Dismissed

Bharosa (Died) Throug Legal Heir v. Smt.Asha Sharma

Chhattisgarh HC14 Jan 2025SA/1016/1998

Case brief

AI extract

What is this about?

Second appeal by plaintiff whose suit for declaration of title based on adverse possession was reversed in first appeal. The court held remarks-column Khasra entries carry no presumptive value and mere long possession without hostile animus does not perfect adverse possession; dismissed the appeal, upholding the first appellate decree.

What the court decided

AI extract

Bharosa (Died) Throug Legal Heir Vs Smt.Asha Sharma — Property and Title | Chhattisgarh HC (2025)

2025:CGHC:2411

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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SA No. 1016 of 1998

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1 - Bharosa (Died) Throug Legal Heir As Per Honble Court Order Dated 11-12-2024.

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1.1 - Anil Lakda S/o Late Bharosa Aged About 45 Years R/o Village Kantiprakashpur, Luchki, Police Station And Tahsil Ambikapur, District Surguja, C.G.

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... Petitioner(s)

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Digitally signed by AJAY KUMAR DWIVEDI Date: 2025.01.16 15:07:00 +0530

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versus

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1 – Smt. Asha Sharma W/o Late N. N. Sharma Aged About 48 Years R/o R. R. - 6, Old Lake Road, Luisburg, Tenasi 37091, United States Of America. (L/rs Of Dfd No. 1)(Defendant)

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2 - Rajat Sharma S/o Late N. N. Sharma Aged About 17 Years Student Through Her Mother And Natural Guardian Smt. Asha Sharma, R/o R. R. - 6, Old Lake Road, Luisburg, Tenasi 37091, United States Of America. (L/rs Of Dfd No. 1) (Defendant)

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3 - Smt. Kushum W/o Nityanand Sharma Aged About 35 Years Caste- Brahmin, Occupation House- Hold- R/o Sattipara Ambikapur P.S. And Teh- Ambikapur Distt.- Sarguja, M.P. (Def No. 2)(Defendant)

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4 - The State Of M.P. Through Collector, Sarguja, Ambikapur (Dfd No. 3) (Defendant)

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... Respondent(s) For Petitioner(s) : Mr. Anurag Singh, Advocate. For Res No.4/State : Mr. Anurag Tripathi, Panel Lawyer.

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SB.: Hon'ble Mr. Justice Deepak Kumar Tiwari

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Judgment on Board

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15/01/2025

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This is a Second Appeal filed by the appellant/plaintiff under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “ the CPC ”) against the judgment and decree dated 03.09.1998 passed by the First Additional District Judge, Ambikapur, Surguja in Civil Appeal No.9-A/1992 reversing the judgment and decree dated 31.01.1992 passed by the Fifth Civil Judge, Class-II, Ambikapur in Civil Suit No.43A/1991.

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By the impugned judgment and decree, the First Appellate Court has allowed the appeal filed by respondents No.1 and 2 (defendants therein) and in consequence, set-aside the judgment and decree passed by the trial Court, which had allowed the plaintiff’s suit.

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So the short question that arises for consideration in this appeal is whether this Second appeal involves any substantial question law within the meaning of Section 100 of the CPC and whether such appeal should be admitted for final hearing?

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Henceforth, the parties shall be referred to as per their description before the Court below.

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Facts of the case, in brief, are that the appellant/plaintiff filed civil suit for declaration of title and permanent injunction in respect of the agricultural land bearing Khasra No.512/12 Area 2.481 Hectares situated at Village Kantiprakashpur, Tahsil Ambikapur, Surguja. It has been averred that suit land was previously covered with small bushes and the

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same was made good for agriculture purposes by the father of the plaintiff Sukhra who occupied it nearly 40 years prior to the date of institution of the suit. Further, the plaintiff was also cultivating on the said land with joint possession along with his father and after death of his father in the year 1984 he continued his possession over the said land. However, in the month of July, 1984 defendant No.2 therein, namely, Kushum W/o Nityanand Sharma tried to disturb the possession of the plaintiff. Thereafter, the plaintiff came to know that the Patta of the said land was issued in the name of defendant No.1 therein namely Nityanand Sharma. Hence, the suit has been filed for declaration of title and permanent injunction on the basis of adverse possession.

