Bombay High Court
A) Hari Rambhau Fud vs The Forest Range Officer on 6 February, 2014
Author: A.I.S. Cheema
Bench: A.I.S. Cheema
Second Appeal No.755/2012
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
SECOND APPEAL NO.755 OF 2012 WITH
CIVIL APPLICATION NO.12997 OF 2012
Rambhau Mhatarba Fud,
Deceased, through L.Rs.
1A) Hari Rambhau Fud,
Age 63 years
1B) Shankar Rambhau Fud,
Age 61 years,
1C) Bhausaheb Rambhau Fud,
Age 58 years,
1D) Lahanu Rambhau Fud,
Age 56 years
All Agriculturists, R/o Darewadi,
Taluka Sangamner,
District Ahmednagar. ... APPELLANTS
(L.Rs. Of Original Plaintiff)
VERSUS
1. The Forest Range Officer,
Division-1, Sangamner,
District Ahmednagar.
2. The Forest Range Officer,
Division-2, Sangamner,
District Ahmednagar
3. The Project Forest Range Officer,
Nagpur.
(Nos.1 to 3 to be served through
Government Pleader, High Court
of Bombay, Bench at Aurangabad)
::: Downloaded on - 13/02/2014 23:13:41 :::
Second Appeal No.755/2012
2
4. Tahsildar, Sangamner,
District Ahmednagar.
5. Collector, Ahmednagar.
6. The Government of India,
through Attorney General.
(through Standing Counsel for
Union of India, High Court of
Bombay, Bench at Aurangabad)
... RESPONDENTS
(Orig. Defendants No.1 to 6)
ig .....
Shri V.Y. Bhide, Advocate for appellants
Shri S.R. Palnitkar, A.G.P. for respondents
.....
CORAM: A.I.S. CHEEMA, J.
DATED: 6th February, 2014.
ORAL JUDGMENT :
1. Heard learned counsel for the appellants and learned A.G.P. for respondents. With the consent of learned counsel for the parties, heard finally.
2. I will refer to parties as arrayed in Trial Court. It is the case of appellants-plaintiff that the suit property agricultural land Gat No.151 (Old Survey No.125/1) from village Darewadi, Taluka Sangamner, District Ahmednagar was admittedly forest land and original plaintiff claimed ::: Downloaded on - 13/02/2014 23:13:41 ::: Second Appeal No.755/2012 3 that 25 acres land shown as per map annexed with the plaint, was in cultivating possession of the original plaintiff from 1950. Plaintiff claimed that he developed the land since 1957 and had been in continuous, uninterrupted adverse possession for more than 30 years and perfected the title. On 13.2.1996, possession of the plaintiff was obstructed by employees of the respondents-defendants and thus he brought the suit for declaration and ownership by adverse possession and for injunction. Respondent-
defendant No.2 Forest Range Officer, Division No.2, Sangamner defended the suit. It was claimed that the land concerned was forest land and that it was not allotted to the plaintiff and that the plaintiff was not in possession.
3. Parties brought on record necessary oral and documentary evidence. The Civil Judge, Senior Division, Sangamner tried the Regular Civil Suit No.149/1996 and held that the plaintiff proved continuous peaceful and unobstructed possession over suit land for more than 30 years and that the defendants were trying to obstruct his possession and consequently decreed the suit and restrained the defendants (respondents) from obstructing the possession of plaintiff.
::: Downloaded on - 13/02/2014 23:13:41 ::: Second Appeal No.755/2012 44. State carried the matter in appeal. District Judge-1, Sangamner, by judgment dated 26.7.2012, reversed the judgment and findings of the trial Court and allowed the appeal. The suit of the plaintiff came to be dismissed. District Judge examined the evidence of P.W.1 and observed that, it is nowhere pleaded in the plaint that any time the plaintiff had denied the title of the defendants to assert his hostile title regarding suit property. District Judge discussed the principles relating to adverse possession. It is found that, a private person, in order to confirm title against State, is required to prove 30 years of adverse possession. The suit land was owned by the State Government and in 1960 it was handed over to the Forest Department. District Judge found that the plaintiff had filed the suit that property was openly and continuously and without any interruption with the plaintiff for more than 30 years. According to the District Judge, the basic ingredients of asserting hostile title were not proved. The 7/12 extract (Exhibit 46) was discussed, which shows that from 1956-57 to 1968-69 Rambhau, the original plaintiff, was cultivating the suit land on Ek-Sal-Lawani. The Forest Department was shown in the ownership column and ::: Downloaded on - 13/02/2014 23:13:41 ::: Second Appeal No.755/2012 5 Rambhau was shown as a cultivator. The District Judge discussed that the suit was brought in 1996 and there was no record to show that from 1969 till 1996 when the suit was filed, there was any proof of possession of the original plaintiff. It was observed that only because till 1968-69 the original plaintiff was in possession, it cannot be said that on date of filing of the suit also the possession was established.
