Sukhdeo Parashramji Bhugul (Dr.) vs Wamanrao Nagorao Charhat
2004 Latest Caselaw 464 Bom

JUDGMENT

S.T. Kharche, J.

1. This appeal is directed against the judgment and decree dated 7-10-1991 passed by the Additional District Judge in Regular Civil Appeal No. 575 of 1986, whereby the appeal came to be allowed and the judgment and decree dated 30-10-1986 passed by the trial Court was set aside and instead the appellant/defendant was directed to deliver possession of the suit land, i.e. 7 Ares shown in red colour in the map (Ex.31), which was said to be encroachment, with further direction regarding enquiry into future mesne profits under Order 20, Rule 12(1)(c) of the Code of Civil Procedure.

2. Brief facts are required to be stated as under :

The respondent/plaintiff filed the suit for possession on the basis of the title of the land under encroachment on the contentions that he is the owner of the agricultural land bearing Survey No. 55/1A admeasuring 1 hectare 1 Are situated at village Jawara, whereas the defendant is the owner of agricultural land bearing Survey No. 55/1, admeasuring 1 acre 4 gunthas and his land is situated on the Western side of plaintiff's land. It is contended that the plaintiff got his land measured through cadestal surveyor from the office of the District Inspector of Land Records on 28-3-1985 and it was found that there was encroachment on the land to the extent of 7 Ares and therefore the defendant was served with the notice, dated 13-7-1985 calling upon to him to deliver the possession of the land under encroachment. The defendant had given false reply to the said notice on 26-7-1985 and denied of having committed any encroachment.

3. The defendant strongly resisted the suit claim by filing written statement and contended that he is in possession of the land Survey No. 55/1 since the time of his forefathers for more than 50 years without any interruption and, therefore, he has acquired title to the said land by virtue of adverse possession. He contended that the suit filed by the plaintiff was barred by period of limitation under Article 65(5) of the Limitation Act. On the aforesaid pleadings, the trial Court framed as many as six issues. The witnesses were examined on behalf of the parties including the cadestal surveyor Laxman (P.W.3) from the D.I.L.R. office. The trial Court on consideration of the evidence adduced recorded the finding that the defendant has made encroachment on the land of the plaintiff to the extent of 7 Ares and negatived the contention of the defendant that he has become the owner of the suit land by adverse possession. Consistent with these findings, the trial Court dismissed the suit on 31-10-1986. Being aggrieved by this judgment and decree, the plaintiff carried appeal to the District Court. The learned additional District Judge by his judgment dated 7-10-1991 allowed the appeal, set aside the judgment and decree passed by the trial Court and directed the defendant to deliver possession of the suit land shown in red colour in the map to the plaintiff with further direction to hold enquiry into future mesne profits under Order 20, Rule 12(1)(c) of the Code of Civil Procedure. This judgment of the appellate Court is under challenge in this appeal.

4. Mr. Ingle, learned counsel, for the defendant contended that for claiming adverse possession, it is not necessary for a party to show on what date he came into possession if he can show that the possession was for more than 20 years, i.e. the requirements of adverse possession are satisfied. He contended that this is more so because the plaintiff in para 6 of the plaint clearly mentioned that on 28-3-1985 which is the date on which the cause of action arose and, therefore, there was burden on the plaintiff to show that the alleged encroachment was made by the defendant on that date within 12 years. He further contended that the suit land is an agricultural land. This land is in possession and cultivation of the defendant continuously without any obstruction from the true owner and the plaintiff himself was not knowing what was the area of the land owned by him till the date of measurement which took place on 20-3-1985. He contended that the measurement report of the cadestal surveyor was challenged by the defendant before the District Superintendent of Land Records and he further claimed in the written statement that the suit land has been in actual cultivation and possession without interruption as of right peacefully and, therefore, the title has been perfected to the suit land by virtue of adverse possession and the suit is barred by the period of limitation. He contended that the appellate Court was totally wrong in its approach in reaching the conclusion that the defendant did not establish his title by virtue of adverse possession and that the suit is not barred by the period of limitation and, therefore, the impugned judgment of the appellate Court cannot be sustained in law,

