Mr. Jayant Franklin Toppo, GA v. Mr. Amit Raj Kisku, AC to GA vs P R E S E N
Case Details
1 S.A. 330 of 2018 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 330 of 2018 (Against judgment and decree dated 11.04.2018 passed by the learned Principal District Judge, East Singhbhum, Jamshedpur in Civil Appeal no. 25 of 2017) 1(a) Amresh Kumar Gupta, aged about 40 years, S/o late Lalita Prasad, 1(b) Ashwan Kumar Gupta, aged about 35 years, S/o late Lalita Prasad Resident of Kashidih, D.B. Road, P.O.- Sakchi, P.S.- Sakchi, Town – Jamshedpur, Dist.- East Singhbhum ... Plaintiffs / Appellants / Appellants Versus 1. State of Jharkhand 2. The Tate Iron and Steel Company Limited, a company incorporated under the companies Act having its work, and office at Jamshedpur, P.O.& P.S.- Bistupur, Dist.- East Singhbum ….. Defendants / Respondents / Respondents For the Appellant For the State : Mr. Prabhas Kumar, Adv. : Mr. Jayant Franklin Toppo, GA V. Mr. Amit Raj Kisku, AC to GA V. P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred against the judgment and decree dated 11.04.2018 passed by the learned Principal District Judge, East Singhbhum, Jamshedpur in Civil Appeal no. 25 of 2017 by which, learned First Appellate Court has dismissed the appeal against the judgment passed by learned trial court being the court of learned Civil Judge (Senior Division) VI, Jamshedpur, in Title Suit No. 46 of 2004 after finding that the trial court has not committed any error of law or facts.
Legal Reasoning
3. The case of the plaintiff in brief is that the plaintiff has been 2 S.A. 330 of 2018 in continuous and peaceful possession of the suit land. The plaintiff or his predecessors in interest have been in continuous and peaceful possession of the suit land since the year 1965. The possession of the plaintiff turned hostile to the real owner i.e. the State of Jharkhand and M/s TISCO Limited. The father of the plaintiff came in possession of the suit land in 1965 and constructed a dwelling house over the portion of the suit land and the land in question stands recorded in the name of Anabad Bihar Sarkar and in the remarks column, M/s TISCO Limited is shown as a lessee and possession of the plaintiff is shown over a portion of the said Khata number, another portion possessed by one Ramphal Mishra. The plaintiff has been shown to be in illegal possession since the year 1965. There were several notifications in respect of the suit land and Section 144 of CrPC proceeding was initiated in the year 1982 and the TISCO Ltd. filed a case under the provisions of the Bihar Land and Encroachment Act. In December 2013, the local officials of the State, along with the officials of TISCO Limited, threatened the plaintiff asking him to vacate the suit land and hence the plaintiff filed the suit for declaration of plaintiff’s possessory rights and title over the suit property and for confirmation of the plaintiff’s possession over the suit property. The plaintiff also prayed for the relief for permanent injunction restraining the defendants and his officers to interfere with the possession of the plaintiff over the suit land and any other relief or reliefs to which the plaintiff is entitled to. The defendant no. 2, M/s TISCO Ltd. challenged the maintainability of the suit on various technical grounds and defendant no. 2 further pleaded that, though the suit land belonged to the State of Bihar but the State of Bihar settled the land with M/s TISCO Ltd. after acquiring the same for M/s TISCO but after enactment of the Bihar Land Reforms Act, the property was again vested with the State of Bihar. In the year 1985, the lease with retrospective effect from 1956, was executed in favour of 3 S.A. 330 of 2018 M/s TISCO for a period of 40 years, which was renewed for another 30 years, hence Record of Rights shows that M/s TISCO is the lessee in respect of the suit land. The defendant no. 1 being the State of Jharkhand also challenged the maintainability of the suit on various technical grounds. 4. On the basis of the rival pleadings of the parties, learned trial court framed the following seven issues :- I. II. III. Has the plaintiff valid cause of action to bring the suit? Is the suit bad for Non-Joinder and Mis-Joinder of parties? Is notice u/s 80 of the CPC being properly served prior to filing of the suit? IV. Has the plaintiff acquired right and title based on his adverse possession over the suit land? V. Whether the plaintiff’s adverse possession is open, undisputed VI. and is in continuity to the hostility to the defendant? Is the plaintiff entitled to get the relief as sought for in the plaint? VII. To what other relief/ reliefs the plaintiff is entitled to under law and equity? 5. In support of his case, the plaintiff examined three witnesses and proved the documents which have been marked Exhibit 1 to 6 whereas from the side of the defendant no. 1, no witness was examined and from the side of the defendant no. 2, one witness was examined but the defendants did not produce any documentary evidence. 