Madhya Pradesh High Court
Dalchand vs The State Of M.P. & Anr on 15 January, 2013
1 S.A No.900/1996
HIGH COURT OF MADHYA PRADESH AT JABALPUR
SECOND APPEAL NO.900/1996
APPELLANT : DOLCHAND
Vs.
RESPONDENTS : STATE OF M.P.
AND ANOTHER.
Present : Hon'ble Shri Justice R.S. Jha.
For the appellant : Shri Sankalp Kochar, Advocate.
For the respondent/State : Shri Sudesh Verma, G.A
For the respondent no.2 : Ms. Preeti Khanna, Advocate.
--------------------------------------------------------------------------------------
JUDGMENT
(15/01/2013) The appellant/Plaintiff has filed this appeal being aggrieved by the judgment and decree dated 10.10.1996 passed by the Additional District Judge, Waraseoni in Civil Appeal No.61A/96 affirming the judgment and decree dated 11.10.1993 passed by the Second Civil Judge Class-II, Waraseoni in Civil Suit No.182-A/91, whereby the suit filed by the appellant/Plaintiff, claiming title in respect of part of Khasra No.100/15 of village Mudiwada, Patwari Halka No.10, Tehsil Katangi (Waraseoni) District Balaghat, was dismissed.
2. The suit was filed by the appellant/Plaintiff on the assertion that he was in possession of the land in question which belongs to the Government since 1934 and, therefore, could not be dispossessed by the respondents. On the basis of the aforesaid possession the appellant/Plaintiff had 2 S.A No.900/1996 claimed declaration and title asserting adverse possession over the same.
3. This Court has admitted this second appeal on the following substantial questions of law:-
"1. Whether the plaintiff has perfected his title by prescription being in continuous adverse possession since 1934 ?
II. Whether the findings recorded by the learned first appellate Court are vitiated as it has not considered the true effect of the evidence led by the appellant ?"
4. It is submitted by the learned counsel for the appellant that the courts below have failed to take into consideration the evidence of the three plaintiff witnesses who have affirmed the claim and assertion of the appellant/Plaintiff regarding possession of the land in question since 1934 and have thereby wrongly dismissed the suit filed by the appellant. It is also asserted that as the appellant/Plaintiff was in possession of the land for more than 30 years, he had perfected his title by adverse possession and was, therefore, entitled to a declaration to that effect.
5. The learned Govt. Advocate appearing for the respondent/State submits that the land in question is recorded in the revenue records as Nistar land under the head of Ghas (grassland) and that the appellant/Plaintiff has only produced exhibits P-2 and P-3 which are the Khasra 3 S.A No.900/1996 entries for the period 1976 to 1985 to assert his claim and has not produced any document to indicate or establish that he was in possession of the land since 1934. It is further asserted that the appellant/Plaintiff has not made any specific averment in the Plaint or in his evidence clearly specifying and indicating as to the date and time from when his possession became adverse.
6. The learned counsel for respondent no.2 Municipality, Katangi has submitted that the appellant/Plaintiff has not made any assertion in his plaint or in his statement as to when did his possession became adverse. It is submitted that proceedings as an encroacher against the appellant/Plaintiff was taken up in the year 1980 in which he has admitted that he was an encroacher and in such circumstances no fault can be found with the conclusions recorded by the courts below. The learned counsel for respondent no.2 has relied upon decision of this Court rendered in the case of General Mines and Quarries Ltd. vs. Kartar Singh Prem Singh and Others, 1992 MPLJ 563, in support of her submission.
7. From a perusal of the judgment of the trial court and the appellate court as well as the oral and documentary evidence on record, it is apparent and clear that the appellant/Plaintiff has not asserted or established the fact 4 S.A No.900/1996 that his possession of the land was continuing since 1934 nor has he pleaded or proved that his possession became adverse, open and hostile to that of the State from a particular date. It is also clear that the documents filed by the appellant/Plaintiff, exhibits P-2 & P-3, only relate to the year 1976 to 1985 and there is no documentary evidence to the effect that he was in possession of the land in question since 1934 or that any right was conferred upon him on the basis of his possession on coming into force of the M.P. Land Revenue Code in the year 1959.
8. It is further clear that both the courts below have negatived the claim of the appellant/Plaintiff based on adverse possession on recording a concurrent finding of fact to the effect that the appellant/Plaintiff has not been able to assert or establish the date and time from which his possession became adverse, open and hostile to that of the State which is a necessary pre-requisite for claiming adverse possession and in such circumstances have dismissed the suit and appeal filed by the appellant.
9. Even before this Court, the learned counsel for the appellant has failed to point out any evidence to the effect that the appellant/Plaintiff's possession became open, hostile and adverse to that of the State from a particular date which is necessary to be pleaded and proved as has been held by 5 S.A No.900/1996 the Supreme Court in the cases of State of Rajasthan vs. Harphool Singh (dead) through his LRs, (2000) 5 SCC 652, V. Rajeshwari (Smt.) vs. T. C. Saravanabava, (2004) 1 SCC 551; T. Anjanappa and Others vs. Somalingappa and Others, (2006) 7 SCC 570 and General Mines and Quarries Ltd. (supra). The only assertion is regarding possession and not adverse possession which has also not been proved or established.
10. In view of the aforesaid facts and circumstances, I am of the considered opinion that both the substantial questions of law framed by this Court in the present appeal deserve to be answered against the appellant.
11. The appeal, filed by the appellant, being meritless is accordingly dismissed. In the facts of the case there shall be no order as to the costs.
( R. S. JHA ) JUDGE 15/01/2013 mms/-