5. Mr. Deshpande, learned counsel for the plaintiff, contended that the cadestal surveyor carried out the measurement of land bearing Survey No. 55 on 28-3-1985 and found that the defendant has made encroachment to the extent of 7 Ares on the land of the plaintiff. He contended that the trial Court as well as the appellate Court have recorded the finding that the defendant has made encroachment on the land of the plaintiff to the extent of 7 Ares and the defendant did not prefer any appeal nor filed the cross-objection regarding the finding on issue No. 1 answered by both the Courts below in affirmative holding that the defendant has made encroachment and, therefore, the said finding has become final and cannot be challenged in this appeal. He contended that the appellate Court has considered the evidence in proper perspective and recorded the finding that the defendant did not become the owner of the said portion of the land under encroachment by virtue of adverse possession. He further contended that adverse possession claimed by the defendant is not adequate in continuity, publicity and in extent and there is also no evidence to show as to when the defendant came into possession of the said land under encroachment and as to how it has become adverse to the knowledge of the true owner. He contended that long possession is not necessarily adverse possession and, therefore, the appellate Court was perfectly justified in rejecting the plea of the defendant that he became the owner by adverse possession. He contended that since there is nothing certain as to when the statutory period of 12 years has been completed in relation to the so-called plea of adverse possession, the suit would not obviously be barred by the period of limitation as per the provisions of Article 65 of the Limitation Act. In support of these submissions, he relied on the decision of Supreme Court in S.M. Karim v. Mst. Bibi Sakina, and also on the Single Bench decision of this Court in Yesu Sadhu Nimagre and Ors. v. Kundalika Babaji Nimagre, 1977 Mh.L.J. 130.

6. This Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the patties. It is not in dispute that the plaintiff is the owner of the agricultural land bearing Survey No. 55/1-A admeasuring 1 hectare 0.1 Are whereas the defendant is the owner of agricultural land bearing Survey No. 55/1 admeasuring 1 acre 24 gunthas and the land of the defendant is situated on the Western side of the plaintiff's land. The measurements were carried out by the cadestal surveyor on 28-3-1985, but according to the defendant he has perfected title to the land of the plaintiff admeasuring 7 Ares shown in red colour in the map (Ex.31) drawn by the cadestal surveyor by virtue of adverse possession.

7. In S.M. Karim's case, , cited supra, ratio has been laid down that adverse possession must be adequate in continuity in publicity and extent and a plea is required at least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea.

8. This Court in Yesu Sadhu Nimagre's case, 1977 Mh.LJ. 130, cited supra, relied on the aforesaid decision in S.M. Karim's case, cited supra, and observed in para 24 that "Now there can be little doubt that before a party can succeed in establishing title on the basis of adverse possession, a plea to that effect must be specifically raised. It is a cardinal principle that a person who claims adverse possession must plead to that effect and must show on what date he came into possession, what was the nature of his possession, whether the fact of his adverse possession was known to the owner and what was the period of such adverse possession. The Supreme Court and this Court have held that whenever there is a claim for adverse possession it must be clearly made and proved. (See S.M. Karim v. Bibi Sakina and S.A. No. 113 of 1964 decided on 13th April 1973 at Nagpur Per Sapre, J.). The principle of law as to what is necessary to constitute adverse possession is well settled and the principle is that such a possession must be "adequate in continuity, in publicity, and in extent, to show that it is possession adverse to the true owner. In other words, there must be a clear assertion of a hostile title."

9. This Court had an occasion to deal with the similar question regarding adverse possession in the case of Parashram v. Vatsalabai, 2003(5) Mh.L.J. 405 = 2004(1) All. MR 755 wherein it has been observed as under :

12. It is well settled law that adverse possession means possession of the land or interest in the land by a wrong man against the Will of the right man. Adverse possession, as its words imply, must be actual possession of another's land with intention to hold it and claim it as of his own, to the exclusion of the rightful owner. It must commence with the wrongful possession of the rightful owner at some particular time and must commence, in wrong against right. It must be actual, open, notorious and hostile under claim of right, continuous and exclusive and maintained for the statutory period. Possession and adverse possession do not mean the same thing. Mere user of the property cannot be taken as a definite assertion of the proprietory rights, there must be definite quality in the possession before it can be called adverse and some act of unequivocal character to put the owner on guard. There cannot be adverse possession if the claimant himself do not know that he was occupying somebody's land. However, permissive possession cannot be converted into adverse possession unless it is proved that the person in possession asserted an adverse title to property, to the knowledge of the true owners for a period of 12 years or more.