6. Learned trial court first took up issue nos. IV, V and VI together and after considering the evidence in the record, learned trial court took note of the fact that PW 1 could not say the mauza of the suit land nor he could say the plot number of the land situated or the boundary of the suit land. The PW2 could not say the survey khata number, plot number belongs to which survey nor he could say the Khata no. 245 and what is their area and boundary. Khata no. 245 is in the name of Lalita Prasad and PW2 could not say to whom, the road which is situated in the north and south of the place of occurrence land, belongs. He does not know whether the suit land, was the land released to Tata Company. He cannot say how the plaintiff came in possession of the suit land. He does not know why the suit has been filed. PW3- Lalita Prasad is the plaintiff. He has 4 S.A. 330 of 2018 stated that he is claiming the land, belongs to the Government on the basis of his possession but the personnel of TISCO company told the plaintiff to vacate the land as the said land has been leased to TISCO Company, hence, the TISCO company has been impleaded as party. In the khatiyan, the land has been shown as leased to TISCO Company. The personnel of the Circle Office told the plaintiff to occupy the suit land hence, they occupied the suit land. He does not know who occupied the suit land. PW3 - the plaintiff has seen the Khatian but he does not know under which plot the suit land is situated in the new survey record. Learned trial court considered that though the plaintiff is claiming the right, title and interest over the suit land on the basis of adverse possession but there are many contradictions in the deposition of the witnesses examined by the plaintiff and the plaintiff could not produce any title documents in respect of his claim of title, nor he could say on which date, his ancestors occupied the suit land for the first time and when their possession became hostile. A valid title cannot be conferred upon the plaintiff on the basis of illegal possession and thus considering the materials in the record, came to the conclusion that the plaintiff has no right, title or interest in respect of the suit land nor any right, title or interest has accrued to the plaintiff by way of adverse possession. The possession of the ancestors of the plaintiff is not hostile against the defendants, hence there is no irreparable injury caused to the plaintiff, hence no permanent injunction was granted. The plaintiff failed to establish his claim. The suit is barred by the provisions of the CNT Act and Bihar Lands and Encroachment Act and is also barred by law of limitation and decided the issue nos. IV, V and VI against the plaintiff. 7. Learned trial court next took up issue nos. I, II, III and VII together and in view of the finding in respect of the issue, nos. IV, V and VI, came to the conclusion that the plaintiff has no cause of action for filing of the suit. The plaintiff is 5 S.A. 330 of 2018 not entitled to get any other relief. The suit is not barred by non-joinder of necessary parties and the notice has been validly served upon defendants by the plaintiff before filing of the suit and decided issue nos. II and III in favour of this plaintiff and decided the issue no. I and VII against him and dismissed the suit on contest. 8. Being aggrieved by the judgment and decree passed by learned trial court, the plaintiff filed Civil Appeal No. 25 of 2017 and learned First Appellate Court observed after considering the rival submissions made before it, that the point for determination revolves around the question of adverse possession. Relying upon the judgment of the Hon’ble Supreme Court of India in the case of Gurdwara Sahib v. Gram Panchayat Village Sirthala and Another reported in (2014) 1 SCC 669, wherein it was observed by the Hon’ble Supreme Court of India that the possession cannot be used as sword, though it can be used as shield, is one of the reasons which goes against the plaintiff for filing of the suit based on adverse possession. Learned First Appellate Court also considered that for proving the case of adverse possession, the plaintiff has to establish that since when the possession became adverse and against whom the possession became adverse and the date of the adverse possession, is very significant as from which date the possession of the plaintiff has become hostile to the real owner and besides that, it should be in continuation and uninterrupted and in view of the judgment of Gurdwara Sahib v. Gram Panchayat Village Sirthala and Another (supra) learned First Appellate Court did not enter into the aspect of discussing the evidence, as to from which date, the plaintiff was in adverse possession or who was the real owner and whether the possession of the plaintiff is continuous and uninterrupted. Learned First Appellate Court considered that nowhere in the relief it is mentioned that the plaintiff seeks injunction against the forceful dispossession by the defendants. In respect of the prayer for permanent 6 S.A. 330 of 2018 injunction learned First Appellate Court observed that, since admittedly, the plaintiff is in lawful possession, it cannot restrain the lawful owner from interfering with his possession but such interference by the lawful owner has to be in accordance with the procedures established by the law and did not feel it proper to grant the relief of permanent injunction and went on to dismiss the appeal.
