It seems that while framing the issues, pleadings of the parties were read in piece-meal. It also appears that fundamentals of law of burden of proof were ignored which resulted in framing of as many as 16 issues. The case of the plaintiffs is that they are the owners of the suit plot; whereas the defendants claimed that they are in possession of the same and acquired title to it by adverse possession. Since the suit based upon title is governed by article 65 of the Limitation Act and the limitation starts from the date when the possession of the defendants becomes adverse, the question of framing issue of limitation does not arise. The burden to prove acquisition of title by adverse possession being on the party who sets up such a case and limitation of 12 years starts when the possession of such party becomes adverse to its true owner, only such issue was required to be framed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FIRST APPEAL No. 212/1996
Rukhamini Pandurang Sansthan,
...V E R S U S...
The State of Maharashtra,
CORAM: M. N. GILANI, J.
DATED : AUGUST 14, 2012
This appeal is directed against the judgment and decree
dated 25.9.1995 passed by the Civil Judge, Senior Division, Yavatmal in
Special Civil Suit No.86/1994, thereby the suit filed by the plaintiffs/
appellants herein, for the reliefs of possession, mandatory injunction,
2]
came to be dismissed.
The suit property is the land bearing Plot No.1 in Nazul
Sheet No.44 of village Pimpalgaon. One Shriram Yadavji Sonar was the
original owner of land survey no.53, area 23.23 AcreGunthas (A.G.).
On 19.2.1904 he executed a will bequeathing this entire field in favour
of Rukhamini Pandurang Sansthan, at Yavatmal. Later on Rukhamini
Pandurang Sansthan became a public trust under the Bombay Public
Trust Act bearing registration No.A145/Yavatmal. Out of the total area
of 23.23 A.G. one acre on SouthEastern corner was put to non
agricultural use after obtaining necessary permission vide revenue case
No.2/XXVIII/193031 which is the subject matter of the present suit. In
the year 1962 vide land acquisition case No.5/65/6162Yavatmal, the
land area 21.5 A.G. was acquired by the Government of Maharashtra for
establishment of Industrial Training Institute [in short I.T.I.]. The award
to this effect was passed on 30.3.1967. Possession of the same was
handed over to the concerned authority. From the said field survey
no.53, 18 gunthas land was acquired for Yavatmal – Dhamangaon Road.
Ultimately, the plaintiffs' ownership remained only over the suit plot. In
the year 1991 the plaintiffs received a notice from the Collector,
Yavatmal demanding nonagricultural assessment of Rs.26,000/ in
respect of the suit plot. This made the office bearers of the trust to search
for the records and also identify the suit plot. It was noticed that along
with the land area of 21.5 A.G., the possession of the suit plot was also
taken over by the defendants and made constructions over the same.
After being satisfied from the record about ownership etc over the suit
plot, notice under section 80 was issued to the defendants calling upon
them to hand over the possession of the same. It was neither replied nor
3]
complied with. Therefore, the suit.
The defendants did not dispute the entity of the plaintiffs
as a public trust. It was not disputed that under acquisition proceedings
land area 21.5 A.G. was acquired out of the field survey no.53 for
establishment of Industrial Training Institute. However, it was denied
that one acre land i.e. the suit plot was converted to nonagricultural
use. As regards the rest of the averments, the defendants showed
ignorance.
4]
The defendants putforth a specific case that while
handing over possession of 21.5 A.G. of land out of field survey No.53,
possession of this one acre land – suit plot was also given to the
defendants on 25.3.1963. Since then defendants are in possession of the
suit plot and as such acquired title to it by adverse possession. Then
there is a specific admission that the land area of one acre – suit plot is
being used by the defendants particularly by defendant no.2, however,
denied that it is being used without any right, title or interest thereon, as
alleged by the plaintiffs. This fact is further admitted, in a different form
by pleading that since the suit plot was lying fallow and idle, while
handing over the possession of 21.5 A.G. land, it was also voluntarily
given in possession of the defendants by the plaintiffs on 25.4.1963.
