Madhya Pradesh High Court
Nathuram vs Basanta on 20 January, 2025
Author: Anil Verma
Bench: Anil Verma
NEUTRAL CITATION NO. 2025:MPHC-GWL:1083
1 SA-1187-2021
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 20th OF JANUARY, 2025
SECOND APPEAL No. 1187 of 2021
NATHURAM
Versus
BASANTA AND OTHERS
Appearance:
Shri V. S. Chauhan - advocate for the appellant.
Shri Saket Udainiya - GA for the respondents/State.
Ms. Chitra Saxena, learned counsel for the respondent [R-1 and 2].
ORDER
Heard on the question of admission.
Appellant/plaintiff has preferred this second appeal under Section 100
of Code of Civil Procedure, 1908 (in short, `CPC) being aggrieved by the
impugned judgment and decree dated 18.08.2021 passed by Principal Distt.
Judge, Vidisha in RC No.14 of 2019 affirming judgment and decree dated
07.02.2019 passed by learned III ACJ Class-2 Vidisha to the court of First
Civil Judge, Vidisha in Civil Suit No.80A of 2017 whereby, the suit for
permanent injunction has been dismissed.
The facts in brief are that the appellant/plaintiff filed a suit for a
permanent injunction against respondents/defendants in relation to the
agricultural land bearing survey No.320 area 0.888 Hectares and Survey
No.324 area 1.055 Hectares situated in village Peepalkheda by stating that
NEUTRAL CITATION NO. 2025:MPHC-GWL:1083
2 SA-1187-2021
the appellant/plaintiff has been cultivating the aforesaid suit land since last
50 years and he is in absolute possession of the same. But on 23.06.2017, the
respondent/defendants No.1 and 2 illegally entered in the land in question
and started abusing him and further stated that the above land belonged to
them. The respondents want to take possession of the aforesaid land forcibly
therefore, they should be restrained from illegally interfering in possession of
the appellant over the suit land.
Respondents No.1 and 2/defendants denied the averments made by the
appellant/plaintiff by stating that there is no land concerning above survey
number therefore, on 10.01.2002 the government has given land of Survey
No.320/1 Area 0.585 Hectares situated at village Peepalkheda to respondent
no.1 on lease and respondent No.1 has given possession of the aforesaid land
on the spot after demarcating the same on 21.04.2002. The Government has
also given the land of Survey No.320/2 area 0.303 Hectares and Survey
No.322/1 area 0.282 Hectares situated in village Peepalkheda to defendant
no.2 on lease and government has given him possession of aforesaid land on
the same day. The appellant is not the owner of the land in question. The land
belongs to the State Govt. therefore, the suit is liable to be dismissed.
The defendant/respondent No.3 did not appear in the trial court despite
service of notice and did not file any written statement.
The trial court after recording evidence of both the parties, dismissed
the suit. Being aggrieved by the said judgment and decree, the
appellant/plaintiff preferred an appeal before the first appellate court, and the
first appellate court dismissed the same by affirming the judgment and
NEUTRAL CITATION NO. 2025:MPHC-GWL:1083
3 SA-1187-2021
decree passed by the trial court. Being aggrieved by the aforesaid, the
appellant has preferred this second appeal.
Learned counsel for the appellant has contended that the impugned
judgment and decree passed by both the courts below are illegal and not
based upon the proper appreciation of evidence. Both the courts below have
failed to consider oral and documentary evidence adduced by the appellant
and both the courts below have also erred in dismissing the suit preferred by
the appellant. The findings of both the courts below are perverse and against
the evidence available on record. Hence, the appeal deserves to be admitted
on the substantial question of law. In support of his contention, learned
counsel places reliance upon the judgment of the Hon'ble Apex Court in the
case of Balkrishna Dattatraya Galande Vs. Balkrishna Rambharose Gupt and
Another reported in (2020) 19 SCC 119.
Heard learned counsel for both the parties and perused the entire
evidence on record with due care.
From a perusal of record of the trial court, it appears that the
appellant/plaintiff filed a civil suit for a permanent injunction on the basis of
the adverse possession upon the suit in question. Therefore, the burden lies
upon the appellant to prove his case that he has acquired title over the suit
land by adverse possession.
The law with regard to perfecting title by adverse possession is well
settled. A person claiming title by adverse possession has to prove three
"neck" - nec vi, nec clam and nec precario. In other words, he must show that
his possession is adequate in continuity in publicity and in extent. Adverse
NEUTRAL CITATION NO. 2025:MPHC-GWL:1083
4 SA-1187-2021
possession must be adequate in continuity, in publicity and extent and a plea
is required at the least to show when possession becomes adverse so that the
starting point of limitation against the party affected can be found.
In the case of Ravinder Kaur Grewal and others Vs. Manjit Kaur and
others reported in 2019(2) RN 129 (SC), it has been held that:- 5
"48. The statute does not define adverse possession, it is a
common law concept, the period of which has been prescribed
statutorily under the law of limitation Article 65 as 12 years. Law
of limitation does not define the concept of adverse possession nor
anywhere contains a provision that the plaintiff cannot sue based
on adverse possession. It only deals with limitation to sue and
extinguishment of rights. There may be a case where a person who
has perfected his title by virtue of adverse possession is sought to
be ousted or has been dispossessed by a forceful entry by the
owner or by some other person, his right to obtain possession can
be resisted only when the person who is seeking to protect his
possession, is able to show that he has also perfected his title by
adverse possession for requisite period against such a plaintiff.
