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. Though we got this law of
adverse possession from the British, it is important
to note that these days English Courts are taking a
very negative view towards the law of adverse
possession.
We inherited this law of adverse possession
from the British. The Parliament may consider
abolishing the law of adverse possession or at least
amending and making substantial changes in law
in the larger public interest. The Government
instrumentalities including
the police in
the
instant case have attempted to possess land
adversely. This, in our opinion, a testament to the
absurdity of the law and a black mark upon the
justice system's legitimacy. The Government should
protest the property of a citizen not
steal it. And
yet, as the law currently stands, they may do just
that. If this law is to be retained, according to the
wisdom of the Parliament, then at least the law
must require those who adversely possess land to
compensate title owners according to the prevalent
market rate of the land or property in question.
This alternative would provide some semblance of
justice to those who have done nothing other than
sitting on their rights for the statutory period,
while allowing the adverse possessor to remain on
property. While it may be indefensible to require
all adverse possessors some
of whom may be poor
to
pay market rates for the land they possess,
perhaps some lesser amount would be realistic in
most of the cases. The Parliament may either fix a
set range of rates or to leave it to the judiciary with
the option of choosing from within a set range of
rates so as to tailor the compensation to the
equities of a given case ".
A similar situation is found in the instant case and adopting
the law laid down by the Apex Court, I also find that it is high time that
the law makers need to consider at least to abolish ' bad faith ' adverse
possession.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 670 OF 2003
Vinodkumar Balaprasadji Shukla
V E R S U S
The State of Maharashtra
CORAM
: A.B.CHAUDHARI, J.
JUDGMENT PRONOUNCED ON : 30/07/2013
Citation;2015(7)ALLMR165
1. The appellants are the original plaintiffs, who are challenging
the Judgment and Decree passed by the Joint District Judge, Nanded on
09/06/2003 in R.C.A. No. 68 of 2001, by which the lower appellate Court
allowed the Appeal preferred by the State of Maharashtra and the
Principal, Industrial Training Institute, Nanded and dismissed the Suit for
possession of the suit property that was filed by the present
appellants/plaintiffs.
FACTS :
2. Balaprasadji Shukla, the father of the appellants/plaintiffs
was the owner of Survey No. 74/2 situated at Vazirabad, Taluka and
Nanded, a posh locality in the city of Nanded. Balaprasadji Shukla
remained in possession of the said land till his death, but in October,
1978, the respondents encroached upon the suit land, which is adjoining
open piece of land to the Industrial Training Institute, Nanded by erecting
a wire fencing and thus took the area of the suit property inside the
already acquired area by the State. Balaprasadji Shukla, during his life
time, protested and wrote a letter dated 05/10/1978 to the respondents to
remove the encroachment followed by legal notice U/s 80 of the Code of
Civil Procedure [ For short, ' C.P.C. ' ] dated 04/04/1983, followed by
another notice dated 24/04/1983 and followed by third notice U/s 80 of
C.P.C dated 07/01/1986. Despite it, the defendants did not remove the
encroachment, but continued to remain in occupation of the suit plot
admeasuring 567.8 Sq. Meters owned and possessed by Balaprasadji
Shukla. The plaintiffs then instituted a Suit namely Spl.Civil Suit No. 55
of 1986 for recovery of possession of 567.8 Sq. Meters out of Survey No.
74/2.
The defendants the
State of Maharashtra and the Principal,
Industrial Training Institute, Nanded filed Written Statement and denied
their encroachment stating that the wire fencing was erected by the Public
Works Department in the year 1979 after taking measurement and they
had not encroached. There was no question of making encroachment,
though it was a fact that Balaprasadji Shukla was the owner. The
acquisition of 18 Acres 10 gunthas land out of 19 Acres 15 gunthas owned
by Balaprasadji Shukla was made. The remaining portion was also
acquired by Award No. 144 dated 13/01/1356 Fasli and again there was
acquisition of Survey No. 74/2 for construction of Mahatma Phule
vegetable market vide Award dated 22/03/1982. The defendants have
been in possession, open and peaceful, since 1957 and at any rate the
defendant State
acquired title to the suit land by adverse possession.
This was the defence in nut shell.
3. The trial Court framed as many as seven (7) issues and
framed issue No. 3 relating to the adverse possession and answered the
same against the defendants. The Suit was thus decreed in favour of the
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appellants/plaintiffs.
