been held that an entry in the cadastral survey over 100 years old with regard to nature of land is not an entry for all times in future and such an entry does not preclude the change of nature of the land with passage of time and it was not an entry which would bind all parties and not subject to change either by settlement or user. In Maya Devi (Supra) the case was arising out of a writ petition and the writ petitioners were fighting for compensation. In the said case, the State sought to acquire land and it was averred by the writ petitioners that solely for the purposes of forcefully evicting the petitioners from their land and their houses, the State was cancelling their long standing Jamabandi and denying them compensation. As per the State, the acquisition was already complete and it stood admitted that the writ petitioners were in possession of the property since decades and it seemed that the settlements were wrongly created/made in their favour. The State asserted that as per cadastral survey, the land was shown a century back as Gair Mazarua Aam, Gair Mazarua Khas or Qaisar-e-Hind, therefore, the case of the State was that settlement could not have been made. In Maya Devi (Supra), the State questioned the settlement followed by creation of Jamabandi in favour of the writ petitioners by asserting that as per entry in the record-of-rights it was shown as Gair Mazarua Aam, Gair Mazarua Khas or Qaisar-e-Hind. It was in such 20 background, the Hon'ble Patna High Court held in paragraph 5 as under:
"5. Having considered the matter, the first thing to be noted here is that there is no dispute that the land in the cadastral survey, which is over a 100 years old was shown as Gair Mazarua Aam, Gair Mazarua Khas or Qaisar-e-Hind. An entry in the cadastral survey over 100 years old with regard to nature of land is not an entry for all times in future. It is an entry with regard to existing state of affairs then. It does not preclude the change of nature of the land through passage of time. It is not an entry which would hold good for all times to come and would bind all parties and not subject to change either by settlement or user. This, merely because in the cadastral survey a land is shown as Gair Mazarua Aam, Gair Mazarua Khas or Qaisar-e-Hind, is not a determinative factor today. It only shows the history."
In the aforesaid background, the Hon'ble Patna High Court held that the State was under a misconception that once a land is recorded as Gair Mazarua Aam or such land, no settlement can be made by anyone at any point of time and ultimately the writ petition was allowed and the State was restrained from proceeding either to cancel the Jamabandi or evict the petitioners or deny the petitioners' compensation except the authority of law or in accordance with law.
In the present case, the entry in record-of-rights revealed that the property is recorded as Gair Mazarua Aam with a further insertion that it was Sarna land and Murat Sahu - the predecessor in-interest of the plaintiffs was only shown as Gusban Kabza in the record-of-rights, meaning thereby that he was shown to be in forceful possession of the property. In such circumstances, the aforesaid judgment passed by the Hon'ble Patna High Court in the case of Maya Devi (Supra) wherein the writ petitioners were in possession of the property by virtue of settlement, does not apply to the facts and circumstances of this case.
21C. In the judgment passed by the Hon'ble Patna High Court in the case of "Chandreshwari Prasad Narain Deo and others Vs. State of Bihar and Another" as referred in the substantial question of law no. 1 and also reported in 1955 SCC OnLine Pat 62, the matter was arising out of a writ proceedings wherein the writ petitioners had moved the High Court seeking quashing of the order dated 18.02.1954 passed by the concerned authority under section 4(h) of the Bihar Land Reforms Act whereby the concerned authority had cancelled five khorposh grants made by the then Maharaj in favour of the writ petitioners pursuant to a compromise decree dated 03.04.1948 though the compromise was entered into in the year 1937 and the compromise petition was filed on 22.03.1948 but the compromise was certainly after 01.01.1946, the cut-off date provided under Bihar Land Reforms Act, 1950. The Hon'ble Division Bench of Patna High Court observed in paragraph 23 of the said judgment that the jurisdiction of the Officer to Act under section 4(h) and to cancel the grant was dependent upon the preliminary condition that the outgoing proprietor had made the grants with the object of defeating the provisions of Bihar Land Reforms Act or for obtaining higher compensation. The Hon'ble Court further recorded that if in fact the outgoing proprietor had no such intention, the Sub-divisional Officer would have no jurisdiction to annul the grants and take possession of the properties covered under the grants. In the aforesaid background, the Hon'ble Division Bench of Patna High Court held that the order of cancellation of grants was without jurisdiction and null and void. The aforesaid judgment passed in the case of Chandreshwari Prasad Narain Deo (Supra), also does not apply to the facts and circumstances of this case as the plaintiffs and their predecessor in interest were in forceful possession of the property and not by virtue of any grant or settlement made by any competent authority.
