High Court
Legal Reasoning
1 sa no.342.24+ca.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO.342 OF 2024 WITHCIVIL APPLICATION NO.12132 OF 2024Sahebrao Shrirang Kale,age 74 years, Occ. Agriculture,Resident of Umbargaon, Tq. Shrirampur,District Ahmednagar.Appellant. (orig. plaintiff)Versus1.The Collector, District Ahmednagar.2.Additional Collector and President ofKhandakari, Jamin Vatap Samitee,District Ahmednagar.3.The Head of Committee and Deputy Collector,(Land Acquisition), Dist. Ahmednagar.4.The Sub Divisional Officer,Shrirampur, Dist. Ahmednagar.5.The Tahsildar, Shrirampur,Dist. Ahmednagar.6.The Circle Officer, Belapur (Talathi Office)Shrirampur, Dist. Ahmednagar.7.Maharashtra State Farming Corporation,(Khandakari Shetkari Vatap Vibhag),Gandhiwadi, Tq. Shrirampur,Through and for Estate Manager,Mr. Ashok Ramchandra Kolhe,age 64 yrs, Occ. Service, R/o Tilak Nagar Mala, Tq. Shrirampur,Dist. Ahmednagar.Respondents. (Orig. Defendants)...Mr. R.A. Tambe, advocate for the appellant.
Legal Reasoning
2 sa no.342.24+ca.odtMr. D.B. Bhange AGP for respondents Nos.1 to 6-State.Mr. P.V. Barde, advocate for respondent no.7 Caveator....CORAM :S. G. CHAPALGAONKAR, J.Dated:November 25, 2024JUDGMENT :-1.Present second appeal filed by original plaintifftakes exception to the judgment and decree dated 12.8.2024passed by the District Judge-2, Shrirampur, DistrictAhmednagar in R.C.A. No.2 of 2022 thereby reversing thejudgment and decree dated 16.11.2021 passed by the CivilJudge S.D., Shrirampur in R.C.S. No.10 of 2015.2.Mr. Rahul Tambe, learned advocate appearing forthe appellant submit that the land survey no.20/2 admeasuring9 acres 1 R situated at Umbargaon, Tq. Shrirampur (now blockno.29) was originally owned by Bajirao Rakhma Kale andMakha Mukinda Kale. Plaintiff’s father was adjacent landholder in block no.28. Owners of land block no.29 had leasedout the land to Maharashtra Sugar Mills Limited, Tilak Nagar.However, it remained uncultivated. The plaintiff’s father tookover possession of 1 A 11 R portion from the land gat no.29 on 3 sa no.342.24+ca.odt10.10.1955 and continued his open, uninterrupted andpeaceful possession.3.Block no.29 was declared as surplus land underthe Maharashtra Agricultural Lands (Ceiling on Holdings) Act,1961 (for short the said act). The State Government tookpossession of it from sugar mills and allotted the same infavour of the defendant no.7 i.e. Maharashtra State FarmingCorporation. However, father of the plaintiff continued inpossession of the area to the extent of 1A 11 R without anyobstruction even from defendant no.7. He developed theGayran land by leveling and bunding, dug well of 40 x 40 feet,installed electric engine in the year 1968 and watered crops.He spend huge efforts and money in developing the land. Even,plaintiff’s father constructed a tenement. Till death ofplaintiff’s father in the year 2000 he continued in possession.Thereafter, plaintiff is in possession and enjoyment of theproperty. Plaintiff came to know that defendants wereintending to allot the land from block no.29 to original landlords. He made written communication as regards to hiscontinuous possession for more than 30 years. The DeputyCollector, who is responsible for allotment of surplus land 4 sa no.342.24+ca.odtmade inquiry through the Revenue Officers. Consequently, areport was submitted accepting possession of plaintiff over thesuit property. Defendant no.2, in fact proposed to makeallotment of land excluding the property in possession ofplaintiff. However, defendant no.7 issued notice dated26.5.2014 to plaintiff asking for removal of the encroachmentfrom the suit land. Plaintiff asserted his adverse possessionand consequently filed suit seeking relief of declaration ofownership based on adverse possession and perpetualinjunction against the defendants. The defendants refutedplaintiff’s claim contending that block 29 admeasuring 9 A 1Ris approved and proposed for allotment to original land lordand his legal heirs. However, it has been encroached by theplaintiff and he is liable to be evicted. Defendant no.7 alsofiled written statement raising various objections.4.Trial Court framed issues, recorded evidence ofparties and concluded that plaintiff proved his adversepossession and perfected title over the suit land. Consequently,granted relief of perpetual injunction. However, appellateCourt reversed the decree holding that possession of theplaintiff cannot be given status of adverse possession as there is 5 sa no.342.24+ca.odtno documentary evidence indicating long standing andpeaceful possession of plaintiff over the suit property.5.Mr. Tambe, learned advocate appearing for theappellant invites attention of this Court to the findingsrecorded by the Trial Court and also copies of correspondencebetween the revenue officials. He would invite attention ofthis Court to the communication dated 21.9.2013 issued by theManager of Respondent/Corporation accepting long standingpossession of the plaintiff. Similarly, he points out thecommunication dated 28.12.2013 and 3.6.2014 betweenDeputy Collector, Ahmednagar, Tahsildar, Shrirampur andCorporation to contend that long standing possession of theplaintiff has been acknowledged by the Authorities in theircorrespondence. He would therefore submit that plaintiff hasperfected title by way of adverse possession. In support of hiscontentions, he relies upon observations of the Supreme Courtof India in case of Government of Kerala and another Vs.Joseph and others reported in 2023 SCC Online SC 961.6.Per contra Mr. P.V. Barde, learned advocateappearing for respondent no.7-caveator submits that plaintiffcould not establish his hostile possession over the suit property. 