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1999 Supreme(MP) 930
IN THE HIGH COURT OF MADHYA PRADESH (JABALPUR BENCH)
S.P. Khare, J.
Shankerlal and Ors.
Vs.
Smt. Pankunwar Bai and Ors.
Second Appeal No. 3/92
Decided On: 10.12.1999
For Appellant/Petitioner/Plaintiff: L.S. Baghel, Sr. Adv. and G.S. Baghel, Adv.
For Respondents/Defendant: R.D. Hundikar and M. Shrivastava, Advs.
A person claiming adverse possession must establish when the adverse possession commenced and the nature of such possession. The burden is on the defendant to prove affirmatively that he is in possession in hostile assertion, i.e., a possession which is expressly or impliedly in denial of the title of the true owner. The transfer of land from an occupant to a person who is not entitled to acquire it under Section 188 of the Bhopal State Land Revenue Act, 1932, is invalid without the Collector's sanction.
Headnote:
ADVERSE POSSESSION - BHOPAL STATE LAND REVENUE ACT, 1932 - SECTION 188 - ORAL SALE-DEED - POSSESSION - TRANSFER OF LAND - ADVERSE POSSESSION - BURDEN OF PROOF - LIMITATION - ADVERSE POSSESSION OF AGRICULTURAL HOLDING BY NON-AGRICULTURIST - INTERPRETATION OF 'TRANSFER' - EXTINCTION OF OWNERSHIP - SANCTION OF COLLECTOR - CIRCUITOUS ROUTE - LEGALITY.
Fact of the Case:
Plaintiff Ratanlal claimed to have orally purchased 25.60 acres of land from Kunwarji in 1940 and perfected his title by adverse possession. The trial court dismissed his suit, but the first appellate court reversed the finding and held that the plaintiff had acquired title by adverse possession.
Finding of the Court:
The second appeal court held that the first appellate court's finding on adverse possession was perverse, unreasonable, and unjust. The court found that the plaintiff's possession from 1942 to 1950 was recorded as 'shikmi' (permissive) and could not be adverse. The possession from 1950 to 1959 was also less than the statutory period of twelve years. Additionally, the transfer of land from Kunwarji to the plaintiff was not sanctioned by the Collector as required under Section 188 of the Bhopal State Land Revenue Act, 1932.
Issues: 1. Whether the plaintiff acquired title to the land by adverse possession. 2. Whether the transfer of land from Kunwarji to the plaintiff was valid without the Collector's sanction under Section 188 of the Bhopal State Land Revenue Act, 1932.
Ratio Decidendi: 1. The plaintiff failed to establish adverse possession for the statutory period of twelve years. His possession from 1942 to 1950 was recorded as 'shikmi' (permissive) and could not be adverse. The possession from 1950 to 1959 was also less than the statutory period. 2. Section 188 of the Bhopal State Land Revenue Act, 1932, requires the Collector's sanction for the permanent transfer of land to a person who is not an agriculturist by profession. The plaintiff was not an agriculturist, and no sanction was obtained. The transfer of land without the Collector's sanction was invalid.
Final Decision: The second appeal court set aside the judgment and decree of the first appellate court and restored the judgment and decree of the trial court, dismissing the plaintiff's suit for possession and mesne-profits.
S.P. Khare, J.
1. This is defendants' second appeal under Section 100 C.P.C.. The following substantial questions of law were formulated by Order dated 3-7-1992 at the time of admission of this appeal:--
(1) Whether on the basis of documents Ex. P-17 and Ex. P-18, the lower appellate Court was right in holding that the suit land was purchased by the appellants in the year 1940 from one Kunwarji, the predecessor-in-title and the father of respondent No. 1 by the alleged oral sale-deed.
(2) Whether on the evidence brought on record the lower appellate Court was right in holding that the appellants were in possession of the suit land eversince the date of the alleged oral sale-deed and had perfected their title by adverse possession.
2. The facts relevant for the decision of the questions referred above are that Kunwarji was Khatedar of 25.60 acres of land of Khasra Nos. 524, 528, 529, 530, 531, 532, 533, 534, 535, 539, 540, 541, 543, 544 and 546 of village Badodia Gadri, Tehsil Ashta, District Sehore. Plaintiff Ratanlal claimed that (a) he had orally purchased these lands from Kunwarji for Rs. 100/- on 13-5-1940 and (b) he has perfected his title to these lands by adverse possession by remaining in actual possession from 1940 to 1962. The suit has been filed in the year 1970. The trial Court negatived his claim on both the counts and dismissed his suit for possession. In appeal the first appellate Court affirmed the finding on the first point. The oral sale was not upheld firstly because there was no registered sale-deed and secondly the permission of the Collector for transfer of these lands as per Section 188 of the Bhopal State Land Revenue Act, 1932 was not obtained. This Section provided that permanent transfer of the lands could be effected to a person who was riot an agriculturist by profession with the sanction of the Collector and no such sanction was obtained. The plaintiff was not the holder of any agricultural land at that time. He was not Khatedar. Therefore, the plaintiffs case on the basis of oral sale could not succeed.
3. The first appellate Court reversed the finding of the trial Court on the second point and held that the plaintiff has acquired title to the lands by adverse possession. The question is whether the view taken by the first appellate Court is correct.
4. In the plaint it has been stated that there was oral sale by Kunwarji. Plaintiff Ratanlal (PW 1) has deposed in para 1 that there was a written sale-deed. But no such sale-deed has been produced. The first document relied upon by the plaintiff is the statement which is said to have been made by Kunwarji on 14-5-1940 before the Tehsildar in Revenue Case No. 188/460 of 1940. That is marked as Ex. P-17. Its Hindi translation is Ex. P-17-A. It has been stated by him that he is transferring eqUrfdy dj jgk gS the lands for Rs. 100/-out of which he has received Rs. 50/- and the remaining amount of Rs. 50/- is due. The first appellate Court has not referred to the statement of plaintiff Ratanlal on the same date i.e., 14-5-1940 in the same case. That is marked as Ex. D-6. Its Hindi translation is Ex. D. 6-A. It has been stated by him that Kunwarji is transferring eqUrfdy dj jgk gS the land from Fasli 48 for which he has paid Rs. 50/- and he would further pay the remaining amount of Rs. 50/- on receipt of the permission eUtwjh ds ckn vnk d:xk- The plaintiff has further stated therein that he was not holding any agricultural land at that time. It is clear from a reading of these statements that the revenue case in which these statements were made was for grant of permission to sell the land. In this case the Order passed by the Tehsildar is dated 22-10-1940 (Ex. P-18-A) and in this Order also it is mentioned that Kunwarji wants to transfer the land to Ratanlal eqUrfdy dj jgk gS. The Tehsildar in the concluding part of the Order refused to grant the permission because the land revenue was outstanding against Kunwarji.
5. The documents referred above go to s
