Bombay High Court

Motiram Bajirao Patil vs The State Of Mah.Thro.G.P on 5 May, 2025

2025:BHC-AUG:13651


                                                    1                         sa 320.95.odt


                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     BENCH AT AURANGABAD

                                SECOND APPEAL NO. 320 OF 1995

                           Motiram Bajirao Patil,
                           age 59 years, Occ. Agriulture,
                           R/o Asankheda, Tq. Pachora,
                           District Jalgaon.
                           Died through L.Rs.
                           Dattatraya Motiram Patil,
                           age 37 years, Occ. Service,
                           R/o Asankheda (Bk), Tq Pachora,
                           District Jalgaon.                            Appellant.
                                                                     Orig. plaintiff.
                           VERSUS

                     1.    The State of Maharashtra,
                           Through Government Pleader,
                           High Court, Aurangabad.

                     2.   Group Grampanchayat Asankheda,
                          Khurd and Budruk, Tq. Pachora,
                          District Jalgaon.                       Respondents.
                                                              Orig. defendants.
                                                ...
                     Advocate for Appellant : Mr. S B. Deshpande Senior
                     Counsel a/w Mr. P. A. Deshpande I/b Mr. S.P. Tiwari
                     AGP for Respondent no.1 : Mr. V S Badakh
                     Advocate for Respondent no.2 : Mr. S. V. Dixit

                                      CORAM             : S. G. CHAPALGAONKAR, J.
                                      Reserved on       : April 25, 2025
                                      Pronounced on     : May 05, 2025.

                     JUDGMENT :

1. The appellant/original plaintiff impugns the

judgment and decree dated 31.7.1995 passed by the learned 2 sa 320.95.odt

District Judge, Jalgaon, in Regular Civil Appeal no.289 of 1989

thereby upholding the judgment and decree dated 30.9.1989

passed by the learned Civil Judge S.D., Jalgaon, in

R.C.S.No.619 of 1985 thereby dismissing suit of the plaintiff

seeking the relief of declaration of ownership and perpetual

injunction claimed against defendant no.1/State of

Maharashtra. (Parties hereinafter are referred to as per their

original status).

2. Appellant/plaintiff instituted suit claiming the

relief of declaration of ownership and perpetual injunction in

respect of the suit plot which is part and parcel of gat no.147

of village Asankhede, more particularly, described in the plaint.

According to plaintiff, suit plot was possessed by his forefathers

since 150 to 200 years. Plaintiff continued in possession and

enjoyment of the suit property as owner. Plaintiff has installed

a flour-mill and constructed cattle-shed as well as water pond.

Defendant no.2 village Panchayat mutated name of plaintiff's

father in Panchatyat record under Resolution No.46 dated

22.12.1964. Since then, defendant no.2 is receiving tax.

Plaintiff asserts that he has no documentary evidence to show

his ownership, but his long standing and continuous possession 3 sa 320.95.odt

would rest title upon him by prescription. Hence, in the

alternate, he claims ownership by way of adverse possession.

According to plaintiff, on false complaint made by a villager,

S.D.O. Chalisgaon made an inquiry. Eventually, Tahsildar,

Pachora ordered plaintiff to vacate the suit plot. Hence,

plaintiff required to approach Court seeking relief, as claimed.

3. Defendant no.1 refuted plaintiff's claim, either as

to his own title or acquisition of same by adverse possession. It

is pleaded that suit plot is meant for public use. Plaintiff

encroached on area of suit plot causing nuisance to public. The

Government requires land for implementation of various

schemes. Resolution of the village Panchayat is inconsistent to

Section 53 and 56 of the village Panchayat Act.

The Trial Court framed issues based on pleadings

of the parties and finally dismissed the suit. In appeal filed by

the plaintiff before the District Judge, Jalgaon, the decree as

passed by the Trial Court is confirmed.

4. Aggrieved plaintiff filed present Second Appeal,

which has been admitted by this Court vide order dated

4.3.1997 on ground nos.3,5,6,7,9,11 and 17, being substantial

questions of law, which reads thus :-

4 sa 320.95.odt

i. The courts below have failed to exercise jurisdiction vested in them, in not considering the fact that long possession under section 110 of the Evidence Act is proof of title.

ii. Whether the findings of the Courts below that the appellant has not pleaded the adverse possession properly in the plaint is legally correct.

iii. The Courts below have failed to consider that the appellant himself claims ownership over the suit property for more than 200 years continuously and without interruption to the knowledge.

iv. The Courts below have wrongfully held that the appellant is not entitled to raise alternative plea of adverse possession, when he himself claims owner of the suit property.

v.     Whether the entry of ownership by                   the
       Grampanchayat recording the name of                 the

plaintiff's father is not proof of ownership.

vi. Whether the inference drawn by the Courts below from the statement Exh.55, that the appellant was of the opinion, that, by adverse possession is correct, when the appellant in his statement on oath clearly deposed the circumstances under which he submitted application for allotment of the plot to him.

