FIRST APPEAL No. 618 OF 1995 Against the judgment and decree dated 30.11.1994 passed by Sri A.R. Ansari, Sub Judge – IV, Nalanda in Title Suit No. 56 of 1991/ 41 of 1994. ARJUN PRASAD & ORS ………. Plaintiffs/Appellants Versus THE STATE OF BIHAR & ORS ……… Defendants/Respondents ******** For the Appellants : Mr. Vijay Kumar Bhagat, Advocate For the Respondent No.1 : Mr. Manishdhari Singh, Advocate (A.C. to G.P. -3) For the respondent No.3 to 7 : Mr. Amalesh Kumar Varma, Advocate ________________________________________________________ Dated : 20th day of January, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. The plaintiffs have filed this first appeal against the judgment and decree dated 30.11.1994 passed by Sri A.R. Ansari, the learned sub Judge – IV, Nalanda in Title Suit No. 56 of 1991/ 41 of 1994 dismissing the plaintiffs-appellants‟ suit. 2. The plaintiffs-appellants filed the aforesaid suit for declaration of title and confirmation of possession over the suit land fully described in Schedule 1 of the plaint and in the alternative prayed for recovery of possession. The plaintiffs also prayed for permanent injunction restraining the defendants from dispossessing the plaintiffs from his land and house aforesaid. The plaintiffs claimed the aforesaid Mungeshwar Sahoo, J. 2 relief alleging that the subject matter of the suit i.e. 9 decimal out of plot No. 960 under Khata No. 408 was originally recorded in cadastral survey as „Kaisre Hind‟. After the survey operation the grandfather of the plaintiffs constructed a Kachcha house thereon. He was a porter working in B.B. Light Railway, Bihar Sharif and the said grandfather namely Maltudas died leaving behind his only son Munshi Das who is father of the plaintiffs who came in possession of the house and land as owner thereof. 3. The further case of the plaintiffs is that the father of the plaintiffs was a labourer in the said railway station and constructed a Pacca house after demolishing the Kachcha house more than 50 years ago. The grandfather of the plaintiffs had planted a Neem tree and also installed a private deity of Mahavir Ji. The land in suit and the house is coming in possession of plaintiffs since the time of their grandfather in assertion of title and possession in the knowledge of all concerned including the official of the Government and, therefore, the grandfather of the plaintiffs acquired title by law of adverse possession and that status is still continuing. 144 Cr.P.C. proceeding was started in 1988 and plaintiffs‟ possession was found exclusive. The defendants had no jurisdiction to initiate a proceeding under the provision of Bihar Public Land Encroachment Act which is still pending. The same is without right, title and interest as the defendants lost their title by law of adverse possession. The plaintiffs‟ further claim that they are member of schedule caste and have no other house to live. 4. After notice the defendants appeared and filed a contesting written statement. Besides taking various legal pleas mainly it was contended that the suit land was not recorded as „Kaisre Hind‟ but in fact it was recorded in the name of District Board in cadastral survey record of right and the Board was in possession. The Neem tree has 3 already dried. The claim of the plaintiffs that their grandfather constructed a house as he was a porter was denied. The possession of grandfather was also denied. Likewise the possession of the father of the plaintiffs and the plaintiffs‟ possession were also denied. According to the defendants further case is that the Board which run the B.B. Light Railway till 1960-61 was in possession of the same. When Munshi Das encroached upon the suit land without permission of the District Board Encroachment Case No.142 of 1976-77 was started against him which is still pending for disposal but during the pendency of the said proceeding the suit has been filed. 5. On the basis of the aforesaid pleadings, the learned court below framed as many as seven issues as follows : “1. Is the suit as framed maintainable ? 2. Have the plaintiffs got any cause of action for the suit ? 3. Is the suit barred by law of limitation ? 4. Have the plaintiffs got any title in the suit land and are entitled for confirmation of possession or in the alternative for recovery of possession ? 5. Are the plaintiffs entitled for the injunction against the defendant No.2. 6. Are the plaintiffs entitled for the relief claimed for ? 7. To what other relief or reliefs if any to which the plaintiffs are entitled to ?” 6. After trial the learned court below while deciding issue No.4 came to the conclusion that the plaintiffs have got no title in the suit land nor they are entitled to remain in possession on the suit land and therefore, they are not entitled for confirmation of possession. The learned court below also found that the suit is not maintainable as the jurisdiction of civil court is barred by provisions of Bihar Land Encroachment Act. While deciding issue No.5 the learned trial court 4 held that the plaintiffs have failed to establish their case and claim and therefore, they are not entitled to get order of injunction. Accordingly, the suit was dismissed on contest with costs. 