5]
On the basis of the rival pleadings, the learned trial court
framed as many as 17 issues. The first being about proper valuation of
the suit, which came to be deleted later on. The parties adduced
evidence oral as well as documentary. On behalf of the plaintiffs its
trustee – P.W. 1 Dattatraya Kulkarni entered the witness box. In rebuttal
three witnesses, mainly the office bearers of I.T.I. were examined. After
considering the evidence brought on record, the learned trial court
answered nine issues relating to title to the suit plot in favour of the
plaintiffs. The issues no.12, 13, 14 which cast burden upon the
defendants to prove acquisition of title to the suit plot by adverse
possession and to prove that suit was time barred, were answered in
6]
their favour. This resulted in dismissal of the suit and hence this appeal.
Mr. Khare, the learned counsel appearing for the
appellants criticized the approach of the trial court particularly about the
findings given on the point of limitation and adverse possession.
According to him, the learned trial court was totally oblivious of a well
defined distinction between the term “adverse possession” and
“possession simplicitor”. The possession howsoever long cannot be
adverse unless it is coupled with 'animus possidendi'. It further required
that such possession should be hostile to its true owner. These basic
requirements having not been satisfied by the defendants and therefore,
the judgment and decree is not sustainable in law, he urged.
7]
Mr. Bhagde, the learned A.G.P. appearing for the
defendants / appellants herein, supported the judgment and decree. He
submits that right from the year 1963 defendants have been in
possession of the suit plot. They have established by adducing evidence
that said possession was continuous, uninterrupted and as an owner.
Plaintiffs were aware of the possession of the defendants over the land
area 21.05 A.G. as well as the suit plot. In that view of the matter,
learned trial court did not commit any error while answering issues
no.13 and 14 in favour of the defendants, he urged.
It seems that while framing the issues, pleadings of the
8]
parties were read in piecemeal. It also appears that fundamentals of
law of burden of proof were ignored which resulted in framing of as
many as 16 issues. The case of the plaintiffs is that they are the owners
of the suit plot; whereas the defendants claimed that they are in
possession of the same and acquired title to it by adverse possession.
Since the suit based upon title is governed by article 65 of the Limitation
Act and the limitation starts from the date when the possession of the
defendants becomes adverse, the question of framing issue of limitation
does not arise. The burden to prove acquisition of title by adverse
possession being on the party who sets up such a case and limitation of
12 years starts when the possession of such party becomes adverse to its
true owner, only such issue was required to be framed. Be that as it may.
9]
Points arise for my consideration are :
1] Whether the plaintiffs are the owners of the
2]
suit plot?
Whether the defendants acquired title to the
suit plot by adverse possession?
10]
By pleading that the possession of the suit plot was also
surrendered along with the land acquired and they acquired title to it by
adverse possession, the defendants to a great extent discharged the onus
which in fact lay upon the plaintiffs to prove the title to the suit land and
added to this are findings recorded by the trial court in favour of the
plaintiffs. It is relevant to reproduce contents in the written statement at
paragraph 3 & 4 as under:
3.
.....It is submitted that the possession of 21 acres 5
gunthas land of field S.No.53 and other 1 acre which is subject
matter of this suit of the entire land was given in possession of
defts. on 25.3.63 and accordingly possession receipt for 21 acres
5 gunthas was given to the Revenue Authority and from that date
suit land of 1 acre is in possession of defts. no. 1 to 4
continuously, peacefully without any interruption as a owner
thereof up to this date, and the deft. have acquired the right by
adverse possession in it, of full and complete ownership.....
.....It is true that the said land of 1 acre which is plot
is being used by the defts. and particularly by the defts. no. 2 but
it is denied that it is being used without any right, title or interest
thereon as alleged by the plff.”
“4.
It is admitted that the defts. no. 2 has made barbed
wire fencing to the land which was acquired by the State and put
in possession including 1 acre of land more also referred to above
as suit land. It is admitted that while making various
construction works the approach roads are constructed by the
defts. no. 2 as owner thereof and the deft. no. 2 has fixed barbed
wire fencing to plot no.1, sheet no.44, but it is denied that it was
done without any right, title, interest thereon as alleged by the
plff.......