22D. The case of Laxman Sahni (Supra) was arising out of a writ petition wherein a proceeding under section 4(g) of the Bihar Land Reforms Act, 1950 was under challenge. It was the specific case of the writ petitioners that the case was relating to a tank which at one point of time belonged to the then landlord, who in the year 1952, settled the same with the writ petitioners and the writ petitioners also obtained rent receipts from the landlord. At the time of vesting, ex-landlord had filed a return showing the name of the writ petitioners as raiyats and thereafter, the petitioners renovated the tank and were using the same. A vesting proceeding was also started and compensation case was initiated, return was submitted and the ex-landlord was given full compensation after verification of Jamabandi of the aforesaid land and the writ petitioners also started paying rent to the State of Bihar and obtained rent receipt up-to-date in their own name. An application was filed by certain persons seeking settlement of the said property and it was found that the said property was already settled by the ex-landlord and a portion of the property was also already sold. The fact that the petitioners were shown as raiyat by the landlord at the time of vesting was not in dispute. The specific case of the State was that since there was no settlement, no proceeding under section 4(h) of the Bihar Land Reforms Act was started. The Hon'ble Court ultimately recorded that there was no finding by any revenue authority to the effect that the settlement of the disputed land was made with the petitioners after the first day of January, 1946 as per the requirement of clause 4(h) of the Bihar Land Reforms Act and consequently, all the proceedings initiated under section 4(g) of the Bihar Land Reforms Act were quashed and set-aside.
In the present case, no proceeding under the provisions of Bihar Land Reforms Act is involved. The substantial question of law only referred to the point as to whether the Additional Judicial Commissioner-II, Ranchi had committed a perversity by 23 holding that Gair Mazarua Aam Land cannot be settled to anybody and such finding was contrary to the settled principle of law. In the facts of this case, though the land is Gair Mazarua Aam land but the appellants-plaintiffs have not claimed any settlement at any point of time. Accordingly, the aforesaid judgement of Laxman Sahni (Supra) neither applies to the facts of this case nor helps the appellants-plaintiffs in any manner.
43. This Court is of the considered view that in the present case it is nobody's case that there was any settlement in favour of the plaintiffs or their predecessor-in-interest, rather admittedly as per record-of- rights they were in forceful possession of Sarna land meant for religious purposes for use of the community. It has already been observed in the judgment reported in 1970 PLJR 7 (Supra) that the landlord has got a right to settle even Gair Mazarua Aam land; but such settlement must be subject to the customary rights of the villagers, if any, which they may have over the land (vide Mussainmat Husenbano v. The State of Bihar 1959 B.L.J.R. 310). This Court is of the considered view that the plaintiffs or their predecessors-in-interest having come in possession forcefully cannot claim the status of a settlee by settlement by efflux of time nor it was their case that settlement was done at any point of time. Although, there was no legal bar in settlement of Gair Mazarua Aam land, but the nature of land in question being Sarna -meant for religious purposes of the community, the suit land was neither settled nor could be settled in favour of the plaintiffs. The argument of the plaintiffs that no worship and religious activities had taken place over the suit land as petrol pump was running over the suit property was also considered by the learned Trial Court. The learned Trial Court held that even if the plaintiffs were having possession over the suit property, it would not go to change the nature of land at all and it will continue to remain the same as 'Gair Mazarua Aam for public usage of Sarna'. The learned Court also observed that private usage of public land by any particular private person will not change its nature from public usage to private 24 one unless the nature of land is changed by the competent Authority, therefore the learned Trial Court recorded that it was immaterial that whether the land in question was used for last several years for religious purpose or not. The aforesaid finding of the learned trial Court was not interfered by the learned first appellate Court, rather it was in the same line. The findings of the learned first appellate Court when taken in totality would reveal that the learned first appellant Court has held that the suit land could not be settled keeping in view the fact that it was 'Sarna' land. The 1st substantial question of law is accordingly answered against the appellants and in favour of the respondents.
Substantial question of law no. 2
44. The learned trial Court recorded that in the remarks column of record of rights, possession of Murat Sahu was mentioned and shown as Gusban Kabja. The aforesaid facts which have been recorded in paragraph 14 of the trial Court judgment are not in dispute and this Court has verified these facts even from exhibit-3. The learned trial Court recorded that mere possession of Murat Sahu over the suit plot could not confer any title over the suit land as it belonged to the community at large. The learned trial Court further recorded that in absence of any title of Murat Sahu, the same could not have been inherited by his legal heirs and therefore they were not competent to transfer the title of the suit property through deeds and consequently all the subsequent deeds including the registered deed on the basis of which the plaintiffs were claiming title will not lead to transfer of property as Murat Sahu did not have any valid title and nobody can transfer better title than what he himself has. It was also observed that registration of documents makes the process of verification and certification of title easier and simpler, but the registration of document by itself does not confer or create title in favour of vendee/transferee and the registration of the document by itself would not create or transfer title to the transferee.
