Anil Kumar vs Municipal Council and Others

Anil K. Sharma, J.—Appellant/plaintiff has filed this second appeal u/s 100 of CPC against the judgment and decree dated 1/5/2009 passed by learned First Additional District Judge, Ashoknagar in Civil Appeal No. 02/09 setting aside the judgment and decree dated 19/01/2009 passed by learned First Civil Judge, Class-II, Ashok Nagar in civil suit No. 21-A/2008. The brief facts of the case are that appellant/plaintiff has filed a civil suit for declaration of title and permanent injunction and for removal of encroachment and possession of the land bearing survey No. 1301 min 2 area 0.221 hectare situated at Ashoknagar came in the share of plaintiff''s father Kabool Chand in partition with co.-bhumiswamis vide partition deed dated 30/01/1998. The land was purchased by plaintiff''s father alongwith 4 other persons vide registered sale deed dated 14/09/1984 from Prabhati Lal. On 4/12/1998, the employees of the respondent/defendant No. 1 came and demolished the wire fencing and took away iron angle and wire and no response was given to the application filed by plaintiff for returning the same. In the office of respondent/defendant No. 1, name of plaintiff''s father was mutated on the disputed land in case No. 15/18-6-1999 as per the partition deed and recorded in the khasra in the year 2004-05. The appellant/plaintiff also deposited diversion tax on 5/9/2002 and 7/11/2005. The appellant/plaintiff applied for demarcation in Tahsil which was registered as case No. 68-A/12/2002-03 and demarcation was made on spot by revenue inspector on 8/8/2003. In demarcation, it was found that from North to South towards West 1.030 chain and in the East Side 0.30 chain and from West to East 3.20 chain area is of cremation ground and rest of the area is in the Aron road. After demarcation, appellant/plaintiff filed applications on 15/12/2003 and 31/05/2004 in the office of respondent/defendant No. 1 to remove the fencing but defendant No. 1 did not remove the fencing. On 21/09/2004, during preparation of demarcation panchnama, encroachment of respondent/defendant No. 1 was found on the disputed land but respondent/defendant No. 1 did not remove the encroachment, therefore, plaintiff served a registered notice to the respondent/defendant No. 1 on 14/11/2005 of which fictitious reply was given on 2/12/2005 and therefore, the plaintiff has filed a civil suit for possession and permanent injunction.

The respondent/defendant No. 1, in his written statement has denied that the allegations and further stated that disputed land is the land of cremation ground of which Municipality is owner and is in possession since 1963, therefore, suit is barred by limitation.

Learned trial Court by its judgment and decree dated 19/01/2009, passed the decree in favour of appellant/plaintiff by holding that plaintiff is owner of the disputed land and respondent/ defendant No. 1 is illegally in possession of the suit land and appellant/plaintiff is entitled for possession and permanent injunction of the disputed land.

Learned lower appellate Court by its judgment and decree dated 1/5/2009 set aside the judgment passed by learned trial Court by holding that suit has been filed beyond limitation period, therefore, plaintiff is not entitled for obtaining the possession of the suit land. Being aggrieved by the findings of learned lower appellate Court, appellant/plaintiff has filed this second appeal.

Vide order dated 07/07/2010, this Court has admitted this second appeal on following substantial question of law:-

Whether the suit of the plaintiff could have been legally dismissed ignoring the demarcation proceedings of the year 2003 (wrongly mentioned as 2004 because suit inspection was made on 8/8/2003)?

Learned counsel for the appellant has drawn attention of this Court towards the certified copy of report submitted by Revenue Inspector (Ex. P/2) according to which at the time of demarcation of the spot on 8/8/2003, boundaries were demarcated and pits were dug for demarcation of the boundaries of plaintiff and defendant No. 1 and plaintiff was found in possession of defendant No. 1 and on the remaining part of the land, Ashoknagar Aron road was constructed.

Learned counsel for the appellant has further drawn attention of this Court towards the sale deed and khasra entries according to which disputed land stands in the name of plaintiff. On 8/8/2003, spot inspection was conducted and process for demarcation of boundaries was conducted after giving notice to the Chief Municipal Officer, copy of which is available as Ex. P/13.

