Shanti Lal v. State Of Chhattisgarh Through Collector, Baloda Bazar, District Baloda Bazar - Bhatapara

is government grassland. Out of 10.883 hectares of land, plaintiff has been occupying and cultivating 1.174 hectares since his father's time, approximately 30-32 years ago, by constructing a house on it and cultivating paddy crop. Plaintiff is a very poor man working as a labourer. Apart from suit land, plaintiff owns no other agricultural land or residential house. Plaintiff's entire family are dependent on the suit land for their livelihood. It was pleaded that approximately four months ago, defendant No. 2/Tehsildar, Bilaigarh initiated proceedings against the plaintiff for eviction. A show-cause notice has been issued to plaintiff. In response to said notice, plaintiff personally appeared before defendant No. 2 and submitted an oral request that he had been peacefully occupying the suit land by cultivating the land and constructing a house on it for 30-32 years, therefore, he should be granted patta of the suit land. However, plaintiff was proceeded stating him to be an encroacher on the government land, whereas, due to the plaintiff's continuous peaceful possession for 30-32 years, he has become an absolute owner of the suit land on the basis of adverse possession.

#3. Defendants have filed their written statement denying the pleadings made by the plaintiff in the plaint and stated that Khasra No. 3369/1 measuring 10.833 hectares of land situated in village Pawani is -3- government grass land. According to the government record, there is no previous possession of the plaintiff or his father on the said government land. In the plaint, plaintiff stated his age to be 43 years but is claiming to have been in possession over the government land for 30-32 years, when he was minor of about 10-12 years, which is not acceptable. A revenue case of encroachment against the plaintiff is previously registered and an order was passed against him to vacate the government land. In compliance of the said order, defendant No. 2 issued a notice to plaintiff/non-applicant according to law. Defendants further stated that only the Collector has the right to grant a patta of government land. No application has been made by the plaintiff, nor has the plaintiff given any written or oral request for grant of patta. Plaintiff is not entitled to be owner of the suit land on the basis of adverse possession. In their additional statement, it has been further stated by defendants that on the basis of report given by Halka Patwari of encroachment on the Government Grass Land in the year 2007-08 against plaintiff Shantilal, Tahsildar Bilaigarh registered a case of encroachment No. 02 A/68 for eviction of the plaintiff from government grass land situated at Kh. No. 3368/1 measuring 1.174 hectare and the then Tahsildar had imposed fine of Rs. 500/- on the plaintiff/non- applicant in the said case and an order of eviction was passed on

06.10.2007, against which plaintiff/non-applicant has not filed any appeal before the higher revenue authority challenging his eviction order till date nor has it been set aside and, hence, the order of eviction attained its finality. In compliance of the eviction order passed against the plaintiff, he was evicted from the suit land on 02.08.2010, removing -4- his illegal possession/encroachment in presence of Sarpanch of Gram Panchayat Pawni and the villagers, and reserved the land as grazing land for cattle. Since plaintiff's possession on the said government land has been removed, plaintiff's claim of title on the suit land based on adverse possession is not sustainable. Since the plaintiff's possession of the suit land has been removed, he being encroacher, there is no question of grant of permanent or temporary injunction in favour of plaintiff. Plaintiff's suit is liable to be dismissed.

#4. Upon considering the oral and documentary evidence adduced by both the parties, learned trial Court dismissed the suit of the plaintiff holding that plaintiff was not found in continuous possession over the suit property without any hindrance and within the knowledge of original landowner and since the plaintiff's possession over the suit land is not proved, plaintiff is also not entitled to obtain permanent injunction in respect of the suit land.

#5. Being aggrieved by the judgment and decree passed by learned trial Court, appellant/plaintiff preferred civil appeal before learned Second Additional Sessions Judge, Balodabazar which also came to be dismissed, which is under challenge in this second appeal.

#6. Learned counsel for the appellant/plaintiff would submit that learned Courts below erred in dismissing the suit and passing the impugned judgment and decree dismissing the appeal. He contended that learned trial Court as well as learned appellate Court failed to consider that the plaintiff being a poor person was in continuous possession over the suit land for 30-32 years since the lifetime of his father. Due to -5- plaintiff's continuous peaceful possession for 30-32 years over the suit land, he become absolute owner of the suit land on the basis of adverse possession. Therefore, impugned judgment and decree passed by both the Courts below be set aside and decree of declaration of title over the suit land and permanent injunction be granted in favour of appellant.

#7. On the other hand, learned counsel for the State supports the impugned judgment and decree.

