FIRST APPEAL No. 741 OF 1993 Against the judgment and decree dated 30.09.1993 passed by Sri B.N.Mishra, Sub Judge II, Patna in Title Suit No. 262 of 1983. ********* AJAB NARAIN SINGH ---------------Plaintiff-Appellant Versus THE STATE OF BIHAR-------------Defendants-Respondents For the Appellant – Mr. Rajendra Kumar Jain, Advocate For the Respondent – Mr. Anil Kumar Jha, Sr. Advocate, G.A.-2 Mr. Sant Kumar Mishra, A.C. to G.A.-2 Dated : 13th day of September, 2010 P R E S E N T HON'BLE MR. JUSTICE MUNGESHWAR SAHOO ------------ J U D G M E N T Mungeshwar Sahoo, J. The plaintiff, Sri Ajab Narain Singh has filed this appeal against the judgment and decree dated 30.09.1993 passed by Sri B.N.Mishra, the learned Sub Judge II, Patna in Title Suit No. 262 of 1983 dismissing the plaintiff-appellant’s suit. (2) The plaintiff-appellant filed the aforesaid suit for declaration of his title over the suit land described in schedule 1 of the plaint and further for recovery of possession with respect to 3 Kathas of land described in schedule 2 of the plaint. The plaintiff also prayed for permanent injunction restraining the defendants from dispossessing the plaintiff from the suit land and making any construction over it. (3) According to the plaintiff’s case, the survey plot no. 1628 measuring 3.93 acres at Mauja- Mainpura, Thana No. 2, P.S.- Phulwarisharif, District-Patna was in use of the villagers since time immemorial. The said land was recorded as Garmajarua Aam in the 2 record of right. The family of the plaintiff had a Khalihan over western portion of the suit plot over an area of 10 Kathas since time immemorial. The ancestors and thereafter, the plaintiff are coming in actual physical possession of the same since time immemorial. The plaintiff possessed the suit land uninterruptedly in the knowledge of the defendants and ousting them for more than many 12 years. As such, the plaintiff has acquired title over the disputed land by adverse possession. About 25 years ago, the plaintiff enclosed the disputed land measuring about 10 Kathas and constructed several pucca constructions over said 10 Kathas. The plaintiff inducted tenants who are running tea stalls, fish shops, vegetables shops etc. The plaintiff is also running a timber and furniture shop in a part of suit land. The character of the suit land has changed 25 years ago and now, it is homestead sahan land of the plaintiff. The plaintiff has also filed title suit being title suit no. 67 of 1980 and 68 of 1980 against the different tenants for their evictions which were decreed in favour of the plaintiff. The Housing Construction Society created trouble, so, 144 Cr.P.C. proceeding was initiated being Case No. 817(M/74). The said proceeding was dropped and again trouble started, so, another 144 Cr.P.C. proceeding was initiated which was converted into 145 Cr.P.C. proceeding and it was decided on 20.11.1980 in favour of the plaintiff. The plaintiff came to know that the defendants are going to construct over the disputed land so, he requested not to dispossess him and construct over the suit land. Subsequently, 144 Cr.P.C. proceeding was initiated which was again dropped. The plaintiff filed Criminal Revision No. 441 of 1983 and the Hon’ble Court directed to maintain status quo but the defendants proceeded to construct and therefore, a contempt application was filed. The said contempt application was also dropped. Then the plaintiff filed C.W.J.C. No. 3710 of 1983 regarding the entire 10 Kathas land for issuance of Writ of Mandamus in respect of 3 Kathas of land from which, the plaintiff had 3 been dispossessed but the Hon’ble High Court dismissed the said writ application and directed the plaintiff to file suit. After service of notice under Section 80 C.P.C., therefore, the plaintiff filed suit against the defendant. (4) The defendants appeared and filed a contesting written statement alleging that the suit is bad for non-service of notice under Section 80 C.P.C. The State of Bihar transferred 45 decimals of land for construction of Patliputra Thana and its building. Six flats have already been constructed and Thana building has also been constructed but the same has been stayed by the order of the Court. Several lacs of Rupees have already been spent in construction of the buildings. The suit is bad for undervalue and the plaintiff is liable to pay ad volerum court fee. The further case of the defendants is that by merely using Government land as Khalihan, nobody will acquire title by adverse possession. Khalihan is used temporarily for a few days only in every year. The defendants also denied acquisition of title by adverse possession and also possession for more than many 12 years. The defendants also stated that the plaintiff has neither acquired title nor is in possession of any portion of the suit land. (5) On the basis of these pleadings, the learned Court below framed 11 issues as follows : (i) Is the suit as framed maintainable? (ii) Has