The defendants/respondents herein filed First Appeal before
the District Judge, Nanded. The Joint District Judge, Nanded held that
since the wire fencing was put by the defendants and they were in
possession for more than twelve (12) years openly and uninterruptedly,
they had projected their notorious possession and, therefore, they
acquired title by adverse possession. The lower appellate Court also threw
the entire burden on the appellants/plaintiffs to prove that the
respondents were not in adverse possession. Finally, the lower appellate
Court allowed the First Appeal and dismissed the Suit that was decreed by
the trial Court. Hence, this Second Appeal.
4. In support of the Appeal, the learned counsel for the
appellants made the following submission.
SUBMISSIONS :
5. [i] That, the lower appellate Court committed an error in
dismissing the Suit and holding that the State acquired title by adverse
possession, when even remotely there were no appropriate pleadings or
evidence for raising the plea of adverse possession.
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[ii] The defendants did not produce any evidence to show that
the suit property was also the part of the acquired property, when the
defendants themselves claim that out of 19 Acres of land, only 18 Acres
was acquired and that the balance land was further acquired by virtue of
the Award No. 144 dated 13/01/1356 Fasli, but they did not produce
either any documentary evidence to that effect before the Court. The
defendants did not file any evidence about the acquisition of property,
atleast
the suit property and, therefore, there is perversity on the part of
the lower appellate Court in holding that the defendants are in adverse
possession in violation of the Judgment of the Apex Court in the case of
Santosh Hajari V/s Purushottam Tiwari (deceased) by L.Rs. reported in
(2001) 3 Supreme Court Cases 179,
because the trial Court gave
reasons based on oral and documentary evidence.
[iii] The lower appellate Court has thrown the burden of proof on
the appellants/plaintiffs to prove that the defendants were not in adverse
possession, which is wholly wrong and illegal. The lower appellate Court
has casually written a finding of acquisition of title by adverse possession
by the State.
6. Per contra, the learned A.G.P. for the respondent State
vehemently opposed the Appeal and submitted that no documentary
evidence about the suit property was produced on record. There is ample
evidence on record that the State of Maharashtra and the Principal,
Industrial Training Institute, Nanded are in possession of the suit property
for more than twelve (12) years openly and peacefully. The learned
A.G.P., therefore, prayed for dismissal of the Second Appeal supporting by
the impugned Judgment made by the lower appellate Court.
7. Mr. M.V.Deshpande, the learned counsel appeared for
Nanded Waghala Municipal Corporation and submitted that the suit land
is required for expansion of road. The learned counsel stated that this
Court has allowed the Municipal Corporation, Nanded to be joined as
party to this Appeal by Order dated 14/06/2010 and he supports the
impugned Judgment of the lower appellate Court.
CONSIDERATION :
8. I have heard the learned counsel for the rival parties at
length. I have read the impugned Judgments made by both the Courts.
Before dealing with the merits of the matter, the following observations of
the Apex Court are apt in the instant case. The Apex Court in the case of
State of Haryana V/s Mukesh Kumar & Ors. reported in AIR 2012
Supreme Court 559,
stated thus in the following paragraphs :
" People are often astonished to learn that a
trespasser may take the title of a building or land
from the true owner in certain conditions and such
theft is even authorized by law.
The theory of adverse possession is also
perceived by the general public as a dishonest way
to obtain title to property. Property right
advocates argue that mistakes by landowners or
negligence on their part should never transfer their
property rights to a wrongdoer, who never paid
valuable consideration for such an interest.
The Government itself may acquire land by
adverse possession. Fairness dictates and
commands that if the Government can acquire title
to private land through adverse possession, it
should be able to lose title under the same
circumstances.
The concept of adverse possession was born
in England around 1275 and was initially created
to allow a person to claim right of "seisin" from his
ancestry. Many felt that the original law that
relied on "seisin" was difficult to establish, and
around 1623 a statue of limitations was put into
place that allowed for a person in possession of
property for twenty years or more to acquire title to
that property. This early English doctrine was
designed to present legal disputes over property
rights that were time consuming and costly. The
doctrine was also created to prevent the waste of
land by forcing owners to monitor their property or
suffer the consequence of losing title.
The concept of adverse possession was
subsequently adopted in the United States. The
doctrine was especially important in early
American periods to cure the growing number of
title disputes. The American version mirrored the
English law, which is illustrated by most States
adopting a twentyyear
statute of limitations for
adverse possession claims. As America has
developed to the present date, property rights have
become increasingly more important and land has
become limited. As a result, the time period to
acquire land by adverse possession has been
reduced in some States to as little as five years,
while in others, it has remained as long as forty
years. The United States has also changed the
traditional doctrine by preventing the use of
adverse possession against property held by a
governmental entity.