#9. I have heard learned counsel for the parties and also perused the records of both the Courts. In the case at hand, it is not in dispute that the suit land is a government grass land. Plaintiff -Shantilal in his affidavit under Order 18 rule 4 of CPC, has deposed that in his village Pawni, out of 10.883 hectare government grassland situated at khasra No. 3369/1, he has been occupying 1.174 hectare of land since the time of his father, by constructing a house and cultivating paddy crop, for about 30-32 years ago. Plaintiff is a poor man. He does not have any other land except the suit land. In the year 2002 on behalf of government, Tahsildar Bilaigarh had granted land rights for about one acre of land, which plaintiff is occupying peacefully by planting various types of plants. Statement of plaintiff Shantilal was also supported by plaintiff's witness Kartikram, Ajay Chourasiya, Horilal and Narayan. However, from perusal of evidence placed on record by plaintiff it is not appearing that plaintiff has produced any document so as to prove his possession over the suit land. Plaintiff produced khasra panchshala of the suit land -6- of the year 2007-08 (Ex. P-7). Plaintiff has also stated that Tehsildar, Bilaigarh, granted him a title deed for approximately one acre of land in the year 2002 for plantation purpose. However, plaintiff has not produced any documentary evidence to demonstrate that he was granted patta of the suit land. Perusal of Ex.P-3 would show that in year 2001-02 land admeasuring 0.404 hectare situated at P.H. No.3 out of khasra No.3369/1 was allotted to plaintiff Shantilal under “Hareli Saheli Scheme” only for the purpose of plantation, however, documentary evidence adduced by the defendants shows that the plaintiff has illegally constructed house on it and is doing agricultural work on the allotted land. Plaintiff has placed on record Ex.P-6 which is copy of order dated 04.09.2014 passed by Sub Divisional Officer, Bilaigarh in Revenue Case No.2 A/68 year 2007-08 (State Vs. Shantilal) which shows that jail warrant was issued against him to send to civil prison under the provision of Section 248 (2-A) of the Land Revenue Code for not removing encroachment over the suit land. Plaintiff claims to have occupied the suit land for 30-32 years, however, while filing suit, he stated his age as 43 years, meaning thereby that 30-32 years ago, plaintiff would have been approximately 10-11 years old. Therefore, plaintiff's averment that he was in possession of the suit land at the age of 10-11 appears to be unreasonable. Merely stating that the plaintiff is in possession of the suit land for 30-32 years cannot declare him the owner of the suit land.

#10. Learned trial Court, after close scrutiny of facts and appreciating the evidence, oral and documentary, available on record, dismissed the suit filed by the plaintiff, holding that the plaintiff failed to prove his -7- continuous and peaceful possession over the suit property so as to entitle him of grant of decree on the basis of adverse possession, hence, he is not entitle to claim title over the suit property. Learned first appellate Court also, while deciding the appeal filed by appellant/plaintiff against the judgment and decree passed by learned trial Court, dismissed the appeal holding that merely by occupying the government land for many years, a person cannot become owner of that land, no document is available to prove that plaintiff was granted bhoomi-swami rights to occupy and cultivate 1.174 hectares of land out of khasra No. 3369/1.

#11. It is a well- settled principle that a person claiming adverse possession must prove that he is in hostile possession by clearly asserting hostile title in denial of title of the true owner. His possession is nec vi, nec clam, nec precario, that is, peaceful, open and continuous. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession, which the plaintiff, failed to prove. [

#12. Second appeal is to be admitted only when it involves substantial question of law. Though in the appeal, appellant has proposed the questions to be substantial questions of law, however, from bare perusal of it would show that attempt is made to get the facts and evidence re-appreciated which is not permissible in second appeal filed under Section 100 of CPC. Interference in concurrent finding of facts can only when, it is demonstrated that finding recorded by Courts below is perverse to the evidence available on record. -8-

#13. Hon’ble Supreme Court in case of State of Rajasthan and Ors. Vs. Shiv Dayal and Anr. (2019) 8 SCC 637 has observed thus: “14. True it is as has been laid down by this Court in several decisions that “concurrent finding of fact” is usually binding on the High Court while hearing the second appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”). However, this rule of law is subject to certain well-known exceptions mentioned infra.