49. Under Article 64 also suit can be filed based on the possessory
title. Law never intends a person who has perfected title to be
deprived of filing suit under Article 65 to recover possession and
to render him remediless. In case of infringement of any other
right attracting any other Article such as in case the land is sold
away by the owner after the extinguishment of his title, the suit
can be filed by a person who has perfected his title by adverse
possession to question alienation and attempt of dispossession.
50. Law of adverse possession does not qualify only a defendant
for the acquisition of title by way of adverse possession, it may be
perfected by a person who is filing a suit. It only restricts a right of
the owner to recover possession before the period of limitation
fixed for the extinction of his rights expires. Once a right is
extinguished another person acquires a prescriptive right which
cannot be defeated by reentry by the owner or subsequent
acknowledgment of his rights. In such a case suit can be filed by a
person whose right is sought to be defeated."
There is the acquisition of title in favour of the plaintiff though it is a
NEUTRAL CITATION NO. 2025:MPHC-GWL:1083
5 SA-1187-2021
negative conferral of right on extinguishment of the right of an owner of the
property. The right ripened by prescription by his adverse possession is
absolute and on dispossession, he can sue based on 'title' as envisaged in the
opening part under Article 65 of the Limitation Act. Under Article 65, the
suit can be filed based on the title for recovery of possession within 12 years
of the start of adverse possession, if any, set up by the defendant. Otherwise
right to recover possession based on the title is absolute irrespective of
limitation in the absence of adverse possession by the defendant for 12
years. The possession as a trespasser is not adverse nor long possession is
synonym with adverse possession. In Article 65 in the opening part a suit
"for possession of immovable property or any interest therein based on title"
has been used. Expression "title" would include the title acquired by the
plaintiff by way of adverse possession. The title is perfected by adverse
possession has been held in a catena of decisions.
Appellant/plaintiff Nathuram (PW1) before the trial court has deposed
that he is in possession of the suit land since last 50 to 60 years and he is
regularly cultivating the land and on 23.06.2017, defendant Basant and
Gabru illegally tried to interfere in his possession over the suit land. Mohan
Singh (PW2) had also deposed in the same manner. Appellant/plaintiff also
filed some revenue receipts as Ex.P/1 to P/6, Panchshala Khasra for the
period of 1979-80 to 1983-84, Ex.P/9 for the period 1984-85 to 1988-89, and
Ex.P/8 for the period 1999-2000 to 2002-03. From a perusal of aforesaid
documents, it appears that all these Panchshala Khasra belong to Suvey
Nos.320 and 324, an area of which has been given to respondents No.1 and 2
NEUTRAL CITATION NO. 2025:MPHC-GWL:1083
6 SA-1187-2021
on lease. The appellant/plaintiff did not file any relevant document to
establish the fact that Khasra No.320 and 324 have been converted into
Khasra No.322/1 and 322/2. Therefore, on the basis of the aforesaid, the
appellant has failed to prove that he is in possession of the land in question
for more than the last 50 years continuously. Therefore, on the basis of the
aforesaid evidence, the trial court as well as the first appellate court have
given the concurrent findings of fact that the appellant has failed to prove
adverse possession over the suit land.
In the light of the aforesaid discussion, this Court is of the considered
opinion that the impugned judgment passed by both the courts below are well
reasoned and based upon the due appreciation of oral as well as documentary
evidence available on record. The findings recorded by both the courts below
are concurrent findings of facts. The appellant has failed to show how the
findings of facts recorded by 8 both the courts below are illegal, perverse,
and based on no evidence. Thus, no substantial question of law arises for
consideration in the present second appeal.
Enunciation of law by the Hon'ble Apex Court in the case of Hari
Narayan Bansal Vs. Dada Dev Mandir Prabandhak Sabha (Barah Gaon)
Patam, reported in (2015) 16 SCC 540 empowers this Court to finally
dispose of this appeal without framing the substantial questions of law at the
admission stage itself. The observation made by Hon'ble Supreme Court is
reproduced hereinbelow:-
"In our opinion, a substantial question of law is not required to be
framed if the High Court decides to dismiss the second appeal at
an admission stage. Only in a case where the second appeal is
admitted or is decided finally by allowing the same, a substantial
NEUTRAL CITATION NO. 2025:MPHC-GWL:1083
7 SA-1187-2021
question of law is required to be framed by the High Court. In the
instant case, no substantial question of law was involved in the
second appeal and therefore, the High Court had rightly dismissed
the second appeal at the admission stage by passing the impugned
order. We, therefore, see no reason to entertain this Petition."
The Supreme Court in a number of cases has held that in exercise of
powers under Section 100 of the Code of Civil Procedure can interfere with
the findings of fact only if the same is shown to be perverse and based on no
evidence. Some of these judgments are Hajazat Hussain vs. Abdul Majeed &
others, 2011 (7) SCC, 189 and Union of India vs. Ibrahim Uddin, 2012 (8)
SCC 148.
Accordingly, the present second appeal sans merit and is hereby
dismissed at the admission stage for the reasons indicated above.
No order as to costs.
C.C. as per rules.
(ANIL VERMA)
JUDGE
Rks