the plaintiff got valid cause of action for the suit? (iii) Is the suit barred u/s 34 of the Specific Relief Act? (iv) Is the suit bad for non-compliance of Section 80 C.P.C.? (v) Is the suit bad for non-joinder of necessary parties? (vi) Is the suit barred under the principles of waiver, estoppel and acquiescence? (vii) Did the plaintiff acquire title by adverse possession over the suit land? 4 (viii) Is the plaintiff entitled for declaration of his title over the suit land? (ix) Is the plaintiff entitled for recovery of possession over three kathas of land? (x) Is the plaintiff entitled to the relief claimed? (xi) To what other relief or releifs, if any, the plaintiff is entitled for? (6) After trial, the learned Court below found that the contentions of the plaintiffs of adverse possession failed and the plaintiff is not entitled to a decree for declaration of his title over the suit land and, therefore, he is not entitled for recovery of possession. (7) The learned counsel appearing on behalf of the appellant submitted that the learned Court below has wrongly dismissed the plaintiff’s suit. According to the learned counsel, the plaintiff has acquired title over the disputed land by adverse possession. The learned counsel further submitted that he is still in possession of 7 kathas land and he has been dispossessed from only 3 kathas land and, therefore, he has field the suit for declaration of his title over entire suit properties and for recovery of possession for only 3 kathas. The learned counsel further submitted that there are overwhelming evidences to show that the plaintiff is in possession over the suit properties for many 12 years as such, has prescribed his title by adverse possession. On these grounds, the learned counsel submitted that the impugned judgment and decree are liable to be set aside and the plaintiff’s suit be decreed. (8) The learned Senior Advocate, Mr. Anil Kumar Jha, G.A.2 appearing on behalf of the State of Bihar submitted that the appellant is a land grabber and is trying to grab the public land on the ground of adverse possession. The learned counsel further submitted that the learned Court below has rightly dismissed the claim of the plaintiff- appellant finding that there are no reliable evidence regarding adverse 5 possession and moreover, in the plaint, he himself has stated that 25 years ago, he enclosed the suit property and constructed shop. The learned counsel further submitted that mere possession for a long period cannot be termed as adverse possession and the plaintiff will never acquire title by adverse possession merely on the basis of possession for a long period. The learned counsel relied upon various decisions of the Hon’ble Supreme Court which I shall refer hereinafter. In view of the above contentions of the parties, the only point arises for consideration in this appeal is as to “whether the plaintiff has acquired title by adverse possession over the suit property and is entitled for a decree as claimed by him” or “whether the impugned judgment and decree are sustainable in the eye of law.” (9) In this case, to establish his title by adverse possession, the plaintiff has examined altogether 12 witnesses. Out of them, P.W.10 is the plaintiff, Ajab Narain Singh himself. He has stated that he is in possession of the suit property since last 40-45 years. In 1983, his construction was demolished by the Government and was dispossessed from 3 kathas out of 10 kathas. The other witnesses have also stated in the same line that the plaintiff is in possession for more than 30-35 years or 40-45 years etc. and etc. P.W.2 says plaintiff’s possession since 20 years, P.W.3 says the possession of plaintiff since 30-35 years, P.W. 4 says possession of plaintiff since 40-45 years. From perusal of the evidences of other witnesses also, it appears that their evidences are also in the same line. In view of these above evidences, the question arises for consideration is as to whether the long possession will constitute adverse possession. For constituting adverse possession, there must be two elements, firstly, corpus possidendi and secondly, animus possidendi. The possessor must have animus possidendi and hold the land adverse to the title of true owner which should be open, continuous and hostile. Mere long possession for more than the period prescribed by the 6 Limitation Act does not ripen into a title. (10) The Hon’ble Supreme Court in catena of decisions has held so. In the present case, only evidence available is that the plaintiff is in possession for long period. There is no positive evidence to prove that the possession was open and hostile to the Government so as to entitle the plaintiff to claim title over the suit properties on the basis of adverse possession. It may be mentioned here that admittedly the suit property is public land i.e. of the State Government. It is necessary to remember that it is well neigh impossible for