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Thereafter, defendant No.1 filed written statement denying the plaint averments. It was asserted that land was allotted to the defendant after issuance of Patta (Ex.-D-1) in the year 1957-58. Though he shifted to United States of America but his other family members, who were residing at Ambikapur were regularly looking after the said land. The defendant has also denied the possession of the plaintiff over the suit land and also denied that plaintiff perfected his title by way of adverse possession. The defendants No.2 and 3 (respondents No.3 & 4 herein) proceeded ex parte in the trial proceedings.

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Based on the pleadings of the parties, the trial Court examined as many as 4 issues. In order to prove his case, the appellant/plaintiff Bharosa examined himself as PW-1, Kunwarsai (PW-2) and one Bagarsai (PW-3). He has also exhibited Khasra related documents viz Ex.P-1 pertaining to the year 1976-77, Ex.P-2 pertaining to the year 1985-86 & Ex.P-3

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pertaining to the year 1986-87 wherein land was recorded in the name of defendant No.1 though in the remarks column name of the plaintiff is mentioned with a note that he is in possession. On the other hand, defendant No.1 examined himself as DW-1, Udit Narayan Pandey (DW2), Khurai Ram (DW-3), Ravishankar Pandey (DW-4) and one Burun (DW-5). The defendant has exhibited three documents viz Patta of the subject land issued in his favour on 19.08.1960 (Ex.D-1) by Naib Tahsildar Ambikapur, Premium receipt of Rs. 53.70/- paid by defendant No.1 (Ex.D-2) and Revenue copy of the subject land (Ex.D-3).

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After evaluating the evidence available on record, the trial Court passed the decree in favour of the plaintiff and held that the plaintiff is in possession of the subject land for the last 40 years and in this way he has perfected his title by way of adverse possession.

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Against the said findings, defendant No.1 preferred the First Appeal and the First Appellate Court, on appeal, concluded that the trial Court has committed an error in holding that plaintiff has perfected the title on the basis of adverse possession as parameter of adverse possession has not been satisfied and revenue entries mentioned in the documents could not be relied on as in column No.3, name of defendant No.1 is recorded as owner of the land. It was also held that plaintiff has not challenged the said Patta which was issued in favour of defendant No.1. Ultimately, the first appeal was allowed and judgment and decree passed by the trial Court was set-aside. It is this judgment and decree passed by the First Appellate Court, which is impugned in the Second Appeal filed by the appellant/plaintiff.

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During the pendency of the appeal the appellant has preferred an application under Order 41 Rule 27 of the CPC r/w Section 151 of the CPC marked as IA No.5/2025.

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Learned counsel for the appellant submits that during the pendency of this appeal original defendant No.1 alienated the subject property in the name of one Rekhankan Builders Pvt. Ltd by executing registered sale deed on 23.04.2006 without obtaining permission from the competent authority under Section 165 (7-B) of the C.G. Land Revenue Code. Therefore, the appellant preferred an application (Revenue Case No.309/A-21/2011-12) before the Collector, Surguja, Ambikapur to the effect that alienation of subject land is in violation of the settled provisions and subject land be recorded in the name of the Government. The said application was allowed vide the order dated 23.07.2012 and a direction was issued to record the name of State in respect of Khasra No.512/12 Area 2.481 Hectares and also to recover the possession of the land from the purchaser in accordance with law. Learned counsel further submits that against the order passed by the Collector, the purchaser has preferred an appeal (Revenue Appeal Case No.117/A-21/2014-15) before the Commissioner, Surguja Division (Ambikapur) but the same was of no avail and consequently, the appeal was dismissed on 02.04.2018. In view of such subsequent development, the appellant/plaintiff filed copy of aforesaid orders along with application under Order 41 Rule 27 (IA No.5) with affidavit.

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Learned counsel for the appellant would further submit that initially the suit has been filed against defendant No.1 claiming his title on the basis

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of adverse possession but looking to the subsequent development, he is not claiming any relief against the private defendants and at this juncture matter is required to be remitted back to the concerned Court in order establish the case against the State after carrying out certain amendments.

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Heard learned counsel for the appellants and perused the record with utmost circumspection.

