Madhya Pradesh High Court
State Of M.P. vs Devgir on 31 January, 2017
1
High Court of Madhya Pradesh: Bench at Indore
Single Bench: Hon'ble Shri Justice Ved Prakash Sharma
Second Appeal No. 137/1999
State of M.P. (Through Collector)
Versus
Dev Gir and another
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Shri Sudhanshu Vyas, learned counsel for the appellant/State. Shri B.I. Mehta, learned Sr. Counsel with Shri J.B. Mehta, learned counsel for the respondents.
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J UD G E M E N T (Passed on 31/01/2017) This is a second appeal by appellant/defendant (State) under Section 100 of the Code of Criminal Procedure, 1973 (for short 'The Code') against judgment and decree rendered by First Additional District Judge, Ujjain in regular Civil appeal No.58-A/1997, affirming the judgment and decree dated 30/06/1997 passed by the Court of Civil Judge, Class-I, Barnagar in Civil Suit No.74-A of 1984.
02. The civil suit was filed by Dev Gir - Respondent No.1 and his brother Bihari Gir (since deceased), represented through his legal representatives, for declaration of 'Bhumiswami' rights and permanent injunction in respect of agricultural land bearing survey No.2, 3, 4, 5, 6, 7, 12, 13, 15, 17, 18, 19, 20, 22, 23, 24, 28, 29, 30, 31, 32, 33, 34 and 211(in total 24) ad-measuring 11.768 hectare situated at village Narsinga, Tehsil Barnagar, District - Ujjain (herein after referred as 'The disputed land') .
203. The respondents/plaintiffs averred that they in the capacity of owner are in continuous and uninterrupted possession of 'The disputed land' for past 200 years since the time of their fore-fathers and are carrying on agricultural operations over the same and also paying the land revenue. In alternate, it was averred that being in long, continuous and uninterrupted possession for more than 200 years, the respondents/plaintiffs have acquired 'Bhumiswami' rights over 'The disputed land' by adverse possession. It was further averred that though the appellant/defendant (State) has no right/title or interest over 'The disputed land', which neither belonged to any 'Devasthan' nor is a 'Muafi' land, still the appellant/defendant (State) is trying to interfere with the peaceful possession of the respondents/plaintiffs over 'The disputed land' and trying to auction and lease out the same in an unauthorized manner.
04. The appellant/defendant (State) resisted the suit Denying the averments made by the respondents/plaintiffs regarding their 'Bhumiswami' rights and continuous and uninterrupted possession over 'The disputed land' or acquisition of title by adverse possession. It was averred that ''The disputed land'' belongs to 'Devasthan' and that the appellant/defendant (State) is holding the same in the capacity of Manager. Raising objection with regard to non-joinder of the 'Devasthan' as defendant, and non-maintainability of the suit under Section 57(2) of M.P. Land Revenue Code, 1959, a prayer for dismissal of the suit was made.
05. The learned trial Court, vide judgment dated 30/06/1997, though did not find it proved that the respondents/plaintiffs are 3 'Bhumiswami' of 'The disputed land', however, it was found proved that they since the time of their fore-fathers, are in continuous and uninterrupted possession of 'The disputed land' and, therefore, have acquired title by way of adverse possession. Accordingly, a decree for declaration and injunction was passed in their favour.
06. The judgment passed by the learned Trial Court was unsuccessfully challenged by the appellant/defendant(State) in first appeal, however, the appellate Court, vide the impugned judgment concurred with the findings arrived at by the learned trial Court as regards acquisition of title by adverse possession on account of long and uninterrupted possession. Feeling aggrieved, the appellant/defendant (State) preferred this appeal, which was admitted by this Court on 03/05/1999 on the following substantial questions of law:
"(1) Whether the judgment and decree passed by the Court below is inconsistent with the evidence on record?
(2) Whether the judgment and decree passed by the Court below is against the provisions of law and, therefore, has become illegal and perverse?"
07. It is contended by learned counsel for the appellant that issue No.1 with regard to title of the respondent/plaintiffs was not found proved by learned trial Court in their favour because 'The disputed land' as per various documents adduced in evidence by them was found recorded as 'Muafi Bhumi'. It is submitted that respondent/plaintiffs had taken totally inconsistent pleas to the effect that they are title holders for past 200 years and that they had acquired title by adverse possession. It is contended that neither it was permissible to take such inconsistent 4 pleas nor it was established from the evidence adduced by the parties that the respondent/plaintiffs have preferred their title by adverse possession, therefore, both the Courts below have seriously erred in decreeing the suit in their favour.