the State and its instrumentalities including local authorities to keep every day vigilance/watch over vast tracts of open land owned by them or of which they are the public trustees. No amount of vigil can stop encroachments and unauthorized occupation of public land by unscrupulous elements, who act like vultures to grab such land, raise illegal constructions and, at times, succeeded in manipulating the State apparatus for getting their occupation/possession and construction regularized. (11) The Hon’ble Supreme Court in the case of Mandal Revenue Officer vs. Goundla Venkaiah reported in 2010, Vol. 2, SCW 1977 in similarly situated case observed that it is our considered view 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 in destruction of right/title of the State to immovable property and give upper hand to the encroachers, unauthorized occupants or land grabbers. For better appreciation of the ratio decided by the Hon’ble Supreme Court, I am tempted to quote here some of the Paragraphs of the aforesaid decision such as Paragraph 29 to 33 as follows: “29. In our view, even though by making reference to the judgment of this Court in Syed Yakoob v. K.S.Radhakrishnan and others(AIR 1964 SC 4770 (supra), the High Court has given an impression that it was 7 aware of the limitations of certiorari jurisdiction under Article 226 of the Constitution of India, a critical analysis of the impugned order makes it clear that the High Court exceeded its jurisdiction and committed serious error by interfering with the well articulated and well reasoned concurrent findings recorded by the Special Tribunal and the Special Court that Gonda Mallaiah had illegally occupied the Government land and after his death, the respondents continued with the illegal possession and as such they were liable to be treated as land grabbers within the meaning of Section 2(d) of the Land Grabbing Act and that they have failed to prove that their possession was open and hostile to the Government so as to entitle them to claim title over the schedule land by adverse possession. The respondents did not produce any affirmative evidence before the Special Tribunal regarding the point of time when Gonda Mallaiah occupied the land and started cultivation. Instead, they relied upon the notices issued under Section 7 of the Encroachment Act and pleaded that the proceedings initiated under that Act will be deemed to have been dropped because no order was passed for eviction of their father by treating him an encroacher of the Government land. The Special Court has considered this issue in detail and assigned cogent reasons for doubting the authenticity of the documents produced by the respondents in support of their plea. The High Court completely overlooked the observations made by the Special Court on this issue and decided the case by presuming that the competent authority had taken a conscious decision to allow Gonda Mallaiah to continue his occupation of the Government land. In our considered view, the approach adopted by the High Court was ex-facie erroneous because absence of final order in the proceedings initiated under the Encroachment Act cannot lead to an inference that the concerned authority had recognized the possession of Gonda Mallaiah over the schedule land. That apart, even if this Court was to presume that the proceedings initiated against Gonda Mallaiah under the Encroachment Act had been dropped, the said presumption cannot be over stretched for entertaining the respondents’ claim that their possession was open and hostile qua the true owner i.e. the Government. The payment of land revenue by Gonda Mallaiah and/or the respondents and making of applications by them to the Government for assignment of the schedule land or regularization of their 8 possession, completely demolish their case that their possession was open and hostile and they have acquired title by adverse possession. In this context, it is necessary to remember that it is well neigh impossible for the State and its instrumentalities including the local authorities to keep every day vigilance/watch over vast tracts of open land owned by them or of which they are the public trustees. No amount of vigil can stop encroachments and unauthorized occupation of public land by unscrupulous elements, who act like vultures to grab such land, raise illegal construction and, at times, succeeded in manipulating the State apparatus for getting their occupation/possession and construction regularized. It is our considered view 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 in destruction of right/title of the State to immovable property and give upper hand to the encroachers, unauthorized occupants or land grabbers. 