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In the matter of Churamani Vs. Ramadhar reported in 1991 MPLJ 311 [DB], it has been observed that a presumption as regards continuity of possession of the plaintiffs over the suit land could not be drawn in favour of plaintiffs on the basis of remarks recorded in the remarks column. No presumption of correctness can attached to an entry made by the Patwari in the remarks column of a Khasra or field-book showing therein some third party/trespasser to be in possession of the land held by a Bhumiswami and recorded as such in his name in the said land records. Presumption under Section 117 of the Code applies to those entries which are required to be made under Chapter IX and in respect of entries in other land records prepared under the Code. The provisions of the Code or the Rules made thereunder do not require the Patwari to make any entry in the remarks column and if such an entry is made, the same cannot have any presumptive value as regards its correctness under Section 117 of the Code. As there is no such duty cast on the Patwari to make an entry in the remarks column there arises no question of drawing any presumption under Section 114(e) of the Evidence Act regarding any act of the Patwari having been regularly performed.

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Relying on the aforesaid proposition, the High Court of Madhya Pradesh in the matter of Jageshwar Ramsahay Ahir Vs. Parmeshwar Ramprasad Yadav [AIR 2000 MP 223] has observed that if any such finding has been recorded placing reliance on a material which is not of presumptive value and ignoring the presumption of continuity of possession of actual Bhumiswami or Pattedar, the said finding is perverse, and following was observed at Para 5 and 6 :-

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“5. After considering the rival submissions this Court is of the opinion that no reliance could be placed on the entries in the remarks column of the Khasras in view of the Division Bench decision of this Court referred above. A perusal of the Khasra entries shows that the lands continued to be recorded in column No. 3 in the name of the defendant's father. It is only in the remarks column No. 12 that the name of the father of the plaintiffs appears. The entries in the remarks column are not presumed to be correct. If these entries are excluded from consideration the presumption would be that the possession of the Bhumiswami whose name finds place in column No. 3 and his heir continues. The possession follows title. The title of the Bhumiswami is not extinguished so lightly. The oral evidence on record is evenly balanced. The Courts below have accepted that evidence in favour of the plaintiffs because that has been found consistent with the entries in the remarks column of the Khasra in their favour.

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6 . The finding of the Courts below on the question of actual possession of the plaintiffs in violation of the principles of law laid down by this Court is perverse and illegal and that finding is not binding in second appeal (Mehrunnisa v. Visham Kumari. AIR 1998 SC 427). This is not a case of mere appreciation of evidence but placing reliance on a

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material which is not of presumptive value and ignoring the presumption of continuity of the possession of actual Bhumiswami or Pattedar. The questions No. 1 and 2 are answered accordingly.”

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From the evidence available on record, it is quite vivid that plaintiff is not aware about the owner of the subject land whereas he has claimed title on the basis of adverse possession. It is also admitted by the plaintiff that the suit has been filed against the private defendants and mainly allegations have been made against defendant No.1, however, now the land belongs to the State but the State has been arrayed as a formal party. Moreover, defendant No.1 has duly filed Patta (Ex.D-1) issued by the Government.

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It is well establish that mere possession however long does not necessarily mean that it is adverse to the true owner. If the plaintiff is not sure as to who is the true owner, the question of their being in hostile possession and the question of denying title of the true owner do not arise. In the matter of T. Anjanappa Vs. Somalingappa [(2006) 7 SCC 570] , observation has been made with regard to hostile possession which reads thus:-

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“20 . It is well recognized proposition in law that mere possession however long does not necessarily means that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The

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classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action.

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21. The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise.”

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In view of the aforesaid discussion, it is explicit that the trial Court has wrongly relied upon the revenue entry made in column No.12 of Khasra document and passed the decree in favour of the plaintiff without certifying the parameters of adverse possession, whereas the First Appellate Court corrected the findings recorded by the trial Court.

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For the foregoing, I find absolutely no merit in this appeal, involving no question of law much less substantial question of law within the meaning of Section 100 of the CPC. In my view, the impugned judgment and decree appears to be just, proper and legal. The findings recorded by the First Appellate Court are based on proper appreciation of evidence available on record and there is no illegality or perversity in the same which does not call for any interference.

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