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2016 Supreme(MP) 785
IN THE HIGH COURT OF MADHYA PRADESH
Ashok Kumar Joshi, J.
Prahilad Kaushwaha – Appellant
Versus
Pushpa Devi and others – Respondents
Second Appeal No. 849 of 2015
Decided On : 21-09-2016
For the Appellant :Shri. Manoj Kushwaha, Advocate.
For the Respondent:Shri. G.S. Ahluwalia, Advocate.
Adverse possession cannot be used as a basis for filing a title suit, and findings of fact based on evidence are not subject to interference at the stage of second appeal.
Headnote:
Adverse Possession - Disputed Agricultural Lands - M.P. Land Revenue Code - Public Trust Act - Gurdwara Sahib v. Gram Panchayat
Fact of the Case:
The plaintiff claimed adverse possession of disputed agricultural lands and filed a suit for declaration of title and perpetual injunction. The defendants denied the adverse possession and asserted their ownership through a registered Tabadalanama and mutation in revenue records.
Finding of the Court:
The trial court and first appellate court found that the plaintiff failed to prove adverse possession and was not entitled to perpetual injunction. The evidence of the defendants' witnesses was considered more reliable due to support from revenue documents.
Issues: Adverse possession, title declaration, perpetual injunction, possession interference, limitation, valuation, special damages
Ratio Decidendi: The courts held that a person claiming property on the basis of adverse possession cannot file a civil suit for declaration, as the defense of adverse possession can only be used as a shield in a suit filed by the other party, not as a sword. The findings of fact based on evidence could not be interfered with at the stage of second appeal under Section 100 of the CPC.
Final Decision: The appeal was dismissed for lack of merit.
Ashok Kumar Joshi, J.
The appellant/plaintiff has preferred this appeal under Section 100 of the Civil Procedure Code being aggrieved by the judgment and decree dated 8.7.2015 passed by the Second Additional District Judge, Gadarwara, District Narsinghpur in regular Civil Appeal No.55-A/2014 affirming the judgment and decree dated 26.8.2013 passed by the Civil Judge Class-I, Gadarwara, District Narsinghpur in Civil Suit no.22-A/2009, whereby the suit of the appellant filed against the respondents for declaration of his title with respect to the disputed agricultural lands on the basis of adverse possession and perpetual injunction was dismissed.
2. Admittedly, the disputed lands bearing Survey Nos.563/1, 563/2, 563/3, 563/4, 563/5 and 563/6 of village Chirahkala, Tehsil Gadarwara are recorded in the revenue record in the name of the respondents No.1 to 6.
3. Plaintiff Prahlad Kushwaha filed a suit on pleadings that in the month of June, 1995, he forcefully possessed the suit lands, claimed his title and this fact was in the knowledge of the defendants. Previously, the disputed lands were barren and full of stones. The lands were improved by the appellant who made them capable for agriculture. From above mentioned time, the plaintiff is in peaceful possession of the disputed lands and is doing cultivation. On the basis of the suit lands being recorded in the revenue papers in the name of the defendants No.1 to 6, whose near relative being a T.I. in police department, they tried to dispossess the plaintiff, but the plaintiff could not be dispossessed by the defendants and the plaintiff has perfected his title on the basis of adverse possession. The plaintiff had made cave of Goddess Mahakali in the land bearing Survey No.563/3 after digging it. The plaintiff filed an application before the revenue authorities for recording of his possession in the revenue papers, but the Tehsildar had dismissed his application on 11.8.2008 holding that under relevant provision of the M.P. Land Revenue Code, the possession could not be recorded. After above mentioned order of the Tehsildar, the defendants are trying to illegally dispossess him after making conspiracy with revenue authorities. Thus, the reliefs of declaration of title on the basis of adverse possession and perpetual injunction were prayed by the plaintiff in the plaint.
4. The defendants Nos.1 to 6 denied all the adverse pleadings of the plaintiff in their joint written statement and pleaded that the plaintiff had never forcefully possessed the disputed lands and had never cultivated it. Previously, the suit lands were owned by deity of Shri Deo Narayan Laxmi Mandir, Gangai, which is a registered public trust having trustees. In compliance to an order passed by the Board of Revenue, Gwalior dated 30.6.1997, the above mentioned suit lands were exchanged by the trust with the lands of defendants Nos.1 to 6 and their near relative Devendra Kumar Upadhyaya through a registered Tabadalanama dated 22.2.2002 and the concerned defendants are in possession of the exchanged lands including disputed lands. After revenue proceedings, the disputed lands have been mutated after partition in the names of the concerned defendants. Previously a writ petition filed by the plaintiff has been dismissed by the High Court holding that he is not having any independent title. An application filed under sections 26 and 27 of the Public Trust Act by the plaintiff has also been dismissed on 26.11.2007 by the Additional District Judge, Gadarwara. Actually the plaintiff is trying to capture the lands having title and possession of the defendants and filed suit is also a step in that direction. The defendants have permitted the plaintiff for digging a cave of Goddess Mahakali being religious persons. The plaintiff is not having any title or possession over the disputed lands, thus dismissal of the suit was prayed.
5. No any written statement was filed by the defendant No.7/State of M.P. in the trial Court