45. So far as the plea of adverse possession is concerned, the same was considered by the learned trial Court and the learned trial Court 25 recorded that the plaintiffs had taken contradictory pleadings. On the one hand, they claimed the title through sale deed and on the other hand they claimed adverse possession. The learned Court recorded that the plaintiffs were claiming continuous adverse possession since 1935 being continuous and adverse to the defendants. The learned trial court held that the relief of claim of title through sale deed and through adverse possession were inconsistent and could not exist together. The learned trial court also recorded that the plea of adverse possession will begin to run only when the plaintiffs renounce their title and accept the title of the other party and also observed that the plea of adverse possession can only be used as a defence in the capacity of defendant and cannot be used as a sword for getting the relief. The learned court ultimately held that there was clear lack of incidence of title in favour of the plaintiffs and ultimately dismissed the suit.
46. The learned 1st Appellate Court also considered the materials on record and enumerated the admitted facts on record in paragraph 7 of the appellate court's judgment as under:-
"7. From the judgment of learned trial court it does not appear that any exercise of order X has been made and though no admitted facts have been discussed with but from the extract of judgment and pleadings of the parties and also on consideration of evidence available on record, the admitted facts of the suit can be indicated as below:-
1. The land under suit is Aam Gairmajurwa land a public land and its nature is of Sarna land is the admitted facts.
2. In column No. 17 forceful possession with contemporary prevalent terminology of Gusban Kabza has been mentioned of Murat Sahu in the records of rights. Murat Sahu died leaving Ram Chandra Sahu is also the admitted fact.
3. ............................
4. Ramkumar Jain has purchased land but how his vendor inferred title and possession of the suit land is not disclosed in the plaint is also the admitted facts. The mutation has been recorded in the revenue record in the name of Ram Kumar Jain on the basis of registered sale deed executed in the year 1981 claimed by Gyanwanti Devi allegedly the heirs of the sons of Ram Chandra Sahu but the plaintiff has not given complete and clear genealogy regarding their descendants is the admitted facts 26
5. It is also admitted that there is no mutation in the name of the appellants in the records of rights in the office of Circle officer is also the admitted facts
6. On the suit land, there is a petrol pump established by the plaintiffs belonging to Hindustan Petroleum company is also the admitted fact.
7. Out of 18 decimals of land, the sale deed has been executed in favour of the plaintiffs/ appellants for 14 decimals of land and they have claimed 01 decimals of land as left for the purpose of road in the western side of the suit land and rest 03 decimals of land in the western side itself has been left for offering Puja of Sarna Communities is also the admitted fact."
47. The learned 1st Appellate Court had formulated the points of determination in paragraph 8 with the consent of both the parties and the 1st point was Whether a public land recorded as Aam Gair Mazarua land can be held to be in the title and legal possession of Murat Sahu on the ground of continued possession for any period which is recorded as Sarna Land for the purpose of offering rituals and religious works of scheduled tribe community?
48. While deciding the aforesaid point, the learned 1st Appellate Court considered the materials on record and case of the respective parties and held that Gair Mazarua Aam land is uncultivated land of the government used for public purpose like road, temple, mosque, burial, place, haat, Bazar etc. which cannot be settled to anybody. The learned Court referred to provision of Section 4(h) of Bihar Land Reforms Act, 1950 and observed that any settlement of such Gair Mazarua Khas land can only be made by appropriate government, but this is not applicable to Gair Mazarua Aam land. The learned Court recorded that after abolition of Jamindari, even if a person has possession on such land and by the order of Revenue Officers even rent receipt is issued, it has to treated as illegal. The learned Court also recorded that according to law any period of 12 years or in case of Government the period of 30 years or more, would only be applicable for Gair Mazarua Khas land but not for Gair Mazarua Aam land. However, at the same time, the learned Appellate Court rejected the plea of adverse possession by holding that the plea of adverse 27 possession will not be applicable for Gair Majarua Aam land which is meant for public purposes as road, temple, mosque etc. The learned 1st Appellate Court also took a view that the right of adverse possession can be used as a shield but not as a sword meaning thereby that the plaintiffs cannot get a decree in a suit by raising a claim of adverse possession. The learned 1st appellate Court however ultimately recorded that it could be safely held that Aam Gair Mazarua land cannot be settled or cannot be in the rightful title/possession of any individual which is only meant for public purpose irrespective of any kind of possession for any period. The learned 1st appellate court thus held that a public land which is recorded as Aam Gair Mazarua land and Sarna Land for the purpose of offering rituals and religious works of scheduled tribe community cannot be held to be in the title and legal possession of Murat Sahu (the predecessor in title of the plaintiffs) on the ground of continued possession for any period.