Vii. Whether the long possession, more than 30 years over the suit property, where several activities are being carried out by the appellant in the presence of village officers and Grampanchayat under his title and when the flour mill also being run by 5 sa 320.95.odt

him, does not establish the knowledge to the Government of his hostile possession."

5. Mr. Sanjeev Deshpande, learned senior advocate

vehemently submits that there is voluminous evidence

depicting long standing possession of plaintiff over suit plot. In

the year 1965, village Panchayat passed a Resolution and

accepted possession of plaintiff's father and resolved to enter

his name in village Panchayat record as the owner of suit plot.

Since then, tax has been paid to the village Panchayat. He

would further submit that plaintiff has raised construction over

the suit plot. The same has been used openly without any

objection. He would therefore submit that in view of section

110 of the India Evidence Act, 1872 presumption as to title of

plaintiff arises. In absence of evidence in rebuttal, plaintiff is

entitled for declaration of his ownership.

6. In support of his submissions, he relies upon

observations of the Supreme Court of India in case of Yerikala

Sunkalamma and another Vs. State of Andhra Pradesh,

Department of Revenue and others reported in 2025 DGLS

(SC) 437.

6 sa 320.95.odt

7. Mr. Deshpande, would further submit that since

plaintiff is in settled possession, he cannot be evicted without

following the due process of law. Therefore, decree of

perpetual injunction to that extent could have been passed.

8. In support of his contentions, he relies upon the

observations of the Supreme Court of India in case of Rame

Gouda (D) by L.Rs. M. Varadappa Naidu (D) by L.Rs. Reported

in 2003 DGL (SC) 1059.

9. Per contra, Mr. V.S. Badakh, learned AGP

appearing for respondent no.1 vehemently submit that there

cannot be dispute that suit property belongs to the State.

Plaintiff is asserting his own title and at same breath seeks

declaration of his ownership on the basis of adverse possession.

According to him, suit with conflicting pleas which are

detrimental to each other cannot be entertained. Mr. Badakh

would further submit that, assuming plaintiffs long standing

possession, other ingredients to treat his possession as adverse

to title of defendant are absent. Both Courts have recorded

concurrent finding that plaintiff failed to establish his title or

adverse possession for statutory period. Therefore, urges to

dismiss this second appeal.

7 sa 320.95.odt

10. Having considered submissions advanced, it is

apposite to refer to pleadings of plaintiff. The plaintiff asserts

that his forefathers acquired ownership of the land about 150

to 200 years ago from then rural and since then generations

after generation they are in possession. The suit property is

now fenced and there is construction of flour mill since 20 to

25 years. Water tank and cow-shade is also constructed in the

property. Plaintiff asserts that in the year 1965 an application

was moved to Village Panchayat by Karta of the family i.e.

Bajirao Sadashiv Patil to mutate suit property in his name.

Resolution No.15 to that effect is passed. It has been allotted

house No.170. According to plaintiff, his family is enjoying

aforesaid property openly without any obstruction as owner

known to the public at large. As such, apparently, plaintiff

acquired the title by adverse possession.

11. Plain reading of contents of plaint shows that

plaintiff is asserting his ownership based on title and in the

alternate claiming title by adverse possession. At this stage,

reference can be given to the observations of the Supreme

Court of India in case of State of Uttarakhand Mandir Vs.

Mandir Sri Laxman Sidh Maharaj reported in (2017) 9 SCC 8 sa 320.95.odt

579 that claim of independent title and adverse possession at

the same time amounts to contradictory pleas. Therefore,

prima facie, this Court finds that claim of the plaintiff seeking

declaration of independent title at one hand and adverse

possession on the other hand would amount to self destructing

pleas. Plaintiff can take alternative plea only when such plea

compliments or goes parallel with his other plea. Therefore, in

facts of the present case, plaintiff cannot be allowed to rest his

claim on the basis of self contradictory pleas.