#15. It is a trite law that in order to record any finding on the facts, the trial court is required to appreciate the entire evidence (oral and documentary) in the light of the pleadings of the parties. Similarly, it is also a trite law that the appellate court also has the jurisdiction to appreciate the evidence de novo while hearing the first appeal and either affirm the finding of the trial court or reverse it. If the appellate court affirms the finding, it is called “concurrent finding of fact” whereas if the finding is reversed, it is called “reversing finding”. These expressions are well known in the legal parlance.

#16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (See observation made by learned Judge, Vivian Bose, J., as his Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar [Rajeshwar -9- Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar, 1942 SCC OnLine MP 26 : AIR 1943 Nag 117] para 43.)

#17. In our opinion, if any one or more ground, as mentioned above, is made out in an appropriate case on the basis of the pleading and evidence, such ground will constitute substantial question of law within the meaning of Section 100 of the Code.”

#14. Hon’ble Supreme Court in case of C. Doddanarayana Reddy (dead) by LRs and Ors. Vs. C. Jayarama Reddy (Dead) by LRs. and Ors. (2020) 4 SCC 659 has observed thus:-

#25. The question as to whether a substantial question of law arises, has been a subject-matter of interpretation by this Court. In the judgment in Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan [Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan, (1999) 6 SCC 343] , it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under : (SCC pp. 347-48, paras 12-15) “12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record. 13. In Ramanuja Naidu v. V. Kanniah Naidu [Ramanuja Naidu v. V. Kanniah Naidu, (1996) 3 SCC 392] , this Court held : (SCC p. 393) ‘It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of the Civil Procedure Code. The Single Judge of the -10- High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did.’

#14. In Navaneethammal v. Arjuna Chetty [Navaneethammal v. Arjuna Chetty, (1996) 6 SCC 166] , this Court held : (SCC p. 166) ‘Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. … Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material.’

#15. And again in Taliparamba Education Society v. Moothedath Mallisseri Illath M.N. [Taliparamba Education Society v. Moothedath Mallisseri Illath M.N., (1997) 4 SCC 484] , this Court held : (SCC p. 486, para 5) ‘5. … The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact, which is impermissible.’”

#26. In a judgment in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722] , this Court held that from a given set of circumstances if two inferences are possible then the one drawn by the lower appellate court is binding on the High Court. In the said case, the first appellate court set aside the judgment of the trial court. It was held that the High Court can interfere if the conclusion drawn by the lower court was erroneous being contrary to mandatory provisions of law applicable or if it is a settled position on the basis of a pronouncement made by the court or based upon inadmissible evidence or arrived at without evidence. This Court -11- held as under : (SCC p. 725, para 5) “5. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the Apex Court, or was based upon in inadmissible evidence or arrived at without evidence.”

#27. In another judgment in Santosh Hazari v. Purushottam Tiwari [Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179] , this Court held as under : (SCC pp. 187-88, para 14) “14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be “substantial”, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law “involving in the case” there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question -12- involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.”

#28. Recently in another judgment in State of Rajasthan v. Shiv Dayal [State of Rajasthan v. Shiv Dayal, (2019) 8 SCC 637 : (2019) 4 SCC (Civ) 203] , it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded dehors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under : (SCC p. 640, para 16) “16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (See observation made by the learned Judge Vivian Bose, J. as his Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar [Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar, 1942 SCC OnLine MP 26 : AIR 1943 Nag 117] , AIR Nag para 43).”

#29. The learned High Court has not satisfied the tests laid down in the aforesaid judgments. Both the courts, the trial court and the learned first appellate court, have examined the school leaving certificate and returned a finding that the date of birth does not stand proved from such certificate. May be the High Court could have taken a different view acting as a -13- trial court but once, two courts have returned a finding which is not based upon any misreading of material documents, nor is recorded against any provision of law, and neither can it be said that any Judge acting judicially and reasonably could not have reached such a finding, then, the High Court cannot be said to have erred. Resultantly, no substantial question of law arose for consideration before the High Court.

#30. Thus, we find that the High Court erred in law in interfering with the finding of fact recorded by the trial court as affirmed by the first appellate court. The findings of fact cannot be interfered with in a second appeal unless, the findings are perverse. The High Court could not have interfered with the findings of the fact.”

#15. For the foregoing discussions, evidence available on record, judgments as referred to above, in the opinion of this Court, finding recorded by both the Courts is on proper appreciation of facts and evidence. Hence, the concurrent finding recorded by both the Courts does not call for interference of this Court. No substantial question of law is involved in this appeal. It is accordingly dismissed at motion stage

#16. No orders as to cost.

#17. Decree be drawn accordingly. Sd/- Sd/- (Parth Prateem Sahu) Judge Praveen