During the colonial period, prior to the
enactment of the Bill of Rights, property was
frequently taken by States from private land
owners without compensation. Initially,
undeveloped tracts of land were the most common
type of property acquired by the Government, as
they were sought for the installation of public road.
Under the colonial system it was though that
benefits from the road would, in a newly opened
country, always exceed the value of unimproved
land.
The doctrine of adverse possession arose in
an era where lands were vast particularly in the
United States of America and documentation sparse
in order to give quietus to the title to the possessor
and prevent fanciful claims from erupting. The
concept of adverse possession exist to cure potential
or actual defects in real estate titles by putting a
statute of limitation on possible litigation over
ownership and possession. A landowner could be
secure in title to his land; otherwise, longlost
heirs
of any former owner, possessor or lien holder of
centuries past could come forward with a legal
claim on the property. Since independence of our
country, we have witnessed registered documents of
title and more proper, if not perfect, entries of title
in the Government records. The situation having
changed, the statute calls for a change.
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. Though we got this law of
adverse possession from the British, it is important
to note that these days English Courts are taking a
very negative view towards the law of adverse
possession.
We inherited this law of adverse possession
from the British. The Parliament may consider
abolishing the law of adverse possession or at least
amending and making substantial changes in law
in the larger public interest. The Government
instrumentalities including
the police in
the
instant case have attempted to possess land
adversely. This, in our opinion, a testament to the
absurdity of the law and a black mark upon the
justice system's legitimacy. The Government should
protest the property of a citizen not
steal it. And
yet, as the law currently stands, they may do just
that. If this law is to be retained, according to the
wisdom of the Parliament, then at least the law
must require those who adversely possess land to
compensate title owners according to the prevalent
market rate of the land or property in question.
This alternative would provide some semblance of
justice to those who have done nothing other than
sitting on their rights for the statutory period,
while allowing the adverse possessor to remain on
property. While it may be indefensible to require
all adverse possessors some
of whom may be poor
to
pay market rates for the land they possess,
perhaps some lesser amount would be realistic in
most of the cases. The Parliament may either fix a
set range of rates or to leave it to the judiciary with
the option of choosing from within a set range of
rates so as to tailor the compensation to the
equities of a given case ".
9. A similar situation is found in the instant case and adopting
the law laid down by the Apex Court, I also find that it is high time that
the law makers need to consider at least to abolish ' bad faith ' adverse
possession. Be that as it may, I frame the following substantial questions
of law in the instant Appeal.
Substantial Questions of law Answers
[i] Whether the lower appellate Court
committed an error by writing the
Judgment in violation of the
Judgment of the Supreme Court in
the case of Santosh Hajari V/s
Purushottam Tiwari (deceased) by
L.Rs. reported in (2001) 3 Supreme
Court Cases 179
? In affirmative.
[ii] Whether the lower appellate Court
committed serious error of law in
casually applying the law of adverse
possession in the instant case in
absence of any pleadings, evidence
oral as well as documentary and in
absence of even a semblance of
evidence and applicability of the
rule of adverse possession ? In affirmative.
[iii] Whether the lower appellate Court
committed an error in ignoring the
material evidence that was discussed
by the trial Court showing that the
appellants/plaintiffs had established
their title as well as possession
over the suit property and had been
from the day one protesting the
putting of the fence by the State
Government and the Industrial
Training Institute, Nanded ? In affirmative.
[iv] What order ? Second Appeal is allowed
with costs.
10. At the out set, this Court finds that the original defendants
did not at all dispute the ownership of the father of the plaintiffs and after
the death of plaintiffs' father, the plaintiffs. Then there is no dispute that
the defendants had put a wire fencing over the subject matter of the suit
property somewhere in the year 1978, which defendants claim to have
been erected in 195758,
for which there is no direct or indirect evidence.
But, then it is an admitted fact that the wire fencing was erected on the
open space belonging to the plaintiffs abutting the acquired land for the
Industrial Training Institute i.e. defendant No. 2 in 1978 and the Suit was
filed in the year 1986 viz. Spl. Civil Suit No. 55 of 1986.