13. The concept of adverse possession contemplates a hostile possession, i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possessed by a person who does not acknowledge the other's rights but deny them. Also a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile and real owner and amounted to a denial of his title to the property claim. Permissive possession does not become hostile till there is assertion of adverse possession to the knowledge of the owner. Permissive character of the possession cannot be inferred from the attending circumstances even without direct evidence. If possession is found to be permissive at the inception the possessor cannot prescribe or sustain title or any claim to the grant or of the possession. However, permissive possession cannot be converted into adverse possession unless it is proved that the person in possession asserted an adverse title to the property, to the knowledge of the true owners for a period of 12 years or more. This Court is fortified in its view by the decision of the Supreme Court in State Bank of Travancore v. Arvindan Kunju Panicker, wherein it is held, "a permissive possession cannot be converted into an adverse possession unless it is proved that the person in possession asserted an adverse title to the property to the knowledge of the true owners for a period of 12 years or more."

10. In the present case, it would clearly reveal that the parties themselves were not knowing as to how much area of the land was in their possession till the date of the measurement, i.e. 28-3-1985 and it would also clearly reveal from the evidence that the defendant did not specifically plead as to on what date he came into possession of the land and what was the nature of his possession and whether the fact of his adverse possession was known to the plaintiff and what was the period of such adverse possession. In such circumstances, it is not possible to accept the contention of the learned counsel for the defendant that the possession of the defendant was adequate in continuity, in publicity and in extent to show that it is adverse to the knowledge of the true owner, i.e. the plaintiff. In other words, it would be obvious that there is no clear assertion of hostile title by the defendant in the present case and in such circumstances it is difficult to take a different view than the one taken by the trial Court, by which the contention of the defendant has been negatived that He became the owner by adverse possession. In that view of the matter, it would be clear the Article 65 of the Limitation Act would not have any application to the facts and circumstances of the present case and, therefore, the contention of the defendant that the suit is barred by period of limitation is required to be rejected.

11. The matter does not rest here. The defendant is said to have made encroachment to the extent of 7 Ares on the plaintiffs land and this encroachment is said to have been proved through the evidence of cadestal surveyor Laxman (P.W.3). His evidence would reveal that he had carried out the measurement of whole survey No. 55 on 28-3-1985 and on the basis of the measurements he prepared the map (Ex.31) wherein the encroachment has been shown by red colour. Perusal of the map would reveal that the actual measurements of the land Survey No. 55/1 and 55/1-A owed by the parties have not been recorded in it. The cross-examination of the cadestal surveyor Laxman (P.W.3) would reveal as follows :

"There were no boundary marks before carrying out the measurements by me. I took measurement on the basis of possession and thereafter on the basis of Tipanuttara.

12. The map is drawn by the cadestal surveyor with his signature. The encroachment has been shown by red colour, but without mentioning the actual measurements in the map itself. The vernacular version of the cadestal surveyor would show that he denied the suggestion that the portion of the land under encroachment was approximately. But unequivocally admits that there were no boundary marks before carrying out the measurements. Thus if it is so then it cannot be said that the map is an accurate map.

13. It may be useful to refer Section 83 of the Indian Evidence Act, 1872 which reads, "The Court shall presume that maps or plans purporting to be made by the authority of (the Central Government or any State Government) were so made, and are accurate; but maps or plans made for the purposes of any cause must be proved to be accurate.

