The Hon'ble Supreme Court in the case of Karnataka Board of Wakf Vs. Government of India and others, (2004) 10 SCC 779, in para-11 has observed 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 precerio", 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. (seeS.M. Karim V. Bibi Sakina, AIR 1964 SCC 1254 : Parisinni V. Sukhi, (1993) 4 SCC 375 : (1993 AIR SCW 3606) and D.N. Venkatarayappa V. State of Karnataka (1997) 7 SCC 567) : (AIR 1997 SC 2930) Physical fact of exclusive possession and 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 adverse possession. (Mahesh Chand Sharma (Dr) V. Raj Kumari Sharma(1996) 8 SCC 128) : (AIR 1996 SC 869)."
Madhya Pradesh High Court
Gaurishankar vs Bandu Judgement Given By: Hon'Ble ... on 5 February, 2014
Citation; AIR 2014 (NOC) 481 MP
This second appeal, at the instance of plaintiff under Section 100 of CPC, is against the concurring judgment and decree dated 19/3/20012 passed in Civil Appeal No.12-A/2011 affirming the judgment and decree dated 25/11/2010 passed in Civil Suit No.40-A/2008, is filed questioning the finding of facts of Courts below whereby the claim of the plaintiffs as regards to acquisition of title by adverse possession has been negated and suit has been dismissed.
2. Before adverting to factual matrix, it is apposite to state law in this regard as consistently held by the Hon'ble Supreme Court and followed by the various High Courts including the jurisdictional High Court.
3. The facts required to plead and prove adverse possession when the party to a lis set up a plea of acquisition of title 2
adverse possession has to be specific as regards to period and date from which he claims possession and then have to prove that the possession was adequate in continuity, in publicity and in extent to show that his possession was actually visible, exclusive, hostile and continues over the statutory period as contemplated under Section 65 of the Limitation Act to the knowledge of the real owner. Mere physical act of exclusive possession by, itself, cannot justify the claim of adverse possession.
4. A person pleading adverse possession has no equity in his favour if some one asserts acquisition of title by adverse possession. It, in fact, amounts to trying to defeat the right of true owner and, therefore, burden is very heavy upon such person to prove title by adverse possession and for that he has to plead and establish all the facts necessary as aforesaid to establish his claim.
5. The Hon'ble Supreme Court in the case of Karnataka Board of Wakf Vs. Government of India and others, (2004) 10 SCC 779, in para-11 has observed as under : 3
"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 precerio", 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. (seeS.M. Karim V. Bibi Sakina, AIR 1964 SCC 1254 : Parisinni V. Sukhi, (1993) 4 SCC 375 : (1993 AIR SCW 3606) and D.N. Venkatarayappa V. State of Karnataka (1997) 7 SCC 567) : (AIR 1997 SC 2930) Physical fact of exclusive possession and 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 4
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 adverse possession. (Mahesh Chand Sharma (Dr) V. Raj Kumari Sharma(1996) 8 SCC 128) : (AIR 1996 SC 869)."
6. In the instant case, it is undisputed that the agriculture land of plaintiffs and that of defendants are adjacent to each other, description whereof is given in para-2 of the judgment of first appellate Court. The suit land is falling in Khasra No.651/1 and 652/1 admeasuring 0.97 hectare (hereinafter referred to as 'the suit land'). The plaintiffs/ appellants asserted that late Smt. Pyari Bahu, mother of plaintiff No.1 has been in possession of the suit land and cultivating the same. As in the settlement proceedings plaintiffs' land ad-measuring 0.27 hectare was shown in the 5
map of the defendants' land, therefore, for correction application was filed before the Naib Tahsildar and the revenue case was registered as Case No.4A/6-A/2006-07. The revenue Court found that over the suit land plaintiffs are in possession for last 50 years belonging to defendants 1 and 2 and the defendants are in possession of the Government land treating the same to be part of their land. Defendants 1 and 2, under such circumstances, have no right to interfere in the possession of the plaintiffs over the suit land. The plaintiffs also submitted that subsequent sale deed executed by defendants 1 and 2 in favour of defendant No.3 was null and void.
7. The suit was contested by the defendants and the plaint allegations were denied. The defendants denied that the plaintiffs are in possession of the suit land from 60-70 years. As a matter of fact, plaintiffs have at no point of time been in possession of the suit land. There is no question of interference with their possession as defendants continue in possession of the suit land. The defendants further submitted that they held title and the possession of the land owned by them including the suit land, have all 6
right to transfer the title to defendant No.3 by executing sale deed and, therefore, denied the relief claimed for declaring the sale deed null and void.
8. The trial Court framed issues and allowed the parties to lead evidence. After critical evaluation of evidence on record, the trial Court dismissed the suit holding that the plaintiffs failed to prove that they are in possession of the suit for over 60-70 years.
9. On appeal, first appellate Court again in paragraphs 12 to 19 has critically evaluated the entire evidence brought on record and affirmed the finding of the trial Court. The first appellate Court drew the conclusion that by their own evidence, plaintiffs have not been able to prove the claim of adverse possession. As the land of plaintiffs and defendants being adjacent to each-other and there was no dividing line, the assertion of the plaintiffs that they continue to be in possession of the suit land by, itself, cannot be construed to have conferred upon them title by adverse possession. The defendants have never acquiesced the alleged claim of the defendants. The
findings of facts in this behalf are well explicit as evident from the judgments of the Courts below.
10. The Courts below have already recorded a finding that the plaintiffs have not been able to prove as to from which date they came in possession, what was the nature of their possession, whether the factum of possession was known to other party and for how long his possession over the suit land was continued, open and undisturbed to the knowledge of the defendants. Hence, mere alleged assertion, shall not amount to adverse possession conferring title on the plaintiffs over the suit land.
11. Considering the aforesaid facts and circumstances, this Court is of the view that the concurring findings of facts recorded by the Courts below are absolutely justified and no question of law much less substantial question of law arises for consideration in this second appeal warranting interference in exercise of powers under Section 100 of CPC.
12. The second appeal sans merit and is, accordingly, dismissed.
8
(Rohit Arya)
Judge
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