Legal Reasoning
9. Mr. Prabhas Kumar, learned counsel for the appellants submits that the learned First Appellate Court has committed grave error by not discussing the evidence in the record in detail to arrive at the conclusion that the plaintiff has perfected his title by adverse possession. 10. Relying upon the judgment of the Hon’ble Supreme Court of India, in the case of Ravinder Kaur Grewal & Others vs. Manjit Kaur & Others reported in (2019) 8 SCC 729, it is submitted by learned counsel for the appellants that the judgment of the Hon’ble Supreme Court of India, in the case of Gurdwara Sahib v. Gram Panchayat Village Sirthala and Another (supra), has since been overruled and now a plaintiff can file a suit for title on the basis of adverse possession hence, the judgment passed by the learned First Appellate Court be set aside and the suit be decreed in favour of the plaintiff. 11. It is further submitted that both learned courts below failed to appreciate the evidence in the record in their proper perspective and referred to the judgments out of context. It is further submitted that learned courts below committed an error by not considering the final Khatiyan, marked Exhibit 5, published in the year 1965, from which it is evident that the plaintiff is in possession of the land for more than 30 years hence, the impugned judgment and decree being not sustainable in law be set aside. 12. Mr. Amit Raj Kisku, learned AC to GA V, appearing on behalf of the respondent no. 1 submits that true it is that the judgment of the Hon’ble Supreme court of India in the case of the Gurdwara Sahib v. Gram Panchayat Village Sirthala and 7 S.A. 330 of 2018 Another (supra) has been over-ruled in the case of Ravinder Kaur Grewal & Others vs. Manjit Kaur & Others (supra) but this is the case, where the plaintiff has neither pleaded the date on which the possession of the plaintiff or his ancestors, has become adverse. The plaintiff does not know as to who first came in possession of the suit land as there is neither any pleading whereas the witness - PW3-who is none other than the plaintiff himself, has stated that he does not know who first came over the suit land. Thus there is no material in the record either by way of pleading or by evidence is to from which date, and by whom the continuity of the possession over the suit land is claimed by the plaintiff. Mr. Kisku further submits that since the plaintiff does not know who and when he or his ancestors, came over the suit land, so claim of adverse possession, on the basis of the continuous and interrupted possession of the plaintiff is a hollow one and without any substance, hence, it is not a case for remand because there being absolutely neither any pleading nor any evidence in the record, regarding the adverse possession and in the prayer also, the plaintiff having not made any specific prayer for confirmation of his title by way of adverse possession. It is then submitted that there is absolutely no merit in the suit of the plaintiff, which has rightly been dismissed by learned trial court and also the learned First Appellate Court has rightly dismissed the appeal. It is then submitted that though the learned First Appellate Court, elaborately, has not discussed the evidence in the record but certainly learned First Appellate Court has concurred with the findings of the facts of learned trial court and has not reversed the same. It is lastly, submitted that this appeal being without any merit be dismissed. 13. Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that adverse possession requires all the three classic requirements to co-exist at the same time, namely, adequate in continuity, adequate in publicity and 8 S.A. 330 of 2018 adverse to a competitor, in denial of title and his knowledge moreover Animus possidendi under hostile colour of title is also required; as has been observed by the Hon’ble Supreme Court of India in the case of Ravinder Kaur Grewal & Others vs. Manjit Kaur & Others reported in (2019) 8 SCC 729 paragraph-60 of which reads as under:- “60. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, S.A.No.16 of 1998 (R) 9 knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser's long possession is not synonymous with adverse possession. Trespasser's possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and large the concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession.” (Emphasis supplied) 14. It is also a settled principle of law that a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed; as has been held by the Hon’ble Supreme Court of India in the case of Karnataka Board of Wakf v. Government. of India & Others reported in (2004) 10 SCC 779, paragraph no.11 of which reads as under:- “11. Xxxxx Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. 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 his adverse possession.” 9 S.A. 330 of 2018 15. Now coming to the facts of the case, there is absolutely no pleading of the plaintiff as to on which date, the plaintiff or any of his ancestors came in possession. The plaintiff who was examined as PW3, even could not say the name of his ancestor, who first came into the possession of the suit land, as claimed by the plaintiff and the plaintiff cannot say, what was the nature of his or his ancestor’s possession. Further, though on the one hand the plaintiff says that State of Bihar/ Jharkhand was the owner of the land and on the other hand, the plaintiff, who has been examined as PW3, himself says that the personnel of the Circle Office, inducted him to the suit land, so in view of this admission that the real owner has inducted him to the suit land, the possession, if any, of the plaintiff over the suit land, cannot be termed as adverse but at best, it can be termed as permissive possession and there is neither any pleading nor any evidence that the possession of the plaintiff over the suit land was open and undisturbed. Under such circumstances, even if the learned First Appellate Court has not discussed in detail the evidence in the record, in view of the judgment in the case of Gurdwara Sahib v. Gram Panchayat Village Sirthala and Another (supra) which was in force, still in the absence of basic pleadings of the ingredients of the adverse possession, this court considers that remanding the case to learned First Appellate Court, will be a futile exercise and it would unnecessarily drag on the litigation. 16. Accordingly, this court after considering the materials and evidence in the record is of the considered view that as there is no basic pleading as required in order to establish an adverse possession by the plaintiff in the plaint, as already discussed above in the judgment, hence, this court is of the considered view that there is no merit in this appeal nor any substantial question of law is involved in this appeal. 17. Accordingly, this appeal being without any merit is dismissed but in the circumstances, without any cost. 18. Let a copy of this Judgment be sent back to the Court 10 S.A. 330 of 2018 concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 19th August, 2023. Smita /AFR