14. Bare reading of the aforesaid provision would reveal that the maps or plans made for the purpose of any cause must be proved to be accurate. The onus of proving that such a map is accurate lies on the party who produced it. The maps must be proved by the person who has prepared them. They are post litem motesa and lack necessary trustworthiness. Where the maps are made for the purpose of a suit there is, even apart from fraud which may exist, a tendency to colour, exaggerate and favour which can only be countenanced by swearing the maker to the trust, of his plan. Hence, there is no presumption of accuracy in respect of the map or plan which is made for a particular cause and it goes without saying that a map prepared for the purpose of a particular suit must, therefore, be duly proved and it is not admissible in evidence in absence of proof of its accuracy. In any case, in which there is a dispute about an encroachment or dimension of a site, the first essential is to get an agreed map and if the parties cannot agree on one, a Commissioner must be appointed to prepare the same and/or subsequent reference in the pleadings or judgment to place the mark on a map should be referred to this map which must be attached to the decree and signed by the Judge. In the absence of such a map, the decree is probably meaningless and execution means virtually starting the case over all again. The map should be drawn with the North at the top and letters marking points should not be put in side ways or upside down.

15. This Court may usefully refer the decision of our High Court in Civil Revision Application No. 406 of 1952 decided on 28-1-1953 by Justice B.K. Choudhari (as he then was) in Krishnarao v. Mahadeorao, 1953 N.L.J. Note 230 at page 72, wherein it has been observed as under :

"3. The trial Court rejected the application stating that the question of encroachment by the defendant on a particular date is to be proved by positive evidence by the plaintiff and, therefore, it did not think it desirable to appoint a commissioner. It is against this order that the plaintiff has come up in revision.

4. Order 26, Rule 9, of the Civil Procedure Code is as follows :

"In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court.

5. Under the above rule, the Court has a discretion to order local investigation or not. The object of local investigation is not so much to collect evidence which can be taken in Court but to obtain evidence which from its particular nature can only be had on the spot. Cases of boundary disputes and disputes about the identity of lands are instances when a Court should order a local investigation under this rule. [Po Vi v. Maung Paw and Anr. (12 I.C. 347)].

6. In order to determine whether there has been an encroachment, it is always desirable to get the fields measured by an expert and find out the exact area encroached upon. Oral evidence cannot conclusively prove such an issue. The order of the lower Court refusing to appoint a commissioner amounted to a refusal to exercise jurisdiction. It is set aside. The plaintiffs application under Order 26, Rule 9 of the Code of Civil Procedure for appointment of Commissioner is allowed."

In view of the above, it is clear that under Order 26, Rule 9 of the Code of Civil Procedure, the Court has the discretion to order local investigation or not.

The object of the local investigation is not so much to collect evidence which can be taken in Court but to obtain evidence which from its particular nature can only be had on the spot. The cases of boundary dispute and disputes about the identity of the lands are instances, when a Court, should order local investigation under Order 26, Rule 9 of the Code of Civil Procedure - 72 I.C. 347 Foll. In order to determine whether there has been an encroachment, it is always desirable to get the fields measured by an expert and find out the area encroached upon. Oral evidence cannot conclusively prove such an issue.

16. However, reference may also be had to the decision of the Supreme Court in the case of Ram Kishore Sen and Ors. v. Union of India, , wherein it has been held in para 12 that, "it is true that Section 83 of Evidence Act provides that the Court shall presume that the maps or plans purporting to be made by the authority of the Central Govt. or any State Govt. were so made and are accurate, but the maps or plans made for the purpose of any cause must be proved to be accurate. The presumption of accuracy can thus be drawn only in favour of the maps which satisfy the requirements prescribed by the first part of Section 83. Exh.A-1 obviously does not fall under the category of the said map and so there can be no question of drawing any presumption in favour of the accuracy of the said map. In fact, as we have already indicated, the learned Judge has given very good reasons for showing that the map does not appear to be accurate. Therefore, even if the map is held to be relevant and it is accuracy is not at all established; that is the conclusion of the learned Judge and Mr. Mukherjee has given us no satisfactory reasons for differing from the said conclusion."