.....The land was lying fallow and idle and it seems
that while giving the possession of 21 acres 5 gunthas of land,
this 1 acre of land was also voluntarily given in possession of the
defts. by the plff. on 25.3.63 as referred above, which is situated
eastsouth corner of the said field and may have been numbered
as plot no.1 sheet no.44 as alleged by the plff.....”
.....It is admitted that because of the fencing to 1 acre
of the land i.e. plot no.1, sheet no. 44 particularly on the eastern
and southern side of the same, it has become impossible for the
plff. to enter into its plot as alleged, but it is submitted that the
plff. has lost all the right, title and interest in the property i.e. 1
acre of land which is Nazul plot no.1, sheet no.44 referred to
above as suit land because plff. has totally lost its right, title and
interest by virtue of adverse possession by the defts. of the said
land from 25.3.63 because the deft. no. 1 to 4 are in exclusive
possession of the said land.....”
Exhibit 51 is the notice issued by the plaintiffs from the
11]
office of the Collector, Yavatmal calling upon them to deposit the
amount in respect of nonagricultural assessment in respect of the plot
no.1 in a Nazul Sheet No.44 area 43,6700 sq.ft. at Yavatmal. The
amount demanded was Rs.32,528/. Exhibit 52 is the Tipan Utara of the
land survey no.53. It shows that the total area of the land was 22.23 A.G.
Exhibit 53 is the original order passed by the Assistant Settlement
Officer. This reveals that one acre land out of field survey no.53 was
converted to non agricultural use vide Revenue case No.267/1B/1930
31. Exhibit 54 is the map drawn by the surveyor attached to the office of
the District Land Records. Suit land has been shown in green colour with
the remark that the same is in possession of the defendants. This map is
in pursuance to the measurement dated 15.6.1992. This evidence is
supported by the oral evidence of P.W.1 Dattatraya Kulkarni. On this
issue no evidence has been adduced in rebuttal. On the contrary Shrikant
Lakhe (D.W.1) who is witnesses for the defendants admitted in cross
examination that the land survey no.53, admeasured 22.23 A.G. He
came to know that the disputed one acre plot was numbered as plot no.1
during nazul survey and this is out of survey no.53. Third witness of the
defendants i.e. D.W. 3 Manohar simply showed ignorance about the
location of the suit plot and whether they are in possession of the same.
Thus having considered the evidence brought on record and particularly
stand taken in the defence which I have reproduced in extenso in
preceding paras of this judgment, the findings recorded by the learned
trial court on issue nos. 1 to 5 and 8 to 11, appear to be very much
consistent with the evidence on record.
12]
Now, I shall advert to the point of limitation and adverse
possession. The suit based upon title is governed by article 65 of the
Limitation Act. Limitation of 12 years commences from the date,
possession of the defendant becomes adverse to the plaintiff. Onus is
entirely on the party who sets up a title on the basis of adverse
possession. Presumptions and probabilities cannot be substituted for
evidence. It must be shown by clear and unequivocal evidence that
possession was hostile to its true owner and amounted to a denial of his
title to the property claimed. Mere long possession for a period of more
than 12 years cannot result in acquisition of title by adverse possession.
What is material is 'animus possidendi'. It seems that the learned trial
court could not distinguish between the 'possession simplicitor' and
'adverse possession' and therefore fallen in error while recording the
finding that the suit is barred by limitation and defendants have
perfected title to it by adverse possession.
13]
Before dwelling into the oral evidence I shall reproduce
the gist of the defendants' pleadings on the issue of adverse possession.
In paragraph 3 it is stated that while placing the defendants in
possession of 21.05 A.G. land out of field survey no.53, other one acre
land which is subject matter of this suit was also given in possession.