6 sa no.342.24+ca.odtHe would invite attention of this Court to observations fromjudgment of Appellate Court that there is absolutely nodocument certifying possession of plaintiff over the suit land inexclusion of title of the Corporation. He would submit thatplaintiff will have to establish continuous unobstructedpossession with hostility to title of defendantno.7/Corporation. Mr. Barde would submit that large stretchesof land were put in possession of farming Corporation afterGovernment took over possession of excess land from theowner under the provisions of the said Act. Property wasmaintained by Farming Corporation with aid of few officers. Ifplaintiff had occupied certain portion of the land withoutknowledge to the Farming Corporation, in absence of hostilityto title of the plaintiff, he cannot perfect his title over the suitproperty. He would therefore supports judgment of theappellate Court. 7.Mr. Barde, in support of his submissions placesreliance on a judgment of the Supreme Court of India in caseof M. Radheshyamlal Vs. V. Sandhya and another reported in2024 AIR (SC) 1595. 7 sa no.342.24+ca.odt8.Having considered submissions advanced and aftergoing through the reasoning adopted by the fact findingCourts, it can be observed that there are conflicting findings asto the crucial issue regarding acquisition of the title by plaintiffbased on adverse possession. The Trial Court approvedplaintiff’s case regarding long standing uninterruptedpossession relying upon the correspondence between officersof respondent no.7-Corporation so also between RevenueOfficers, wherein there is stipulation accepting possession ofplaintiff over the suit property and existence of well andtenement. The Trial Court found aforesaid evidence sufficientto uphold plaintiff’s claim regarding perfecting of title by wayof adverse possession. 9.Per contra, Appellate Court discarded case ofplaintiff on the ground that there is no documentary evidencedepicting possession and enjoyment of property by theplaintiff. The official correspondence relied upon by theplaintiff is merely in form of their opinion that plaintiff must bein possession of suit property since long. 8 sa no.342.24+ca.odt10.The law on the point of adverse possession hasbeen well settled. In the present case, plaintiff is seekingdeclaration of ownership based on adverse possession. It is notthe case where plaintiff is raising a plea of adverse possessionby way of defence. In that view of the matter, observations ofthe Supreme Court in case of Annasaheb Bapusaheb Patil Vs.B.B. Patil reported in 1995 AIR SC 895 and T. Anjanappa andothers Vs. Somlaingappa and another reported in (2006) 7SCC 570 would be relevant. In case of Annasaheb Patil (supra),Supreme Court observed thus :-“13. Adverse possession means a hostile assertion i.e.a possession which is expressly or impliedly in denial oftitle of the true owner. Under Article 65, burden is onthe defendants to prove affirmatively. A person whobases his title on adverse possession must show by clearand unequivocal evidence i.e. possession was hostile tothe real owner and amounted to a denial of his title tothe property claimed. In deciding whether the acts,alleged by a person, constitute adverse possession,regard must be had to the animus of the person doingthose acts which must be ascertained from the facts andcircumstances of each case. The person who bases histitle on adverse possession, therefore, must show byclear and unequivocal evidence i.e. possession washostile to the real owner and amounted to a denial ofhis title to the property claimed.”11.In case of T. Anjanappa and others (supra), theApex Court has held as thus :-“13.It is well recognized proposition in law thatmere possession however long does not necessarilymeans that it is adverse to the true owner. Adversepossession really means the hostile possessionwhich is expressly or impliedly in denial of title of 9 sa no.342.24+ca.odtthe true owner and in order to constitute adversepossession the possession proved must be adequatein continuity, in publicity and in extent so as toshow that it is adverse to the true owner. Theclassical requirements of acquisition of title byadverse possession are that such possession indenial of the true owner's title must be peaceful,open and continuous. The possession must be openand hostile enough to be capable of being knownby the parties interested in the property, though itis not necessary that there should be evidence ofthe adverse possessor actually informing the realowner of the former's hostile action.”12.Similarly, in case of D.N. Venkatarayappa And Ors.vs. State Of Karnataka And Ors. reported in (1997) 7 SCC 567,Supreme Court of India observed as under :- “Physical fact of exclusive possession and the animuspossidendi to hold as owner in exclusion to theactual owner are the most important factors that areto be accounted in cases of this nature. Plea ofadverse possession is not a pure question of law buta blended one of fact and law. Therefore, a person,who claims adverse possession should show : (a) onwhat date he came into possession, (b) what was thenature of his possession, (c) whether the factum ofpossession was known to the other party, (d) howlong his possession has continued, and (e) hispossession was open and undisturbed. A personpleading adverse possession has no equities in hisfavour. Since he is trying to defeat the rights of thetrue owner, it is for him to clearly plead andestablish all facts necessary to establish his adversepossession.”13.Same principle of law is approved recently by theSupreme Court of India in case of M. Radheshyamlal Vs.Sandhya and another (supra). 