12. Mr. Deshpande, learned senior advocate appearing

for the appellant vehemently submits that section 110 of the

Indian Evidence Act raises presumption of title owing to long

standing possession. According to him, once long standing

possession is established, plaintiff would be entitled to claim

his title by operation of law. By inviting attention of this Court

to the depositions of witnesses, he submit that plaintiff has

established his continuous possession for more than 35 to 40

years. Defendants could not rebut presumption. Therefore,

claim of plaintiff as to declaration of ownership needs to be

accepted.

9 sa 320.95.odt

13. Before proceeding to consider the aforesaid limb

of arguments, it is apposite to refer to section 110 of the Indian

evidence Act, 1972, which reads thus :-

110. Burden of proof as to ownership :-

"When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner."

14. Mr. Deshpande, in deference to his arguments

relies upon observations of the Supreme Court of India in case

of Yerikala (supra), particularly, on paragraph no.72 which

reads thus :-

"72. The Section embodies the well-recognized principle that possession is prima facie proof of ownership. A person in possession is entitled to remain in possession until another person can disclose a better title under Section 113 of the BSA. Therefore, once the plaintiff proves that he has been in possession of the suit property, the burden of proving that the plaintiff is not the owner is on the defendant who affirms that the plaintiff is not the owner. The Section does not make a distinction between the Government and a private citizen. Section 113 is, therefore, equally applicable where a Government claims to be the owner or challenges the ownership of the plaintiff who is in possession of the property. It is not disputed that before the possession of the Subject Land was taken over, the plaintiffs were in possession of the property for more than twenty years. The onus, therefore, under section 113 of the BSA was on the State to prove that the Government had a subsisting title to the Subject Land.

75. . Section 113 of the BSA provides that when the question is whether any person is the owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the 10 sa 320.95.odt

person who affirms that he is not the owner. The application of this Section to lands claimed by the Government or the Municipality has been considered by the Madhya Pradesh High Court in Jagannath Shivnarayan v. Municipal Commissioner, City Municipality, Indore reported in AIR 1951 MB 80."

15. It can be observed that, presumption under section

110 of the Act is based on public policy. However, such

presumption of the title as a result of possession can arise only

when facts disclose that no title vests in any party and

possession of the plaintiff is not prima facie wrongful. To rebut

such presumption, party the defendants are required to

displace this claim of apparent title and to establish beneficial

title in himself by leading satisfactory evidence. In short,

presumption contemplated under section 110 is rebuttable

presumption in favour of a person, who holds lawful

possession and contesting party fails to prove his title.

16. Turning back to facts of the present case,

defendant/State of Maharashtra filed written statement

contending that plaintiff is encroacher on suit property and he

has no lawful right to continue as such. It is pleaded that suit

land is part of Gayran Land, which is required by the

Government for implementing Government Schemes. It is

further pleaded that village Panchayat has no right to deal with 11 sa 320.95.odt

the aforesaid land. Village Panchayat acted in contravention of

the provisions of village Panchayat Act and passed the

resolution in favour of plaintiff.

17. Perusal of 7/12 extract shows that land gat no.147

(old S.No.75) is recorded in name of group Grampanchayat,

whereas, adjacent land gat no.148 is mutated in the name of

Khandu Patil. Except bare entry in village Panchayat record

based on resolution of 1965, there is absolutely no material to

show possession of plaintiff or his forefather over the suit

property. Although, plaintiff claims that his possession is since

150 years, no documentary evidence is placed on record in

support of his contentions. The plaintiff simply relies upon

oral evidence for that purpose, which would not be sufficient

to establish continuous possession. Even from statement of

witness Daulat Patil, it is brought on record that possession of

plaintiff is for last 40 years. Evidence of Daulat was recorded

on 22.9.1989. In cross-examination he states that he cannot

tell exact year from which plaintiff is in possession of suit plot.

He further clarifies his estimation as to plaintiffs possession is

approximate and tentative one. Another witness namely Lala

Pawar asserts about possession of plaintiff since his grand 12 sa 320.95.odt

father, but does not refer to particular year. Same is the case

with evidence of Devram Patil. Therefore, even from oral

evidence relied upon by plaintiff, he could not bring on record

theory of his possession for more than 30 years, which can be

held sufficient to raise presumption of his title.

18. Evidently, land is mutated in the name of village

Panchayat in revenue record. Since 1985 onwards, plaintiff

was served with notices to vacate the premises. The 7/12

extract from 1953 onward as to survey no.75 shows that name

of the Government has been consistently recorded. Lateron,

name of village Panchayat brought on record as per order of

the competent authority. Aforesaid evidence crystallize that

land is primarily owned by the Government and put into

occupation of village Panchayat. It is, therefore, evident that

defendant holds title to suit property and some times after

1960 to 1962 plaintiff came in possession. It is evident that

this is not a case where defendants could not bring any

material to show their title so as to raise presumption of

plaintiffs title on the basis of possession.

