BRIJESH KUMAR Vs. SHARDABAI

JUDGEMENT

(1.) The appellants are aggrieved by the order allowing the plaintiff's second appeal. The High Court reversed the order of the First Appellate Court and restored the order of the Trial Court decreeing the plaintiff's suit for adverse possession.

(2.) The suit lands comprise of 4 out of 6 Biswas of land situated in Survey No. 493 of Patwari Halka No.76 at VillagePurani Chhabani, Guna. The Original land owners were Mool Chand and Kashi Ram. The suit lands were sold to defendant no.9 Urmila Devi by registered sale deed dated 11.10.1972. By two separate registered sale deeds dated 22.08.1989 she sold an area of 3414.4 square feet each to the appellants in both the appeals. Possession was handed over and constructions raised by them. The plaintiff Matadin then filed Suit No. 45-A/1995 on 28.08.1990 claiming adverse possession over the suit lands relying on Khasra entries for 1960-1961. The plaintiff also sought a declaration of nullity against the sale deeds executed by the original land owners and subsequent thereto. The sole plaintiff Matadin expired on 26.05.1994. An amendment application was subsequently filed by his legal heirs on 21.04.1995 contending that Matadin had come in possession of the suit lands after the original land owners Moolchand and Kashi Ram had failed to return his bullocks and agricultural implements. The Civil Judge Class I, Guna decreed the suit holding that the plaintiff had perfected his title by continuous, hostile and uninterrupted possession for more than 12 years adverse to that of the original land owners, and that the sale deeds were a nullity. Regular Civil Appeal 19-A of 1996 preferred by the appellants was allowed holding that the Trial court had overlooked documentary evidence on record to arrive at an erroneous conclusion of adverse possession on basis of oral evidence only. The second appeal by the plaintiff was subsequently allowed by the impugned order holding that the conclusions of the first appellate court were erroneous, restoring the order decreeing the suit. Thus, the present appeal.

(3.) Shri Manoj Prasad, learned senior counsel appearing for the appellants, submitted that the findings of facts by the first appellate court are final. The High Court in a second appeal ought not to have reappraised the evidence to arrive at a different conclusion, without any finding of perversity. The plaintiff never acquired title by adverse possession as the original owner sold the lands to Urmila Devi before expiry of twelve years. The purchaser had come into possession, raised certain constructions, and resold part of the lands to the appellants who consequently came into possession also. The original owners had sought possession from the plaintiff in 1963-1964 also which was declined. The plaintiff never established the origin of his possession. The amendment of the plaint was an afterthought. The Khasra entries for 1969-1973 show Urmila Devi in possession of the lands. In 1974-1978, the Khasra entries again show Urmila Devi as the landlord. The Khasra entries for 1960- 1961 and 1974-1978 showing possession of the plaintiff were interpolations in red color ink, while the entries in the name of Urmila Devi after purchase were made in blue color ink. Hitesh Kumar and Hemraj, the son and nephew respectively, of the plaintiff were clerks in the collectorate. They were suspended for making false entries, followed by departmental enquiry and criminal prosecution. The Court Commissioner had also reported possession having been transferred pursuant to the sale deed. The plaintiff had filed an objection after which the Court Commissioner had again inspected the disputed land and filed further report in favour of the appellants. All these have not at all been considered by the High Court. Reliance was placed on M. Venkatesh & Ors. vs. Bangalore Development Authority & Ors., 2015 17 SCC 1, to contend that the adverse possession could be proved only when possession was peaceful, open, continuous and hostile.