11. It is clear from the evidence that out of 19 Acres and 15
gunthas of the land belonging to the original owner Balaprasadji Shukla,
18 Acres 10 gunthas was acquired by the Government and the remaining
1 Acre 5 gunthas land was not acquired and remained with the landlord.
But, then a vague statement without producing any government record
was made that under Award statement No. 144 dated 31/03/1356 Fasli,
the said land was acquired, but for what, was not stated and another
vague statement was made that some piece of land was acquired for
Mahatma Phule vegetable market. It is thus clear from the record that the
defendants have not brought the evidence on record in respect of suit
property admeasuring 567.8 Sq. Meters, whether the same was acquired
or not. On the contrary, there is finding of fact recorded by both the
Courts below that the appellants have been in possession of the suit
property throughout.
The lower appellate Court has, however, recorded
the finding that the defendant/State Government acquired the title by
adverse possession. It is in this background,
the whole matter will have
to be looked into. The lower appellate Court has not at all adverted to the
voluminous evidence, oral as well as documentary, discussed by the trial
Court, but it suddenly jumped to the conclusion that the State
Government acquired title by adverse possession. It is well settled legal
position that for claiming adverse possession, the burden is on the party
who claims it. In the instant case, except one line that the State
Government and the Industrial Training Institute, Nanded are in adverse
possession, being in possession continuously for more than twelve (12)
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years, no other pleadings were set out nor any foundation in the form of
evidence was laid. On the contrary, the evidence led by the plaintiffs was
almost unchallenged about the protest when the wire fencing was put,
firstly by the original owner Balaprasadji and thereafter by the plaintiffs
and further issuance of three (3) notices to the State Government and the
Industrial Training Institute, Nanded protesting the act of making
encroachment. Not only this, the plaintiffs immediately filed Suit in the
year 1986, within twelve (12) years.
12. It is surprising to note that the lower appellate Court has even
gone to the extent of throwing the burden about the acquisition of the suit
land upon the appellants/plaintiffs. I quote para No. 34 from the
Judgment of the lower appellate Court, which reasoning, in my opinion, is
wholly illegal.
" In a suit for adverse possession, it is necessary for
the party claiming it to establish that they were in
possession for more than 12 years openly,
uninterrupted. As observed above, they had put the
fencing meaning thereby that they had projected their
notorious possession. It is true that they had no
knowledge about this ownership but they used it as
owner thereof by putting wire fencing. I have further
observed that there is no evidence from the
respondents that this land was never acquired ".
13. The defendants examined two (2) former Principals in
support of their case, but then trial Court has rightly found that they had
no personal knowledge and, therefore, their evidence was worthless. The
trial Court also found that the defendants did not got the land measured
nor led any evidence to show that the suit property was out of the
acquired land. The trial Court discussed the evidence on record tendered
by the plaintiffs and that is voluminous evidence. It would not be out of
place to quote the portion of the trial Court's Judgment in relation to the
said evidence. I quote the following paragraphs from the Judgment of the
trial Court :
" In support of their case, the plaintiffs relied
upon documentary evidence consisting of 7/12
extract of the suit land (Exh.40), a copy of a Sanad
issued by the D.I.L.R. (Exh. 172), copy of P.R. Card
No. 6470 (Exh. ), maps of the suit land (Exh. 102
and 103), a map of C.T.S. No. 6469 (Exh. 104),
copies of city survey enquiry register (Exh.101 and
Exh. 165), office copy of the notice dated
05/10/1978 (Exh. 86), acknowledgment receipt
(Exh. 87), office copy of the notices under section 80
of C.P.C. dated 4/4/88 and 7/1/1986 (Exhs. 88 and
95), letter of D.I.L.R. dated 14/12/1990 (Exh. 106)
and the reply of the defendant No. 2 dated
05/03/1986 (Exh. 99). The plaintiffs also examined
the plaintiff No. 1 as P.W. 1 and one Pundlik
Narayanrao Pandit as P.W. 2 in support of their case.
The defendants denied that the suit land is a part and
parcel of survey No. 74/2 and that they committed
encroachment on the same in 1978. The defendants
placed reliance on copies of Khasra Patrak (Exh.42
and 43), 7/12 extracts (Exh. 44 and 45), a copy of
site plan of Industrial Training Institute (Exh. 146),
a letter of D.I.L.R. dated 17/09/1987 (Exh. 166),
part plan of existing land used (Exh. 161), a map of
different portions of survey No. 74 (Exh. 162), office
copy of a letter to Executive Engineer dated
23/07/1969 (Exh. 142) and the D.O. letter of
Executive Engineer dated 21/1/1969 (Exh. 144).