Re. Substantial Question No.1:
08. Learned counsel for the appellant, referring to Ex.P/8 - certified copy of 'Khasra' register of year 1951-52 and Ex.P/7 - certified copy of 'Khatoni' of year 1963-1964, has invited attention to para-8 of the judgment passed by learned trial Court. It is submitted that entries in Ex.P/8, as held by learned trial Court in para-8 and para-7 of the judgment, are not with regard to disputed land, rather these entries concerning survey Nos.21, 37, 38, 39, 42, 63, 203, 206, 274 & 275, village Narsinga, pertain to some other agricultural land of one Bapurao More, in respect of which plaintiffs Devi Gir and Bihari Gir were recorded as 'Pukhta Maurosi'. Ex.P/7, which is certified copy of 'Khatoni' for year 1963-64 is again with regard to aforesaid 10 survey numbers in which Dev Gir and Bihari Gir are recorded as 'Bhumiswami'. It is submitted that the learned appellate Court, contrary to this finding recorded by learned trial Court in para 10 of the impugned judgment, has arrived at a finding that respondent/plaintiff are found to be 'Bhumiswami' on the basis of entries in Ex.P/8 and P/7. It is contended that this finding recorded by learned appellate Court, being contrary to the evidence on record, suffers from serious perversity.
09. Further inviting the attention of this Court to Ex.P/1- 'Bhoo Adhikar Evam Rin Pustika Bhag-1, and Ex.P/2-'Bhu Adhikar Evam Rin Pustika Bhag -2, and Ex.P/6-certified copy of 'Khatoni' for year 5 1972-73 it is submitted that in these three documents, which pertain to year 1972 to 1975, 'The disputed land' is recorded as 'Maufi Devsthan' , therefore, the learned appellate Court committed a grave factual error in holding that entry of 'Maufi Devsthan' was made abruptly in Ex.P/6 'Khatoni' of year 1972 without any basis. It is further submitted by the learned counsel for the appellant/defendant that it was for the respondents/plaintiffs to prove that entries in ExP/1 & P/2 for year 1972-73 and 1975 are erroneous. This could have been done by bringing in evidence the certified copy of relevant registers for the period prior to year 1972-73, however, no such evidence was brought by them before the trial Court, therefore, the view taken by the learned appellate Court being perverse, is totally unsustainable.
10. Per contra, learned counsel for the respondents/plaintiffs has submitted that the learned trial Court on the basis of evidence available before it has found their long and continuous possession on 'The disputed land' and on that basis has further found that the respondents/plaintiffs have acquired title by adverse possession, a finding sustained by the learned appellate Court.
11. Placing reliance on Govindaraju v. Mariamman, 2005(2) SCC 500, it is contended on behalf of the respondents that concurrent finding of fact with regard to acquisition of 'Bhumiswami' rights by respondents/plaintiffs has been recorded by the Courts below, therefore, the same cannot be interfered with by this Court in exercise of jurisdiction under Section 100 of CPC.
12. In this connection, it is noticeable that while concurrent findings of fact based on evidence cannot be interfered with, however, findings of fact which are contrary to the evidence on record and are 6 perverse can be set aside by the High Court in appeal under Section 100 CPC. In this connection, we can usefully refer to the observations of the apex Court in Bandar Singh and others vs. Nihal Singh and others, (2003) 4 SCC 161.
"......So far as the question of powers of High Courts under Section 100 CPC is concerned, it needs no discussion. If the findings of the subordinate Courts on facts are contrary to the evidence on record and are perverse, such finding can be set aside by the High Court in appeal under Section 100 CPC. A High Court cannot shut its eyes to perverse findings of the Courts below."
13. Learned counsel for the respondents has further relied upon Kalika Prasad and another vs. Chhatrapal Singh, 1997 RN 81 (SC), Bandar Singh (supra), and a full bench decision of this Court in Kashiram Gopal Gari vs. Nathu Hira and another, 1980 MPLJ 670, in support of his plea that 'Bhumiswami' rights can be acquired by adverse possession. The proposition of law in this regard is not disputed, however, it is required to be examined whether the findings arrived at by the learned trial Court and maintained by the learned appellate Court suffer from perversity ?
