Back
JHARKHAND HIGH COURT
Baijnath Mahto and Ors. – Plaintiffs
versus
Kishori Mahto and Ors. – Defendants
S.A. No.90 of 2000
Decided on 29.7.2024
Adverse Possession – Ingredients – A person who claims adverse possession should show, (a) on what date he came into possession, (b) what was nature of his possession, (c) whether factum of possession was known to other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed – It is a fundamental principle of civil procedure that a court cannot make out a third case which is not pleaded by parties – Defendants have not pleaded any of ingredients of adverse possession nor it is case of defendants that they have perfected their title by way of adverse possession – As there is absolutely no pleading of defendant regarding adverse possession nor defendant has pleaded essential ingredients of adverse possession, First Appellate Court has erred in law and committed perversity in holding that defendants have perfected their title over suit land – Judgment and decree passed by Sub-Judge Title Suit restored.(Paras 20 to 25)
Result: Appeal allowed.
JUDGMENT
Anil Kumar Choudhary, J.—
By the Court:- Heard the learned counsel for the appellants.
2. This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred against the judgment of reversal dated 08.09.2000 passed by learned Additional District Judge, II, Bokaro at Chas in Title Appeal no. 08 of 1999 whereby and where under, learned First Appellate Court has reversed and set aside the judgment and decree dated 07.11.1998 passed by learned Sub-Judge II, Bermo at Tenughat in Title suit No. 5 of 1996 whereby and where under learned trial court has decreed the suit of the plaintiff on contest with costs and allowed the appeal.
3. The brief facts of the case is that the plaintiff filed Title Suit no. 5 of 1996 with a prayer for declaration that the suit land described in Schedule A of the plaint is raiyati land of the plaintiff by virtue of settlement made by Ramgarh Raj Estate through Fard Amin Report dated 25.10.1938 and Hukumnama dated 28.10.1938. A further declaration was made that the final order passed by Executive Magistrate, Bermo at Tenughat in Case no. 151 of 1988 under Section 145 of CrPC which was antedated to 20.12.1994 is illegal, void and without any merit, inoperative and not binding upon the plaintiff. The plaintiff also prayed for declaration of the possession of the plaintiff over the suit land and confirmation of the same and in case, it is found out that the plaintiff has been dispossessed from the suit land, then recovery of possession. The plaintiff also prayed for injunction and other consequential reliefs.
4. The case of the plaintiff in brief is that the suit schedule A land of the pliant, stood recorded in last Cadastral Survey as Gairmajurwa Khas land of the landlord. The plaintiff brought schedule A suit land into the state of cultivation and approached the ex-landlord, Ramgarh Rajya for Raiyati settlement. On the basis of the reclamation of the land by the plaintiff, the ex-landlord made raiyati settlement of 41 Decimals of land under Khata no. 1, plot no. 487 in village – Khathghara, P.S.- Gomia, Dist. –Bokaro with the plaintiff on 28.10.1938 and the plaintiff paid rent and was accepted as Raiyat by the landlord. After vesting of the Zamindari, the plaintiff continued to pay rent to the State of Bihar and in the Tenant’s Ledger Register II, the name of the plaintiff was entered. All of sudden on 21.12.1988, the defendants armed with deadly weapons came over the suit land and tried to cut foundation for constructing a boundary wall over the land of the plaintiff by engaging a large number of labourers over the suit land. The plaintiff protested and filed a petition under Section 144 of CrPC in the court of learned SDM, Bermo at Tenughat. Learned SDM, Bermo at Tenughat converted the proceeding under 144 of CrPC into 145 of CrPC. Learned Magistrate; Bermo at Tenughat adjourned the Case on 14.12.1994 to 20.12.1994. The plaintiff lost faith on Sri K.K.Roy, the Executive Magistrate and filed the petition under Section 411 of CrPC for transfer of the said proceeding under Section 145 of CrPC. The application was allowed on 22.12.1994 but the said Sri K.K.Roy, passed the final order and antedated the order to show that the same has been passed on 20.12.1994 declaring the possession of the plaintiff over the land in the suit, hence, the plaintiff filed the suit with the said prayer.
5. In their written statement, the defendant challenged the maintainability of the suit on various technical grounds besides that it was pleaded that entire claim of the plaintiff is false. The plaintiff never came in possession of the suit land and according to the defendant, one Bolai Mahato and Samar Mahto were the settled raiyat of the village Khathghara having reclaimed the land and the defendant no. 1 to 3 are the heirs of Bolai Mahato and Samar Mahto and after the death of Bolai Mahato and Samar Mahto, the defendant no. 1 to 3 came and continued their possession over the suit land.
6. On the
Adverse Possession – Necessary ingredients to constitute adverse possession must be proved in order to perfect title over land.
The main legal point established in the judgment is the requirement to plead and prove essential facts to establish adverse possession, including continuity, publicity, and hostility to the true owne....
The plaintiff must prove their title in a private suit, and concurrent findings of fact by lower courts are not to be interfered with unless perverse.
Adverse Possession – When a possession is sought on the ground of Sada-deed of Dar Raiyat, law of adverse possession is not available.
The burden of proof lies on the party asserting ownership or adverse possession, and mere entries in khatian records do not suffice to establish title without supporting evidence.
A claim of adverse possession cannot be sustained if possession stems from an agreement to sell, which legally acknowledges the owner's title.
The main legal point established is that the burden of proof lies with the plaintiff to show adverse possession, and failure to do so can result in the dismissal of the claim.
Adverse possession claims require acknowledgment of the original owner's title; mere long-term possession without proof of acknowledgment negates the claim.
The claim of title by adverse possession cannot be raised as an alternative plea of occupancy rayat, and the requirements for the claim of title as an occupancy rayat and that of adverse possession a....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