The defendants also examined two formal Principal
of the Industrial Training Institute as D.W. 1
and
D.W. 2.
After carefully considering the material on
record, I am inclined to accept the case of the
plaintiffs.
The plaintiff No. 1 (P.W. 1) deposed at Exh.
85 that survey No. 74 which belonged to their father
admeasured 19 Acres 15 gunthas, out of that 18
Acres 10 gunthas was acquisitioned for labour
colony. Survey No. 74/2 was allotted to the
remaining part of that land. He then deposed that
no portion of survey No. 74/2 was acquisitioned for
the college road (workshop road), a portion of survey
No. 74/2 that is the suit land is to the east of the
Industrial Training Institute. He then deposed that
the Industrial Training Institute premises consists of
survey No. 73 and a part of survey No. 74/1. A
portion of survey No. 74/2 was acquisitioned for
Mahatma Phule market. Then, he stated that the
plaintiffs have constructed a shopping complex in a
portion of survey No. 74/2. He deposed that the suit
land belongs to the plaintiffs. According to him, no
portion of survey No. 74/2 was acquired for the
purpose of Industrial Training Institute. His oral
evidence is corroborated by survey maps and other
documents. No significant admission appears in his
cross examination.
The Khasra Patrak at Exh. 42 is regarding a
portion of survey No. 74 which was acquisitioned by
the State for the settlement of the labour colony. The
area under the labour colony is shown as 18 Acres 10
gunthas. It also appears that the area acquired by
the State was allotted survey No. 74/2. Then, the
Khasra Patrak which is at Exh. 43 indicates that it
pertains to the remaining portion of survey No. 74
after the acquisition. The remaining portion was
allotted survey No. 74/B. That portion admeasure 1
Acre 5 gunthas. The extract indicates that
Balaprasad was in actual possession of that land in
1953. Then, at Exh. 44 is the 7/12 extract of survey
No. 74/A for the years 196061
to 197576.
The
municipality has been shown in possession of that
land for those years. Then, at Exh. 45 is the 7/12
extract of survey No. 74/B of which allegedly the suit
land is a portion. The extract indicates that
Balaprasad was in possession of that land from
196061
to 197576.
In the extract, the land is
shown as fallow one. Therefore, it follows that the
owner was in possession of the land which was
vacant. Therefore, it can be said as is claimed by the
learned counsel for the plaintiffs that Balaprasad was
in possession of survey No. 74/2 from 196061
till
197576
".
14. The above evidence, to my mind, was clearly indicative of the
ownership, title and possession of the plaintiffs and the encroachment
made by the Industrial Training Institute, Nanded. It is, however,
astonishing to note that the lower appellate Court has not even considered
the said evidence while setting aside the detailed Judgment made by the
learned trial Court, but has expected negative evidence from the plaintiffs
that the suit land was never acquired. It is thus clear to me that the
Judgment made by the lower appellate Court is wholly wrong and illegal
and can not be sustained. The Judgment of the trial Court decreeing the
Suit will have to be restored.
In view of the fact that the State Government and the
Industrial Training Institute, Nanded had already acquired the valuable
land of the plaintiffs and their father and even the remaining land left for
the plaintiffs was unjustifiably encroached and then from 1986, for no
reasons without any proof of acquisition, the plaintiffs have been deprived
of the land by the State Government for no justifiable reasons and in view
of the fact that the State Government casually claimed the title to the suit
property by adverse possession causing severe harassment to the plaintiffs,
I intend to hold that the plaintiffs are inclined to the compensatory
cost of ` 5,000/[
Rupees Five Thousand only ] from the State
Government and the Industrial Training Institute, Nanded.
15. In the result, I make the following Order.
ORDER
1) Second Appeal No. 670 of 2003 is allowed.
2) The impugned Judgment and decree dated
09/06/2003 passed by the Joint District
Judge, Nanded in R.C.A. No. 201 of 1998 is
set aside.
3) The Judgment and decree dated 17/04/1993
passed by the 3rd Jt. Civil Judge (Sr.Division),
Nanded in Spl. Civil Suit No. 55 of 1986 is
restored.
4) The respondents State
Government and
Industrial Training Institute, Nanded shall
pay compensatory cost of ` 5,000/[
Rupees
Five Thousand only ] to the appellants/
plaintiffs within the period of eight (8) weeks
from today.
[ A.B.CHAUDHARI, J. ]
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