Since then they are in possession of the suit plot continuously peacefully
without any interruption and as owner thereof. In paragraph 4 it is
pleaded that the land was lying fallow and idle and it seems that while
giving possession of 21.05 A.G., this one acre of land was also voluntarily
given in possession of the defendants by the plaintiffs on 25.3.1963. This
is situated on EastSouth corner of the suit field and might have been
14]
numbered as plot no.1 sheet no.44 as alleged by the plaintiff.
Now, it is necessary to examine as to whether the
defendants could establish that their possession over the suit land was
hostile to its true owner and since inception they had animus to possess
the same adversely. In his evidence D.W.1 Shrikant stated that for
establishment of the Industrial Training Institute and Government
Polytechnic various lands including the land field survey no.53
admeasuring 21.05 A.G. were acquired and since then they are in
possession of the same. According to him the disputed one acre land is in
possession of the I.T.I. since beginning. Evidence of D.W. 2 Ganpat who
was a Senior Clerk serving in I.T.I. during period from 1982 to 1985
shows that the disputed portion of the suit land is in possession of the
plaintiffs and I.T.I. since the date of acquisition. The third witness D.W. 3
Manohar was Principal of I.T.I. during year 1967 to 1974. According to
him whatever possession of the land was handed over to the institute, is
in their possession and no additional portion is either encroached upon
or is in their possession. It reveals from his cross examination that he
does not know how much area was acquired and possession of how
much area was handed over to them. He showed ignorance whether in
addition to 21.05 A.G. land the defendants are also in possession of the
additional portion of one acre of land. He does not know about the suit
land being numbered as nazul plot no.1 in sheet no.44 of village
Pimpalgaon.
15]
What spells out from the aforesaid evidence is that the
suit land is in possession of the defendants. It does not show that at any
point of time the possession of the defendants over the suit land became
adverse. The tenor of the oral evidence is that whatever the land
acquired and given in possession, is being possessed by them without
there being any element of possessing the said land adversely to its true
owner. The pleading is that the land was lying fallow and idle and it
was voluntarily given in possession of defendants by plaintiffs on
25.3.1963. This appears to be palpably incorrect and inherently
improbable. The original owners of the land who appeared before the
Special Land Acquisition Officer which is evident from the award placed
on record, had claimed compensation @ Rs.10,000/ per acre. It is
unbelievable that they had voluntarily handed over the possession of
additional area of one acre. Moreover, why defendants State shall
indulge in exercise of taking possession of more land than acquired.
In State of Haryana ..vs.. Mukesh Kumar and others
16]
(2011)10 SCC 404, their Lordships held that “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 adverse possession.” Coming down heavily on
the State which sets up a plea of adverse possession their Lordships
observed that “If the protectors of law become the grabbers of the
property, then people will be left with no protection and there would be
a total anarchy in the entire country”. (emphasis supplied)
17]
Law declared by supreme Court practically brings an end
to the controversy involved in this appeal. In that view of the matter,
there is no alternative than to negative the case of the defendants that
the suit is barred by limitation or they acquired the title to the suit plot
by adverse possession. This follows that the suit filed by the plaintiffs for
possession of the suit plot will have to be decreed by setting aside the
judgment and decree passed by the learned trial court.
18]
Before parting with the judgment, it is necessary to
observe that if the defendants consider that the suit plot has become an
integral part of the buildings constructed for housing the I.T.I. and
Government Polytechnic etc or without great inconvenience possession
of the same cannot be parted with, they have remedy to acquire the
same by paying just and fair compensation to the plaintiffs. Since it is a
trust property and remained uncared or was practically abandoned, but
for the notice issued by the Collectorate, there may not any objection for
such acquisition. Be that as it may.
Appeal succeeds.
19]
Judgment and decree passed by the trial court dismissing
the suit is set aside. Suit for possession of the suit plot i.e. plot no.1 nazul
decree
sheet no.44 stands decreed. Map exhibit 53 and 54 shall form part of the
Respondents shall bear their own costs in addition to the
costs incurred by the plaintiffs throughout. Decree be drawn
accordingly.
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