Learned counsel for the appellant has submitted that learned trial Court has rightly held that suit was not beyond limitation because it was for the first time at the time of demarcation of boundaries on 8/8/2003, it came in the knowledge of the plaintiff and even defendant No. 1 that land of plaintiff is in possession of defendant No. 1, therefore from 8/8/2003 after demarcation of the boundaries, it cannot be said that suit of plaintiff was barred by limitation.

It is further contended by learned counsel for the appellant that even plea of adverse possession of defendant No. 1 is not admissible because defendant No. 1 was having no knowledge about the boundaries of the land and he has never denied the title of appellant/plaintiff and mere long possession cannot be treated as adverse possession.

Learned counsel for the appellant/plaintiff has cited the judgment of Hon. Apex Court in the matter of Deva (Dead) thr. Lrs. Vs. Sajjan Kumar (Dead) by Lrs., , in which it has been held that in a suit for possession of land encroached on, admission by defendant that he came to know of his alleged encroachment of the land only on institution of the suit, since the animus to hold the land adversely to the title of the true owner could be said to have started only upon institution of the suit, held, this negatived the defendant''s case of having prescribed title by adverse possession. Mere long possession of defendant for a period of more than twelve years without intention to possess the suit land adversely to the title of the plaintiff and to the letter''s knowledge cannot be result in acquisition of title by prescription. Even the concurrent findings of fact can be interfered with when a very important piece of evidence in the nature of an admission by defendant has been overlooked by the Courts below.

Learned counsel for the appellant has also cited the judgment of this Court in the matter of Gajraj Singh Vs. Ram Singh and Others, 6, in which it has been held that the question of adverse possession is mixed question of law and fact and possession under mistake cannot be adverse as there has to be hostile animus and assertion of title.

Learned counsel for the appellant has also cited the judgment of Hon. Apex Court in the matter of Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan and Others, , in which it has been held that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his title was hostile to the real owner and mounted to denial of his title to the property claimed. The ordinary classical requirement of adverse possession is that it should be nec vi, nec claim, nec precario and the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.

The defendant No. 1 and even plaintiff came to know about the possession of defendant No. 1 on the land of plaintiff only after demarcation of boundaries on 8/8/2003. The plaintiff and his predecessors-in-title were having ownership of the land in revenue record and mutation of name of plaintiff was also done and plaintiff has paid the required diversion tax etc. and his name has been mutated on the disputed land after following due process for law, therefore, it cannot be said that defendant No. 1 has become owner of the suit land on the ground of adverse possession. The defendant No. 1 has never challenged the title of plaintiff or his predecessor-in-title and never claimed title adverse to him till passing of impugned judgment, therefore, merely by considering the fact that suit land was reserved for cremation ground by proposal of the Municipality and it was in possession of Municipality since 1963 is perverse and learned lower appellate Court has not considered the fact that at the time of demarcation of boundaries on 8/8/2003 there was no wire fencing of Municipality showing the possession of Municipality. On the other hand, boundaries of plaintiff''s land were demarcated and pits were dug for demarcation of the boundaries, therefore, under mistake, Municipality was in possession of the disputed land and its possession therefore, cannot be said to be adverse to the plaintiff''s title because Municipality was under mistake of fact that land belongs to cremation ground and belong to Municipality.

Therefore, learned lower appellate Court is not justified in reversing the impugned judgment and decree passed by learned trial Court. Learned trial Court has given proper reasoning for treating the suit within limitation by holding that the beginning point of adverse possession will be the date on which wire fencing were removed from the disputed land which is 4/12/1998 and suit has been filed on 23/01/2006, which was within limitation. Thus, learned lower appellant Court has not legally dismissed the suit of plaintiff by reversing the judgment of trial Court ignoring the demarcation proceedings of the year 2003 by holding that suit filed by the plaintiff is beyond limitation. In the result, appeal is allowed and judgment and decree passed by learned lower appellate Court is hereby set aside and that of learned trial Court is hereby confirmed. Respondent No. 1 is directed to bear its own costs as well as of appellant-plaintiff. Counsel fee as per schedule, if certified.