Saroj Kumar Singh Vs Deputy Commissioner Koderma

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IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.33 of 2022

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(Against the judgment dated 31.01.2022 passed by the District Judge-III, Koderma in Civil Appeal No.24 of 2018)

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Saroj Kumar Singh aged about 47 years,

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Manoj Kumar Singh aged about 50 years Both are sons of Rajdeo Singh.

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Rajdeo Singh aged about 75 years son of Late Kali Singh

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Arjun Singh aged about 70 years son of Late Kali Singh All resident of village Gumo, ward No.19 (Now Ward No.20), P.O. Jhumritilaiya, P.S. Tilaiya, District Koderma.

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.... .... …. Plaintiffs/Appellants/Appellants

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Versus

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Deputy Commissioner, Koderma representing State of Jharkhand, P.O. & P.S. & District Koderma.

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Circle Officer, Chandwara, P.O. & P.S. Chandwara, District Koderma.

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.... .... …. Defendants/Respondents/Respondents

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For the Appellants : Mr. Rakesh Kr. Gupta, Advocate Mr. Yogendra Prasad, Advocate

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P R E S E N T

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HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:- Heard the learned counsel for the appellants.

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This Second Appeal, under Section 100 of Code of Civil Procedure, has been preferred against the judgment of concurrence dated 31.01.2022 passed by the District Judge-III, Koderma in Civil Appeal No.24 of 2018 whereby and where under the learned first appellate court has upheld the judgment and decree passed by the trial court being the Additional Munsif-II, Koderma in

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S.A. No.33 of 2022

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Title Suit No.49 of 2010 dated 31.08.2018 whereby and where under the learned Additional Munsif-II, Koderma dismissed the suit of the plaintiffs and the District Judge-III, Koderma dismissed the appeal on contest but with cost.

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The brief facts of the case is that the appellants filed Title Suit No.49 of 2010 in the court of Additional Munsif-II, Koderma with a prayer for declaration of their right, title and interest over the land mentioned in Schedule-A of the plaint and permanent injunction restraining the defendants from interfering with the possession of the plaintiffs and other reliefs.

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The case of the plaintiffs in brief is that the plaintiffs have been in possession of the land in question since the time of their ancestors and have perfected and acquired full and valid title by way of adverse possession for remaining in possession for more than 12 years to the knowledge of the whole world. Hence, the defendant- State ceased to have any right, title or interest over the suit land. The cause of action for the suit arose when the plaintiffs protested on 15.07.2010 when the defendants dug coal on the land of the plaintiffs. The defendant- State in their written statement challenged the maintainability of the suit on various technical grounds. It is next pleaded by the defendants that the land in question has been acquired from Kameshwar Singh, Mostt. Sabitri, Durga Singh, Kali Singh, Janki Singh and Banshi Singh after paying compensation in respect of the acquisition of the land.

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On the basis of the rival pleadings of the parties, the learned trial court settled the following seven issues:-

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I. Whether the suit as framed is maintainable in its present form?

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II. Whether any cause of action for the suit ever arose to the plaintiffs?

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III. Whether the suit is fit by the provision of limitation, waiver, estoppels and acquiescence?

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IV. Whether the suit has properly been valued and court fee paid thereon is adequate for the reliefs claimed?

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V. Whether the plaintiffs have perfected their title over the suit land on the basis of adverse possession also by remaining in possession over the same since the time of their ancestor namely Jairam Singh, whose name was recorded as Bakast Malik in Cadestral Survey?

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VI. Whether the land of khata no.07, plot no. 220, area 2.88 acres of MauzaBidar, P.S. Telaiya, then has been acquired by the Government vide Declaration no. DLAH/86, 170, dtd. 11.08.1970 from the descendants of the recorded tenant namely Jairam Singh after giving due compensation to them?

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VII. Whether the plaintiffs are entitled to the reliefs as claimed with cost?

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In support of their case, the plaintiffs examined seven witnesses and proved the documents which have been marked Ext.1 to 7 whereas from the side of the defendants, two witnesses were examined and proved the documents which have been marked Ext.A to N.

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Learned trial court first took up issue Nos. V and VI and after considering the evidence in the record, came to the conclusion that except one rent receipt marked Ext.1, the plaintiffs failed to produce any evidence in connection with possession of the land. Mere payment of rent does not create title. The plaintiffs have not produced any receipt from 1950-1998. On the other hand the defendants established that the suit land has been acquired by the Government through Government notification and through land acquisition proceeding which has been marked Ext.C.

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The land was acquired for the purpose of accommodating the refugee of East Pakistan and when they left, the acquired land were transferred by the Government to the police camp, Chandwara and now Home Guard Training Centre exists there and the Government is in possession of the suit land and thus came to the conclusion that the plaintiffs failed to prove their case that they have perfected their title by way of adverse possession and answered the issue Nos.V and VI against the plaintiffs.

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The learned trial court next took up issue Nos.I, II and VII and held that the suit is not maintained in its present form and no cause of action for the suit arises and the plaintiffs are not entitled to the reliefs claimed.

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The learned trial court further took up issue No.III and decided the same in favour of the defendants. The learned trial court lastly took up issue No. IV and found that the suit was properly valued for the reliefs claimed and went on to dismiss the suit on contest with cost.