49. This Court finds that the learned 1st appellate Court has not rejected the plea of adverse possession on the sole ground that it can be used only as a shield and not as a sword but has also considered the nature of land being Sarna - for religious use by community and that it was in forceful possession of the plaintiffs/their predecessor in interest.
50. In view of the judgement passed by the Hon'ble Supreme court reported in (2019) 8 SCC 729 (supra) relied upon by the appellants and also referred to in the 2nd substantial question of law, there is no doubt that the plea of adverse possession can be used not only as a shield but also as a sword; a person can not only protect his right to claim adverse possession as defendant in a suit but can also file a suit for declaration of his title through adverse possession by asserting that the title of real owner has extinguished and also seek permanent injunction restraining defendant from disturbing his possession. However, in paragraph 63 of the aforesaid judgement it has been held that with respect to the land meant for public utility, right of adverse possession should not accrue and that concerning such properties 28 dedicated to public cause, no rights can accrue by adverse possession. Paragraph 63 of the aforesaid judgement is quoted as under: -
"63. When we consider the law of adverse possession as has developed vis-à-vis to property dedicated to public use, courts have been loath to confer the right by adverse possession. There are instances when such properties are encroached upon and then a plea of adverse possession is raised. In such cases, on the land reserved for public utility, it is desirable that rights should not accrue. The law of adverse possession may cause harsh consequences, hence, we are constrained to observe that it would be advisable that concerning such properties dedicated to public cause, it is made clear in the statute of limitation that no rights can accrue by adverse possession."
51. In view of the aforesaid findings and in view of the paragraph 63 of the aforesaid judgement reported in (2019) 8 SCC 729 (supra), this Court is of the considered view that the appellants are not entitled for declaration of title through adverse possession with respect to the suit property in spite of having been held that plea of adverse possession can be claimed as a shield while defending a suit and also as a sword being a plaintiff in a suit.
52. So far as the judgement reported in (1981) 2 SCC 103 (Supra) which has been considered in paragraph 11 of the aforesaid judgement in (2019) 8 SCC 729 (supra) is concerned, the same also does not help the appellants in any manner as the property in the said case was belonging to municipality and was earlier settled in favour of the plaintiff. The plaintiff had based his claim on Hukumnama dated 17.04.1912 and had pleaded that even if the land belonged to the defendant municipality, he had acquired the title by adverse possession . It was held in the said case that if a person asserts a hostile title, even to a tank belonging to the municipality, and despite the hostile assertion of title, no steps were taken by the owner to evict the trespasser, his title by prescription would be complete after 30 years.
In the present case, admittedly there is no settlement in favour of the plaintiffs/predecessor-in-interest of the plaintiffs and they were in forceful possession of the suit property which is admittedly Sarna land and meant for public use of community for religious purposes .
29As held by the Hon'ble supreme court in para 63 of the judgement reported in (2019) 8 SCC 729 (supra) adverse possession cannot be claimed when the property is dedicated in public cause. The present case is a case of forceful possession of such land and the nature of land cannot change by efflux of time by using it for any other purpose after forceful possession. The argument of the appellants asserting the change in nature of land is rejected.
53. In view of the aforesaid paragraph 63 of the judgment passed in the case of Ravinder Kaur Grewal (Supra), and in the light of the nature of land involved in the present case, this Court is of the considered view that the learned first appellate Court has rightly refused to declare adverse possession in favour of the plaintiffs by considering the merits of the case. This Court is also of the view that no case of adverse possession has been made out by the appellants- plaintiffs.
54. The 2nd substantial question of law is accordingly answered in the aforesaid terms.
55. As a cumulative effect of the aforesaid findings and answers to the substantial questions of law, this second appeal is dismissed.
56. Pending interlocutory application, if any, is dismissed as not pressed.
57. Let this order be communicated to the learned Court concerned through 'FAX/email'.
(Anubha Rawat Choudhary, J.) Pankaj/Binit 30