====================================================== Most. Tara Devi v. The State Of Bihar
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.655 of 2010 ====================================================== Most. Tara Devi .... .... Appellant/s Versus The State Of Bihar .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Sharda Nand Mishra For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 7 04-07-2013 1. Heard the learned counsel Mr. Sharda Nand Mishra appearing on behalf of the appellant under Order 41 Rule 11 of the Code of Civil Procedure. 2.
Legal Reasoning
The plaintiff appellant appellant has filed this second appeal against the judgment and decree dated 31.8.2010 passed by Additional District Judge, Fast Tract Court No. 3, Banka in Title Appeal No. 11 of 2000 whereby the lower appellate court dismissed the appeal and thereby confirmed the judgment and decree of the trial court dated 30.11.1999 passed by the Sub Judge-1st, Banka in Title Suit No. 47 of 1992. 3. The plaintiff appellant filed the suit praying for declaration of title over the suit land measuring 2.51 acres alleging that the lands of plot Nos. 438 and 439 measuring 2.59 acres were in possession of her father-in-law Babu Anoop Lal. The nature of the land changed from Gair Mazurwa Aam to Gair Mazurwa Khash. Thereafter the father-in-law of the plaintiff applied for granting rent receipt by the Patna High Court SA No.655 of 2010 (7) dt.04-07-2013 2 ex-landlord who allowed him to remain in possession and granted rent receipt. Subsequently out of the 2.59 acres land 8 decimal was
Legal Reasoning
endowed by Babu Anoop Lal in favour of Shri Shitla Mata and the father-in-law remained in possession over the remaining land measuring 2.51 acres. Subsequently, on the death of her father-in- law and her husband the plaintiff came in possession of the same but in recent survey the suit land in new plot Nos. 513, 514, 515 has been shown as Parti land and Pokhar and recorded as Gair Mazurwa Sarvasadharan in the record of right. 4. The State of Bihar filed contesting written statement alleging that it is Gair Mazurwa Sarvasadharan land which was found in the last survey, therefore, the landlord could not have settled the land in favour of the father-in-law of the plaintiff because it is not an agricultural land. 5. The trial court considering the material i.e. documentary evidences and oral evidences recorded the finding that the plaintiff has not been able to prove that the nature of the land in suit changed from Gair Mazura Aam land to a cultivable land i.e. Gair Mazurwa Khash land of the landlord which was subsequently settled to Babu Anoop Lal. Accordingly, dismissed the plaintiff’s suit. On appeal, filed by the plaintiff, the lower appellate court considered the documentary evidences and recorded a finding that Ext.-5 shows that the plaintiff- appellant is encroacher to the said land and Patna High Court SA No.655 of 2010 (7) dt.04-07-2013 3 accordingly, dismissed the appeal. 6. The learned counsel Mr. Mishra submitted that in fact the plaintiff is in possession of the property since long after the death of her husband and father-in-law. In fact, the land was settled by the ex-landlord for which rent receipts were granted. The plaintiff has filed the receipts also but wrongly the courts below have recorded the finding that the plaintiff is not in possession of the property. According to the learned counsel the nature of the land is not changed to cultivable then there was no question of granting rent receipt arises but the courts below have wrongly held that the plaintiff failed to prove that the nature of the land changed. 7. From perusal of the lower appellate court judgment it appears that the lower appellate court at paragraph 6 has considered each and every documents which were filed by the plaintiff in support of her claim of title i.e. Exts.-1 to 5 and recorded the finding that the rent receipts are not related to the suit property. Ext.-4 is not a paper of settlement or Hukumnama by Ex-landlord. The lower appellate court after perusal of the said report Ext.4 and also the Ext.-5 recorded the finding that the plaintiff appellant is encroacher to the suit land. It is admitted fact that the suit land is recorded in the name of State of Bihar in the survey record of right. 8. The learned counsel for the appellant submitted that even if the plaintiff has not been able to prove her title on the basis of Patna High Court SA No.655 of 2010 (7) dt.04-07-2013 4 document then also since she is in possession from the time of her father-in-law she has acquired title by adverse possession. 9. So far this submission is concerned, it may be mentioned here that the plaintiff has filed suit for declaration of title and confirmation of possession. According to the plaintiff the property belonged to Anoop Lal who obtained the land in settlement from the ex-landlord in the year 1940. Therefore, when Anoop Lal himself was the owner of the property according to the plaintiff there is no question of adverse possession arises because the plea of adverse possession pre supposes that the owner is somebody else and the person claiming adverse possession was denying hostile title to the true owner. Here it is not the case. It is settled law that the long possession will never constitute adverse possession. For constituting adverse possession there must be corpus possidandi as well as animus possidandi i.e. in addition to physical possession there must not only be intention to possess the land denying the title of true owner but there must also be intention to dispossess the true owner. As has been held by the Hon’ble Supreme Court in the case of P.T. Munnichikanna vs. Revamma (2007) 6 SCC 59. 10. In the present case, the finding of both the courts below is that the plaintiff has encroached over the land. In the case of Mandal Revenue Officer vs. Goundla Venkaiyya 2010 AIR SCW 977 the Hon’ble Supreme Court has held that where an encroacher, illegal Patna High Court SA No.655 of 2010 (7) dt.04-07-2013 5 occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, Court is duty bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/ title of the State to immovable property and give upper hand to the encroachers, unauthorized occupants or land grabbers. 11. In view of above settled proposition of law, since the appellant is found to be encroacher, the declaration of title on the suit property on the basis of adverse possession cannot be granted. Moreover, the finding on the question of adverse possession is not a pure question of law but involves question of fact also. In such view of the matter, in my opinion, none of the points raised by the learned counsel are substantial question of law. 12. In the result, I find that no substantial question of law is involved in this second appeal and accordingly, this second appeal is dismissed at the stage of admission itself. S.S./- (Mungeshwar Sahoo, J)