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Being aggrieved by the judgment and decree passed by the trial court, the plaintiffs/appellants filed Civil Appeal No.27 of 2018 in the court of Principal District Judge, Koderma which was ultimately heard and disposed of by the learned first appellate court as already indicated above.

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The learned first appellate court, on the basis of the materials available in the record and the submissions made before it, formulated the following six points for determination:-

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(I) Whether the judgment and decree passed by the Ld. Lower court dated 31.08.2018 is legally sustainable in the eyes of law or not?

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(II) Whether the judgment and decree passed by Ld. Trial court requires any interference?

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(III) Whether the suit suffers from non-joinder of necessary parties?

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(IV) Whether the plaintiffs have right, title, interest and possession over the suit land on the basis of ancestral property since the time of their ancestor namely Jairam Singh, recorded as a Bakast Malik in cadastral survey and also on the basis of adverse possession having valid cause of action for the same?

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(V) Whether the suit land situated within Khata No.07, Plot No.220, area2.88 acres within Mauza-Bidar, P.S.- Telaiya, District- Koderma has been acquired by the Govt. vide Declaration No. DLAH/86, 170 dated 11.08.1970 from the descendants of the recorded tenant namely Kali Singh after giving proper compensation to them?

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(VI) Whether the suit is filed within proper time before the Ld. Lower court?

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The learned first appellate court considered the settled principle of law that in a suit for declaration burden of proving title always lies on the plaintiffs to make out and establish a clear case for making such a declaration and weaknesses of the case set up by the defendants, could not be a ground to grant relief to the plaintiffs. The first appellate court also considered that the entry in revenue Record of Rights do not create any title and went on to hold that the plaintiffs failed to prove their right, title, interest and possession over the suit land. So, there is no cause of action for the suit. Hence, the suit is not maintainable. The learned first appellate court after making independent appreciation of the evidence in the record, went on to hold that the finding of the trial court is just and proper and upheld the judgment and decree passed by the trial court and dismissed the appeal.

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Learned counsel for the appellants submits that both the courts below erred in law in dismissing the suit for declaration of right, title and interest by

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failing to appreciate the evidence available in the record in their right perspective. It is next submitted that the judgment and decree passed by both the courts below is not sustainable in law hence, is liable to be quashed and set aside.

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Having heard the submission made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law that adverse possession requires all the three classic requirements to co-exist at the same time, namely, adequate in continuity, adequate in publicity and adverse to a competitor, in denial of title and his knowledge moreover animus possidendi under hostile colour of title is also required as has been held by the Hon’ble Supreme Court of India in the case of Ravinder Kaur Grewal & Others vs. Manjit Kaur & Others reported in

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(2019) 8 SCC 729 paragraph-60 of which reads as under:-

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“60. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser's long possession is not synonymous with adverse possession. Trespasser's possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and large the concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession.” (Emphasis supplied)

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It is also a settled principle of law that a person who claims adverse

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possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was

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known to the other party, (d) how long his possession has continued and (e) his possession was open and undisturbed; as has been held by the Hon’ble Supreme Court of India in the case of Karnataka Board of Wakf vs. Government of India & Others reported in (2004) 10 SCC 779, paragraph-11 of which reads as under:-

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“11. Xxxxx Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.”

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In this context, it is also relevant to refer to the judgment of the Hon’ble Supreme Court of India in the case of R. Hanumaiah & Another vs. Secretary to the Government of Karnataka, Revenue Department & Others reported in (2010) 5 SCC 203 wherein in paragraph-20, it was observed by the Hon’ble Supreme Court of India that many civil courts deal with suits for declaration of title and injunction against government, in a casual manner, ignoring or overlooking the special features relating to government properties. It was further observed by the Hon’ble Supreme Court of India therein that whether the government contests the suit or not, before a suit for declaration of title against a government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace of title for a minimum period of thirty years prior to the date of the suit (except where title is claimed

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with reference to grant or transfer by the government or a statutory

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development authority), or by establishing adverse possession for a period of more than thirty years. The Hon’ble Supreme Court of India further observed in the said judgment that in such suits, courts cannot, ignore the presumptions available in favour of the government, and by such ignorance not to grant declaratory or injunctive decrees against the government by relying upon the principles that plaint averments, which were not denied or traversed, are deemed to have been accepted or admitted and the courts in such cases should find out whether the plaintiffs in such cases is recorded to be the owner or holder or occupant of the property in the revenue records or municipal records, for more than thirty years. Mere temporary use or occupation without the animus to claim ownership or mere use at sufferance, will not be sufficient to create any right adverse to the Government. It was further observed that in order to oust or defeat the title of the government, a claimant has to establish a clear title which is superior to or better than the title of the government or establish perfection of title by adverse possession for a period of more than thirty years with the knowledge of the government.

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Now coming to the facts of the case as already indicated above in the plaint, there is absolutely no mention as to when the plaintiffs came into possession, when the possession of the plaintiffs became adverse to the real owner, who is the real owner, in what manner the plaintiffs have been possessing the suit land. As already indicated above except one rent receipt which has been marked Ext.1, no other rent receipt could have been filed by the plaintiffs.

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Under such circumstances, this Court is of the considered view that there is absolutely no illegality in the finding of facts arrived at by both the courts

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below that the plaintiffs have failed to establish their title which was claimed by the plaintiffs against the State Government and the perusal of the record reveals that there is no substantial question of law involved in this appeal.

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