Tapaswi Choubey & Ors v. The State Of Bihar & Ors

appellate Court dismissed the appeal and confirmed the Judgment and Decree dated 30.07.2008 passed by the learned Munsif Ist, Ara, Bhojpur in title suit No.99 of 1997.

3. The plaintiff filed aforesaid suit praying for declaration of title alleging that the suit property was settled by ex. landlord Babu Bansh Ropan Sah and Sheo Pujan Sah in favour of the appellant’s father. In the revisional survey by mistake, the name has been recorded as Anawad Bihar Sarkar.

4. The State of Bihar defendants filed contesting written statement denying the settlement made by the ex. landlord. The 2 Patna High Court SA No.252 of 2012 (5) dt.23-09-2013 further case is that the plaintiff never came in possession of the property and in collusion with the Karmchari, he got his possession recorded in the revisional survey khatiyan. According to the defendants, the property is the gair Majrua Aam property.

5. The trial Court on the basis of evidence, disbelieved the case of the plaintiff’s settlement and held merely on the ground that the plaintiffs name has been mentioned as in illegal possession, title will not be conferred on the appellant. Accordingly, the trial Court dismissed the plaintiff’s suit. On appeal, the lower appellate Court recorded the same finding and confirmed the Judgment and Decree of the trial Court and dismissed the appeal.

6. The learned senior counsel, Mr. Kamal Nayan Chaubey, appearing on behalf of the appellant raised only one question by relying on the decision of this Patna High Court in the case of Brij Bhukan Kalwar Vs. S.D.O., Siwan A.I.R. 1955 Patna 1, Full Bench and submitted that the khatiyan ext.5/A shows that Gaya Chaubey s/o Cdhuta Chaubey is in illegal possession (voS/k [kuu) since 1963 which clearly proves that the plaintiff is in possession of the property more than 12 years as such has acquired title by adverse possession, but both the Courts below without considering the principle laid down by the Full Bench have wrongly dismissed the plaintiff’s suit for declaration of title. Except this point, no other point has been raised.

7. From perusal of the Judgment of the Courts below, it appears that both the Courts below disbelieved the case of settlement made by the plaintiff. Both the Courts below held that 3 Patna High Court SA No.252 of 2012 (5) dt.23-09-2013 the property was always recorded in the name of State of Bihar and in the possessory column illegal possession of the plaintiff’s father was recorded. From perusal of the decision of the Full Bench relied upon by the appellant, it appears that in the Full Bench decision, it has been held at page 12 that for the purpose of encroachment, there is no distinction between private land and public land, and it is, therefore, that in a series of decisions, this Court has said that the owner’s title to the portion encroached upon and built over is extinguished at the end of 12 years. It appears that in that case the Full Bench was considering Article 144 of the Limitation Act, 1908. The present suit has been filed in the year 1997. The Limitation Act has been amended in the year 1963 and now the law has been settled that the plaintiffs required to prove his title and the plaintiff’s suit will be barred by adverse possession if it is proved by the defendant. Here, the plaintiff himself is claiming title on the basis of adverse possession. In view of the above fact, the Full Bench decision relied upon by the appellant is not applicable at all.

8. In the case of Mandal Revenue Officer Vs. Goundla Venkaiah A.I.R. 2010 SCW 977, the Hon’ble Supreme Court has held that where an encroacher, illegal occupant or land grabber of public property raised a plea that he has perfected title by adverse possession, the 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. 4 Patna High Court SA No.252 of 2012 (5) dt.23-09-2013

9. In the case P. T. Munichikkanna Reddy Vs. Revamma 2007 (6) S.C.C. 59, the Hon’ble Supreme Court has held that adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. There must not only be intention to possess the property but there also must be intention to dispossess the real owner.

10. In the case of State of Haryana Vs. Mukesh Kumar 2011 (10) SCC 404, the Hon’ble Supreme Court has held that 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 adverse possession. People are often astonished to learn that trespasser may take the title of a building or land from the true owner in certain conditions and such theft is even authorize by law. The theory of adverse possession is also perceived by the general public as a dishonest way to obtain title of property. Property right advocates argue that mistake by landowners or negligence on their part should never transfer their property right to a wrongdoer, who never paid valuable consideration for such an interest. In the present case the only fact is that the plaintiff’s father has been shown in illegal possession of the property in the record of right since the year 1963. It is settled principle of law that 5 Patna High Court SA No.252 of 2012 (5) dt.23-09-2013 mere possession howsoever long it may be it will never constitute adverse possession. There is no evidence to show that when the plaintiff started claiming hostile title on the property.

11. The learned counsel for the appellant submitted that subsequently in the consolidation proceeding, the property has been recorded in the name of the plaintiff and certificate has been granted which is final in view of the Section 15 of the Consolidation of holdings the Prevention of Fragmentation Act, 1956. It may be mentioned here that no document has been produced to show that any certificate has been granted in favour of the plaintiff by the authorities under the Consolidation Act. Moreover, even if certificate is grnated thenalso civil Court has the jurisdiction to decide the question of title as has been held in the case of Md. Hyder Zan 2000 (2) PLJR 338 (F.B.)

12. In view of the above discussion, I find that the decision relied upon by the appellant, i.e., Full Bench decision of Patna High Court is not applicable in the present case and the finding recorded by both the Courts below, therefore, cannot be interfered with in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. The question raised by the learned counsel for the appealing is not at all substantial question of law involved in this second appeal for decision. Accordingly, this second appeal is dismissed at the admission stage itself. Sanjeev/- (Mungeshwar Sahoo, J)