7. The learned counsel Mr. Bhagat appearing on behalf of appellants submitted that the learned court below has wrongly dismissed the plaintiffs‟ suit as there were overwhelming evidence on record to show that the plaintiffs‟ grandfather and thereafter plaintiffs‟ father and then the plaintiffs are coming in possession of the suit land after constructing house but the learned court below has not properly appreciated the evidence. The learned counsel further submitted that the learned court below could not have dismissed the plaintiffs‟ suit by drawing adverse inference against the plaintiffs for non-examination of plaintiffs as witness. The learned counsel further submitted that the requirement of law is that the possession must be open and without any attempt of concealment and it is not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner. The learned counsel further submitted that the learned court below has wrongly held that the plaintiffs‟ suit is barred under the provision of Bihar Public Land Encroachment Act. In support of his contentions the learned counsel relied upon (1) AIR 1981 SC 707 Kshitish Chandra Bose Vs. Commissioner of Ranchi (2) AIR 1982 SC 1081 Govt. of Andhra Pradesh Vs. Thummala Krishna Rao and another. On the basis of these decisions the learned counsel submitted that the plaintiffs were only required to prove their possession for more than 30 years which have been proved here in this case and therefore, the plaintiffs‟ suit is liable to be decreed. 8. On the other hand the learned counsel Mr. Manishdhari Singh appearing on behalf of the respondent No.1 submitted that the 5 appellants are nothing but land grabber and are claiming title over the public property on the basis of adverse possession. According to the learned counsel for acquisition of title by adverse possession the plaintiffs must prove their hostile possession to constitute adverse possession. Mere possession howsoever long, unless there is intention to dispossess the true owner, it will never constitute adverse possession. The learned counsel further submitted that in paragraph 4 of the plaint the plaintiffs‟ case is that they came in possession as owner thereof and therefore there is no question of acquiring title by adverse possession as plea on title and adverse possession are mutually inconsistent. The learned counsel further submitted that because none of the plaintiffs examined themselves as witness in support of their case therefore, the learned court below has rightly drawn adverse inference. 9. In view of the above rival contention of the parties, the points arises for consideration is, as to whether plaintiffs are entitled for declaration of title on the basis of acquisition of title by adverse possession and for confirmation of possession and in the alternative for recovery of possession and whether the impugned judgment and decree are sustainable in the eye of law. 10. Admittedly, in this case none of the plaintiffs have been examined as witnesses. No doubt plaintiffs have produced four witnesses, out of them PW 1 is a formal witness, PW 2, 3 and 4 have only stated that the plaintiffs are coming in possession of the suit land after constructing a house thereon. From perusal of their evidence it appears that they have deposed only in support of the possession of plaintiffs for more than 50 years. Except these evidences there is nothing on record in favour of the plaintiff. The learned counsel laboured much on these evidences and submitted that their long 6 possession on the suit property for more than 50 years will constitute adverse possession. As stated above he relied upon the decision of the Hon‟ble Supreme Court i.e. the case of Kshitij Chandra Bose (Supra) and case of Govt. of Andhra Pradesh (Supra). 11. So far AIR 1981 SC 707 (Supra) is concerned it appears that there was concurrent finding of the trial court as well as the first appellate court regarding acquisition of title of the plaintiffs. The plaintiffs were claiming title on the basis of the „Hukumnama‟ granted to them by the ex-landlord on 17.4.1912 which was Ext. 18 in the case. The Hon‟ble High Court in second appeal set aside the judgment and remanded the matter. Therefore, in that case on the basis of the evidence the plaintiffs‟ case for title was found in favour of the plaintiffs concurrently. Therefore, that case is not helpful to the appellants. Here the case of the plaintiffs is based on only long possession and nothing else. 12. So far AIR 1982 SC 1081 (Supra) is concerned it was held that summary procedure cannot be resorted to in cases where complicated question of title arises for decision. Therefore, this decision is not on the point of acquisition of title by adverse possession. Therefore, it is also not helpful to the appellants. 13. From perusal of the plaint at paragraph 4 it appears that it has been specifically pleaded by the plaintiffs that the grandfather of the plaintiff died leaving behind his only son late Munshi Das who came in possession of the house and land as owner thereof. His father was also occupying the land and the house as absolute owner thereof. At paragraph 10 also it is pleaded that father and grandfather were in possession in assertion of absolute title and possession. It may be mentioned here that adverse possession presuppose that the title is on somebody else but here the plaintiffs are claiming possession as true 7 owner thereof. The Hon‟ble Supreme Court in the case of Karnataka Board of Wakf Vs. Government of India 2004 (3) PLJR 245 SC has held that a person pleading adverse possession has no equities in his favour and pleas on title and adverse possession are mutually inconsistent and later does not begin to operate until the former is renounced. In anther decision reported in AIR 1995 SC 895 Annasaheb Bapusaheb Patil Vs. Balwant @ Balasaheb Babusaheb Patil, the Hon‟ble Supreme Court at paragraph 12 has held that adverse possession means a hostile assertion i.e. a possession which is expressly or impliedly in denial to title of the true owner. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertain from the facts and circumstances of each case. At paragraph 3 in that very judgment the Hon‟ble Supreme Court has held where possession could be referred to a lawful title it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another‟s title. In the present case at our hand as discussed above the only case pleaded by the plaintiff is that their grandfather and after him their father and then the plaintiffs are coming as true owner thereof. This is the evidence adduced by the plaintiffs i.e. PW 2 to PW 4. 14. In 2007 (6) SCC 59 P.T. Munichikkanna Reddy Vs. Revamma the Hon‟ble supreme Court considering various decisions earlier pronounced on the question of adverse possession has held that adverse possession is a right which comes into play not just because someone losses his right to reclaim the property out of continuous and 8 willful neglect but also on account of possessors positive intent to dispossess. Therefore, it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor, worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the owner of the property on paper. Intention is a mental element which is proved and disproved through positive acts. The intention to dispossess needs to be open and hostile enough to bring the same to the knowledge and the owner has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving (willful) or omission of the right to defend or care for the integrity of the property on the part of the owner. Intention to possess cannot be substituted for intention to dispossess which is essential to prove adverse possession. In the present case as stated above the factum of possession only indicate intention to possess the land. There is no evidence on behalf of the appellants regarding the intention to dispossess. It is well settled that for constituting adverse possession corpus possidendi coupled with animus possidendi must be there. In the present case although there is evidence of possession stated by the witnesses but mere long possession will never constitute adverse possession. Moreover according to the defendants when encroachment was made encroachment case has been instituted. 15. In a recent decision reported in AIR 2010 SCW 977 Mandal Revenue Officers Vs. Goundla Venkaiah the Hon‟ble Supreme Court at paragraph 29 has held that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the court is duty bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result destruction of right, public title of the State to immovable property and give upper hand to the encroachers, 9 unauthorized occupants or land grabbers. It appears that in that case also the case of the illegal occupant was that they have acquired title over the land by adverse possession on the ground that they were in possession of the land for last more than 50 years without any interference or obstruction. It was found in that case also that they are in illegal possession and failed to prove that their possession was open and hostile to the government so as to entitle them to claim title over the land by adverse possession. In the present case, except the long possession there is neither any pleading regarding exercise of hostile title nor there is evidence. As stated above intention to possess is separate than the intention to dispossess the true owner. In this case the intention to dispossess the true owner is absent and is not supported by any evidence. Moreover none of the plaintiffs came to witness box in support of their case. Therefore, the plaintiffs themselves are not supporting their case. Therefore, the learned court below has rightly drawn adverse inference against plaintiffs. 16. In view of the facts and circumstances and in view of my above discussion, the plaintiffs have failed to prove their title on the basis of adverse possession. In my opinion therefore, the learned court below has rightly dismissed the plaintiffs‟ suit on this point. 17. So far the finding the trial court that the suit is not maintainable being barred under the provisions of Bihar Public Land Encroachment Act is concerned in my opinion it is erroneous as Section 16 of the said Act lays down that no suit or other legal proceeding shall lie in any court in respect of any order passed under this Act. In the present case, the plaintiffs are not challenging any order passed by the authorities under Bihar Public Land Encroachment Act. The plaintiffs filed the suit for declaration of title and therefore, it 10 is clearly maintainable. The finding of the court below on this point is therefore, reversed. 18. In view of my above discussions, that the plaintiffs have failed to prove acquisition of their title by adverse possession, I find no reason to interfere with the impugned judgment and decree. 19. In the result, I find no merit in this appeal and accordingly, this first appeal is dismissed with cost. The cost is assessed at Rs. 10,000/-. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 20th January, 2011 S.S./N.A.F.R.