14. On perusal of judgments passed by learned trial Court as also by the learned appellate Court, it is clear that learned trial Court took a clear-cut view that Ex.P/8, the copy of land record of 1951-52 and Ex.P/7, copy of 'Khatoni' for year 1963-1964 does not pertain to 'The disputed land' because the same are with regard to survey Nos.21, 37, 7 38, 39, 42, 63, 203, 206, 274 & 275. This finding based on evidence, was altogether ignored by the learned appellate Court (para-10) while taking a view that plaintiff's 'Bhumiswami' title was proved on the basis of Ex.P/8. On perusal of Ex.P/7 and P/8, it is clear that these documents, as found by the learned trial Court, did not pertain to 'The disputed land' which comprises of 24 survey numbers measuring 11.768 hectare while the land recorded in Ex.P/7 and P/8 comprises of 10 survey numbers (supra). No document has been filed to establish that the 10 survey numbers recorded in Ex.P/7 and P/8 were subsequently converted into 24 survey numbers pertaining to 'The disputed land', therefore, the contra finding recorded by the learned trial Court is ex- facie, perverse being against the evidence on record.
15. Further, it is noticeable that in Ex.P/1, 'Bhu Adhikar Evam Rin Pustika' of 'The disputed land' issued in 1975, it is clearly recorded that 'The disputed land' is 'Muafi Devsthan'. Entry in this regard is there on the title page as well as first page of Ex.P/1. Further, in Ex.P/7, certified copy of 'Khatoni' for year 1972-73 disputed land is recorded as 'Muafi Devsthan'. No entry previous to these entries showing that 'The disputed land' was recorded as 'Bhumiswami' in favour of Dev Gir and Bihari Gir were brought in evidence by respondents/plaintiffs, therefore, the appellant/defendant (State) could not have been burdened with a duty to adduce evidence to establish as to how the entry of 'Maufi Devsthan' came to be recorded in year 1972-73 (Ex.P/6). The law is well settled that the plaintiff, in order to succeed, should stand on his own feet and must prove its case. The weakness of the defendant may not be a ground to draw adverse inference against him unless the plaintiff has discharged the initial burden as per the pleadings. The 8 respondents/plaintiffs did not adduce before the trial Court, any evidence that they were recorded as 'Marosi Krashak' or 'Bhumiswami' on 'The disputed land' prior to 1972-73 and that the entry in that regard in year 1972-1973 was arbitrarily or erroneously altered by revenue officials, therefore, contrary view taken by the learned appellate Court in para-10 of the impugned judgment, being against the settled principles of law, is totally unsustainable.
16. As the respondents/plaintiffs averred that they were in continuous possession of 'The disputed land' for past 200 years as owners, hence, they were required to establish by plausible evidence that as to how the title/ownership/'Bhumiswami' rights in the land were acquired by them and that how and in what manner the predecessor-in- interest was having title and possession over 'The disputed land'. Indeed respondents/plaintiffs were required to establish the transmission and flow of title by bringing before the Court necessary documents. Though Omkarlal (P.W.2) has deposed that Dev Gir and Bihari Gir (plaintiffs) got 'The disputed land' from their father Manga Gir, however, not a single document has been produced to show that Manga Gir was, at any point of time, having any right, title or interest over 'The disputed land'. Therefore, the finding recorded by the learned Courts below that the respondents/plaintiffs were in continuous and peaceful possession of 'The disputed land' as owners thereof for past 200 years, being against evidence on record, is totally perverse and hence unsustainable.
17. Though Ramesh Gir (P.W.1), Anand Gir (P.W.3) and Mahadev Gir (P.W.4) have deposed that there is no temple or 'Math' in village Narsinga, however, Omkarlal (P.W.2) in para-4 of the cross-
9examination has admitted that there is a 'Math', 'Chhatri' and 'Shiv Mandir' in village Narsinga; which shows that Ramesh Gir (P.W.1), Anand Gir (P.W.3) and Mahadev Gir (P.W.4) have concealed true facts on a vital point. It is a matter of common sense that to categorise a land as 'Devsthan Maufi' does not necessarily require that the 'Devsthan' or 'Math' or temple should be situated in that very land. In the instant case it has come that 'Math', 'Chhatri' and 'Shiv Mandir' are there in village Narsinga. It has further come in the evidence that 'The disputed land' up to year 1981 was consistently recorded as 'Maufi Devsthan'. The burden of prove that these entries were wrong, was very much on the respondents/plaintiffs which was not discharged by them, therefore, contrary view taken in this regard by the learned trial Court is totally perverse. First substantial question of law is answered accordingly.
Re. Substantial Question No.2:
18. In the aforesaid premises, when it is well established that 'The disputed land' was recorded as 'Mufai Devasthan' and that a 'Math', a 'Chhatri' and a 'Shiv Mandir' are situated in village Narsinga, whether the finding recorded by learned trial Court and affirmed by learned appellate Court that respondents/plaintiffs acquired title by adverse possession over 'The disputed land' because of long and uninterrupted possession is legally sustainable ?