17. Reference may also be had to the decision in E. Achuthan Nair v. P. Narayan Nair and Anr., (1984) 4 SCC 71, wherein it was held, "In India, the question whether a suit is cognizable by a Civil Court is to be decided with reference to Section 9 of the Civil Procedure Code. If the suit is of a civil nature, the Court will have jurisdiction to try the suit unless it is either expressly or impliedly barred. A dispute regarding identification of boundary between two adjacent land owners is certainly a dispute of civil nature and it is not barred either expressly or impliedly. The Courts in India will not be justified in importing the technicalities of English Law and the distinction made by the English Courts between legal estates and equitable estates. The report submitted by the Commissioner appointed by the trial Court to locate the boundary in the manner indicated in the agreement between the parties was rightly accepted by the High Court. The decree passed by the High Court in terms of the prayer made by the plaintiff-respondent has to be confirmed." The Court further observed that "disputes as regards the location of boundary separating adjacent lands of different owners may arise under ever so many circumstances. One common instance is where portions of survey fields are transferred or allotted to different persons without mentioning either the side measurements or other necessary measurements to fix the geometrical shape of the plot at the spot. The area and location alone may have been shown in the transfer deed or the partition deed. Without changing the location, the area conveyed or allotted may be sought to be located in one or more alternative geometrical shape by one owner. Again, any one party may wish to have the limits of the area belonging to him demarcated so that he may either enclose the area to prevent trespass or to exercise acts of possession without encroaching into the neighbouring plot. If the other party on demand does not co-operate, a cause of action arises to have the limits of his property determined through Court. Again the property conveyed or allotted may have been described only with reference to neighbouring properties. Those properties may or may not have been limited in extent and shape to survey field. In that case, a fixation of the boundary of those properties may be necessary to fix the boundaries of the properties conveyed or allotted. If there is no co-operation in doing that, that may result in a dispute. These instances are only illustrative and not exhaustive. All these disputes are disputes of a civil nature and they can form the subject matter of a suit under Section 9, Civil Procedure Code. There is no express or implied bar under any other law. According to me, whenever there is a dispute between two parties as regards the location of a boundary separating their neighbouring properties and if on demand to co-operate in fixing the boundary it is not given, a suit will lie at the instance of the demanding party. So I agree with my learned brother that the decision in Rayappan v. Yagappan, 1958 Ker. LT 955 is not correct and has to be overruled."

18. In view of this legal position, it is apparent that the map prepared by the cadestal surveyor (Ex.31) would not be admissible in evidence to show that there was an accuracy in taking the measurement of the entire field Survey No. 55 especially when no actual measurements have been noted down anywhere in the map nor the cadestal suveyor has sweared that he had noted down the measurements of the land in his report. Therefore, though the defendant did not file any appeal or cross-objection against the finding of the trial Court that he has made encroachment to the extent of 7 Ares, it is not possible to accept the contention of the plaintiff that it has been duly proved that the map is an accurate map and consequently this Court is of the considered opinion that the said map is not admissible in evidence as an accurate map especially when admittedly the measurements were carried out by the cadestal surveyor for the purpose of the cause and not through the appointment of the Commissioner by the Court.

19. In such circumstances, appointment of cadestal surveyor for taking the joint measurements of the land owned by the parties for the purpose of local investigation under Order 26, Rule 9 of Civil Procedure Code becomes relevant and necessary. Thus, this Court is of the considered opinion that this matter deserves to be remitted to the trial Court with direction to appoint the cadestal surveyor as Commissioner at the cost of the plaintiff for taking the joint measurements of the agricultural lands owned by the plaintiff as well as by the defendant. The cadestal surveyor shall carry out the joint measurements and prepare the map by mentioning therein the actual measurements and by demarcating the boundaries of the land and shall also show the precise and concise, area under encroachment, if any, in the map and then he shall prepare the report and shall file the map and the report in the trial Court. The trial Court shall afford an opportunity to the parties to lead evidence on the Commissioner's report, which may be made admissible in evidence under Order 26, Rule 10 of Civil Procedure Code and thereafter the trial Court shall decide the suit afresh in accordance with law. Since the matter is quite old, this Court expects the trial Court to decide the suit expeditiously, preferably within six months, from the date of appearance of the parties before it. The plaintiff shall make an application before the trial Court for appointment of the cadestal surveyor from the office of the D.I.L.R./T.I.L.R. within a period of three months from today, in default the suit shall stand dismissed. The parties are directed to appear before the trial Court on 30-4-2004. Record and proceedings be sent back to the trial Court immediately, without any delay. Costs shall be the costs in the cause. C.C. expedited.