30. In State of Rajasthan v. Harphool Singh(Dead) through LRs. 2000(5) SCC 652, this Court considered the question whether the respondents had acquired title by adverse possession over the suit land situated at Nohar-Bhadra Road at Nohar within the State of Rajasthan. The suit filed by the respondent against his threatened dispossession was decreed by the trial Court with the finding that he had acquired title by adverse possession. The first and second appeals preferred by the State Government were dismissed by the lower appellate Court and the High Court respectively. This Court reversed the judgments and decrees of the courts below as also of the High Court and held that the plaintiff-respondent could not substantiate his claim of perfection of title by adverse possession. Some of the observations made on the issue of acquisition of title by adverse possession which have bearing on this case are extracted below:- “So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immovable property and conferring upon a third-party encroacher title where he had none. The decision in P.Lakshmi Reddy v. L.Lakshmi 9 Reddy(AIR 1957 SC 314) adverted to the ordinary classical requirement-that it should be nec vi, nec clam, nec precario-that is the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. It was also observed therein that whatever may be the animus or intention of a person wanting to acquire title by adverse possession, his adverse possession cannot commence until he obtains actual possession with the required animus.” 31. A somewhat similar view was expressed in A.A.Gopalakrishnan v. Cochin Devaswom Board, 2007(7) SCC 482: (2007 AIR SCW 5741). While adverting to the need for protecting the properties of deities, temples and Devaswom Boards, the Court observed as under:- “The properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their trustees/archakas/shebaits/employees. Instances are many where person entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of “fences eating the crops” should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation.” 32. Before concluding, we may notice two recent judgments in which law on the question of acquisition of title by adverse possession has been considered and reiterated. In Annakili v. A. Vedanayagam, 2007 (14) SCC 308 : (2007 AIR SCW 6892), the Court observed as under :- “Claim by adverse possession has two elements : (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well-settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. 10 Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in the said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more does not ripen into a title.” 33. In P.T. Munichikkanna Reddy v. Revamma, 2007 (6) SCC 59 : (2007 AIR SCW 2897), the Court considered various facets of the law of adverse possession and laid down various propositions including the following : “Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile,” “To assess a claim of adverse possession, two-pronged enquiry is required : 1. Application of limitation provision thereby jurisprudentially “willful neglect” element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner. 2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper-owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.” (12) In the present case only evidence is that the plaintiff is in possession for long. Adverse possession against State is 30 years. The pleading is that the plaintiff is in possession for many 12 years and that 25 years ago, he enclosed the suit land. (13) In view of the above discussion and the law laid down by the Hon’ble Supreme Court, in the present case at our hand, the plaintiff- appellant has miserably failed to prove his title by adverse possession and the learned Court below has rightly dismissed the plaintiff’s suit. (14) The learned counsel for the appellant raised a question 11 regarding proper service of notice under Section 80 C.P.C. It appears that the learned Court below has also found that the plaintiff has not served notice under Section 80 C.P.C. It appears that the plaintiff has filed the copy of Section 80 C.P.C. which is already on record. (15) Since I have already held that plaintiff has not acquired title by adverse possession, this question needs no answer. Even if, this question is decided in favour of the plaintiff, then also, plaintiff’s suit is liable to be dismissed. (16) It appears that the plaintiff illegally encroached upon the public land and constructed shop premises and also inducted tenants. When the State authorities tried to dispossess him, he dragged the State of Bihar to the Court by filing the suit. This shows the intention of the plaintiff to grab the public land as has been held by the Hon’ble Supreme Court in the decision quoted here-in-above. (17) Considering the above facts and circumstances of the case, I find no merit of this First Appeal and accordingly, this First Appeal is dismissed with cost of Rs.10,000/- to be paid by the plaintiff to the State of Bihar. The State of Bihar may realize the said amount from the plaintiff-appellant. Patna High Court, Patna Dated 13th September, 2010 N.A.F.R./ Saurabh (Mungeshwar Sahoo, J.)