19. In a case of Yerikala (Supra), relied upon by

appellant/plaintiff, plaintiff was dispossessed by the 13 sa 320.95.odt

Government. Prior to that suit property was originally owned

by Harijana, who had mortgaged the same to Perugu Swamy

Reddy under the mortgage deed dated 6.6.1943. Laeron,

Perugu Swami's son filed suit for recovery of mortgage money.

The decree was passed for sale of mortgaged property. In court

auction, one Karuva Ramanna purchased the land. He was put

in possession under the court orders. Lateron Kuruva Sold

land under the registered sale deed dated 10.12.1970 to father

of the plaintiff, who enjoyed possession till his death.

However, government dispossessed plaintiff without following

due process of law. In this background, Supreme Court

observed that presumption under section 110 would arise in

favour of plaintiff when Government could not show title to

the property.

20. In the present case, plaintiff is not in a position to

plead and establish how his possession is legal or lawful. The

defendant state is shown as owner in old revenue record.

Hence basic ingredients to invoke presumption u/s 110 of

evidence act are absent in facts of present case. Since plaintiff

took alternate plea of adverse possession reference can be

given to certain observations of the Supreme Court in case of T. 14 sa 320.95.odt

Anjappa and Others Vs. Somlaingappa and Another reported in

(2006) 7 SCC 570 which reads thus :-

"13. It is well recognized proposition in law that mere possession however long does not necessarily means that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."

21. Similarly in case of D. N. Venkatarayappa and Ors. Vs. State of Karnataka and Ors. reported in (1997) 7 SCC 567 Supreme Court of India observed as under :-

"Physical fact of exclusive possession and the 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."

15 sa 320.95.odt

22. Applying aforesaid exposition of law in facts of the

present case, it can be observed that appellant/plaintiff failed

to prove that he was in continuous uninterrupted possession

for more than 30 years. There is nothing to prove his animus

to enjoy the property adverse to title of the Government and to

knowledge of the Government Officers. Therefore, Trial Court

as well as the Appellate Court has rightly observed that long

standing possession is not enough to establish title adverse to

owner. In the present case, plaintiff did not admit title of the

Government nor he pleaded the date since when his possession

became adverse. Concurrent findings as recorded by the

Courts below are in consonance with pleadings and evidence

coupled with exposition of law by the Supreme Court of India.

23. It is important to note here that when the suit is

instituted seeking declaration of title on the basis of adverse

possession, it is incumbent upon the Courts to find out exact

tenure of possession claimed by plaintiff whether his

possession is authorized or unauthorized or permissible. In

case of R. Hanumaiah Vs. Secretary to Government of

Karnataka, Revenue Department reported in (2010) 5 SCC 16 sa 320.95.odt

203, Supreme Court explained as to how title suits against

Government are to be dealt with and observed thus :-

"19. Suits for declaration of title against the government, though similar to suits for declaration of title against private individuals differ significantly in some aspects. The first difference is in regard to the presumption available in favour of the government. All lands which are not the property of any person or which are not vested in a local authority, belong to the government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual. The second difference is in regard to the period for which title and/or possession have to be established by a person suing for declaration of title. Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit for title against government. This follows from Article 112 of Limitation Act, 1963, which prescribes a longer period of thirty years as limitation in regard to suits by government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire state and it is not always possible for the government to protect or safeguard its properties from encroachments. Many a time, its own officers who are expected to protect its properties and maintain proper records, either due to negligence or collusion, create entries in records to help private parties, to lay claim of ownership or possession against the government. Any loss of government property is ultimately the loss to the community. Courts owe a duty to be vigilant to ensure that public property is not converted into private property by unscrupulous elements."

17 sa 320.95.odt

24. In light of the aforesaid discussion, there is no

merit in this Second Appeal. Second Appeal stands dismissed.

Pending civil application, if any, also stands disposed of.

25. Mr. Tiwari, learned advocate appearing for

appellant submits that, during pendency of the second appeal,

there was interim protection in favour of appellant, that may

be continued since appellant may take chance by filing SLP

before the Supreme Court.

26. Considering the submissions advanced and fact

that second appeal was pending for a long time, interim relief,

that was in operation shall continue for a period of twelve