10 sa no.342.24+ca.odt14.Taking into account aforesaid position of law, itcan be observed that plaintiff has specifically pleaded that on10.10.1955 his father occupied the property and since thencontinuously used the same as a ‘true owner’. He has alsomade certain development to make it sustainable foragriculture.15.Admittedly, there is absolutely no record tosubstantiate claim of the plaintiff that he occupied suitproperty in the year 1955. As per the practice prevailing nameof the plaintiff’s father could have been noted at least in thepossession column of the revenue record. Although, plaintiffclaims that since 1968 he is using electric motor, no evidenceto that effect is produced to depict use of the electric motor inrelation to the suit land. In case of long standing and openpossession, some traces of evidence in initial revenue recordcould have been easily gathered; but the plaintiff failed tobring any such evidence. The thrust of the plaintiff’s claim ison certain statements in communication of the RevenueOfficers. Those communications are pertaining to period from2013 onwards, wherein, there is mention that plaintiff is inpossession as encroacher, however, revenue record shows that 11 sa no.342.24+ca.odtname of the Corporation as possessor since 1965-1966. Cropinspection report indicates possession of Corporation. Thestipulations in correspondence are in nature of opinion ofofficer that probably suit land was not taken in possession bythe Corporation and same has been possessed by plaintiff’sfather. However, opinion expressed by the Revenue Officer intheir communication is not supported by any documentaryevidence. The statements in correspondence are withoutfoundation.16.The Appellate Court also considered oral evidenceof the plaintiff and witness. However, declined to rely uponstatement of plaintiff’s witness regarding his possession as saidwitness is neighbor and oral evidence is not sufficient. No faultcan be found in the approach of Appellate Court in this regard.Assuming that plaintiff’s father and thereafter plaintiff was inpossession of the land, it is difficult to accept that suchpossession was open to the notice of respondentno.7/Corporation and hostile to its title, Appellate Courtrightly observed that if plaintiff was in possession, he will haveto be treated as rank trespasser. No explanation is comingforward as to why plaintiff or his father never made any 12 sa no.342.24+ca.odtattempt to secure entries in the Government record regardingpossession and enjoyment of the suit property that has beenowned by the Corporation. The plaintiff appears to haveconcealed fact of his possession and ensured that Corporationshall not get notice of his occupation over area from ownershipof the Corporation. 17.As observed by the Supreme Court of India, it wasnecessary for the plaintiff to establish that his title was hostileto the real owner and amounted to denial of his title to theproperty. Further, it was for the plaintiff to bring on record theanimus amounting to denial of title of true owner. Mere longstanding possession would not be sufficient to make outadverse possession. The classical requirement of acquisition oftitle by adverse possession is denial of true owner’s title, whichmust be peaceful, open and continuous. Hostility must becapable enough by the parties interested in property. Plaintifffailed to bring on record any such circumstance, by which hishostility or animus against the true owner can be discerned.Since finding arrived at by the Appellate Court is based onappropriate of oral and documentary evidence, in light ofpleadings of parties so also based on correct appreciation of 13 sa no.342.24+ca.odtlaw regarding adverse possession, no substantial question oflaw arises for considerate in this second appeal. Hence, secondappeal stands dismissed. No costs. Pending civil application, ifany, also stands disposed off.18.At this stage, Mr. Rahul Tambe, learned advocateappearing for the appellant submits that, during pendency ofthe suit as well as appeal, appellant was enjoying possession ofthe suit property. He submits that the appellant/plaintiff wishto approach the Supreme Court of India, therefore, he submitsthat interim protection be extended to the possession of theplaintiff over the suit property.19.Considering the submissions advanced, it wouldbe appropriate to grant interim protection to the possession ofthe plaintiff for a period of eight (8) weeks from today. In thatview of the matter, execution of the decree be kept in abeyancefor a period of (8) Eight weeks from today. ( S. G. CHAPALGAONKAR ) Judge...aaa-