District Judge discussed the evidence of P.W.2, where it was admitted that some parts of Gat No.151 had been allotted to different persons. Thus, continuation of possession could not be presumed. District Judge did not find substance in the case of the plaintiff and allowed the appeal and suit came to be dismissed.
5. Now when the matter has come up in Second Appeal brought by legal representatives of deceased plaintiff Rambhau, learned counsel for the appellant initially submitted that, the trial Court had observed that original plaintiff was in possession in the year 1957 and had become deemed tenant. Learned counsel, however, subsequently has not pressed the case under tenancy has admitted that no such case was made out by the original plaintiff in the plaint or in evidence. Trial Court put in a ::: Downloaded on - 13/02/2014 23:13:42 ::: Second Appeal No.755/2012 6 stray sentence on its own of deemed tenant. Even otherwise, under Section 88 of the Bombay Tenancy and Agricultural Lands Act, 1948, such plea against Government land will not stand.
6. Plaintiff proved on record Exhibit 46, the 7/12 extract where his possession between 1956-57 up to 1968-69 was shown against "Reet 3". Counsel for appellant as well as learned A.G.P. admit that this denotes cultivating by way of lease. If the cultivation was in the capacity of lease, the same cannot be stated to be adverse to the real owner which was the State. From 1968-69 till the filing of suit on 15.2.1996, it was a period less than 30 years and even if it is accepted for a moment that in the said period original plaintiff asserted adverse possession, it would not be 30 years for the original plaintiff to be able to say that his title has become ripe by way of adverse possession.
7. In the matter of of Konda Lakshmana Bapuji Vs. Govt. of A.P. & ors., reported in (2002) 3 SCC 258, it was observed in para 53 as under :
"53. The question of a person perfecting title by adverse possession is a mixed ::: Downloaded on - 13/02/2014 23:13:42 ::: Second Appeal No.755/2012 7 question of law and fact. The principle of law in regard to adverse possession is firmly established. It is a well settled proposition that mere possession of the land, however long it may be, would not ripen into possessory title unless the possessor has animus possidendi to hold the land adverse to the title of the true owner. It is true that assertion of title to the land in dispute by the possessor would, in an appropriate case, be sufficient indication of the animus possidendi to hold adverse to the title of the true owner. But such an assertion of title must be clear and unequivocal though it need not be addressed to the real owner.
For reckoning the statutory period to perfect title by prescription both the possession as well as the animus possidendi must be shown to exist. Where, however, at the commencement of the possession there is no animus possidendi, the period for the purpose of reckoning adverse possession will commence from the date when both the actual possession and assertion of title by the possessor are shown to exist. The length of possession to perfect title by adverse possession as against the Government is 30 years."
8. In the matter of State of Rajasthan Vs. Harphool Singh (Dead) through his L.Rs., reported in (2000) 5 SCC 652, it was observed in para 13 as under :
"13. . . . . . . . . . . . . . . . . . Indusputedly the State was the owner and the question is as to whether its title has been extinguished and the plaintiff had acquired and perfected title to the same by adverse possession. In order to substantiate such a claim of adverse possession the ingredients of open, hostile ::: Downloaded on - 13/02/2014 23:13:42 ::: Second Appeal No.755/2012 8 and continuous possession with the required animus, as laid down by the courts should be proved for a continuous period of 30 years."
9. Looking to these judgments of Hon'ble the Supreme Court, it is clear that mere possession howsoever long, would not ripen into possessory title unless the possessor has animus possidendi to hold the land adverse to the title of the true owner. It is necessary to show such assertion of adverse title up to the date of filing of suit. In the present matter there are no pleadings or evidence to establish adverse possession. There is no satisfactory material to show that for more than 30 years before filing of suit there was possession adverse to State. Rather there is evidence that during the period some parts of land from the Gat number concerned had been allotted by State to different persons. The trial Court very casually and cursorily, in a judgment having reasonings of hardly one and a half page, decreed the suit in favour of the plaintiff without examining anything. In fact the judgment of trial Court nowhere refers to even the word of "adverse possession". District Judge was right in upsetting the said judgment.
::: Downloaded on - 13/02/2014 23:13:42 ::: Second Appeal No.755/2012 910. There is no question of law made out in the present appeal, leave aside, substantial question of law.
The Second Appeal is dismissed with costs.
11. In view of dismissal of the Second Appeal, Civil Application No.12997/2012 also stands dismissed.
(A.I.S. CHEEMA, J.) fmp/sa755.12 ::: Downloaded on - 13/02/2014 23:13:42 :::