19. As regards acquisition of title by adverse possession, it is apposite to state that in order to support the claim on the basis of adverse possession, necessary averments with regard to point of time when the possession was acquired, when it become adverse to the true owner and further that it was continuous and hostile to the knowledge 10 of the entire world including the true owners as per off quoted latin phrase 'nec vi', 'nec clam' 'nec precario' must be clearly averred and such averments should be proved by plausible evidence.
20. In Karnataka Board of Wakff v. Government of India 2004(10)SCC779, Hon'ble the apex Court has summarized the essentials of adverse possession as under:
"11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non- use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. ( See S.M. Karim v. Bibi Sakina (AIR 1964 SC 1254), Parsinni v. Sukhi(1993) 4 SCC 375 and D.N. Venkatarayappa v. State of Karnataka (1997) 7 SCC 567). Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and
(e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his 11 adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma (1996) 8 SCC 128)."
21. We can further usefully refer to the observations made by the apex Court in Saroop Singh v. Banto, 2005 SCC 330, wherein it has been held by the apex Court that claim of title of the property and adverse possession are, in terms, contradictory. Identical view was expressed by the apex Court in AnnasahebBapusahebPatil v. Balwant, 1995 (2) SCC 3543, relevant observations whereof are as under:
"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."
22. In the instant case, two aspects are noticeable, firstly, the respondents/plaintiffs have come with inconsistent pleading of acquisition of title through fore-fathers and acquisition of title by adverse possession which, in view of the law referred to herein above, is impermissible. Secondly, the respondents/plaintiffs have not clearly averred as to at what point of time the possession commenced and at what point of time it became adverse to its true owner. It is further not averred that it was hostile to the knowledge of the true owner and also against the entire world and that it remained uninterrupted. Thus, requisite pleading for adverse possession are totally missing. Neither the trial Court, nor for that matter, the learned appellate Court has adverted to the legal aspect as to whether necessary pleading for acquisition of title, on the basis of adverse possession, have been made or not.
1223. As the person holding the land against the true owner has no equities in his favour, therefore, as held in a series of judgments, a person taking such plea must plead and prove all requisite conditions in that behalf.
24. As regards plea of long possession, even if it is accepted for the sake of argument that the respondents/plaintiffs were in possession of 'The disputed land' for long still from Ex.P/1 'Bhoo Adhikar Evam Rin Pustika' - a document brought forth before the trial Court by the plaintiffs, it clearly transpires that in 1975, 'The disputed land' was shown as 'Maufi Devsthan' . Further in Ex.P/6, which has come from the possession of the respondents/plaintiffs, and as per endorsement was issued on 27.12.1972 as a true copy, there is an entry of 'Maufi Devsthan'. The respondents/plaintiffs never opposed the entry with regard to 'Maufi Devsthan' in respect of disputed land since 1972 till 1981, when the suit for declaration and injunction was filed, which indicates that during this period, they did not claim a hostile title over 'The disputed land'.
25. In Mod. Ali vs. Jagdish Kalita, 2004(1) SCC 371, it has been held that 'animus possidendi' is one of the ingredients of adverse possession and unless the person possessing the land has the requisite animus, the period of prescription does not commence. In the instant case, it cannot be said that from 1972 till the filing of the suit, the plaintiffs had requisite animus to possess the land as owner hostile to the interest and knowledge of the owner, therefore, plea of acquisition of title by adverse possession cannot be accepted.
1326. The learned trial Court totally over-looked the aforesaid factual and legal aspects of the case and in a very casual manner recorded a finding that the respondents/plaintiffs had acquired title by adverse possession. Curiously enough, the appellate Court has recorded finding in para-10 that the 'Bhumiswami' title of respondent/plaintiffs is proved on the basis of evidence adduced by them still, the finding recorded by the learned trial Court with regard to acquisition of title by adverse possession has also been endorsed, something which was not permissible under the law.
27. In view of the aforesaid, there cannot be two opinions that the findings recorded by the learned trial Court and upheld by the learned appellate Court that the plaintiffs/respondents have become 'Bhumiswami' of 'The disputed land' by adverse possession, being totally against law and the evidences and further in absence of necessary pleading, cannot be sustained. The second question of law is answered, accordingly.
28. In view of the aforesaid, the judgment and decree passed by the learned trial Court as also by learned appellate Court being contrary to the law and evidence are liable to be reversed. Resultantly, this appeal is hereby allowed and the judgment and decree passed by learned trial Court as also the judgment and decree passed by learned appellate Court affirming the same are hereby set aside.
29. In the facts and circumstances of the case, parties to bear their costs.
(Ved Prakash Sharma) Judge soumya/sumathi