It is settled principle of law that in respect of relief claimed by a plaintiff, he has to stand on his own legs by proving his case.
Land in
question bearing survey Nos. 376 to 400 and 401 to 411, measuring 45
bigha 10 biswa situated at village Dinapur, Tehsil and District
Gwalior, was acquired by the State Government for setting up
industrial area, in the year 1946.
However, the industrial area could
not be set up and a part of the land appears to have been given on
lease to plaintiff-respondent Nomi Singh on 11.5.1951 for a period of
one year.
In the year 1978 Tehsildar (Nazul), Gwalior, vide order
dated 21.11.1978, passed in case No. 560A/68-74-75, declared the
respondents as encroachers over the land in question.
On the other hand, the case of the respondents (plaintiffs) is that
the above mentioned land belonged to one Zamindar Srilal, who granted
oral patta to Surjan Singh (father of respondent No. 1 Nomi Singh),
and he was recorded as 'Maurusi Kashtkar' (hereditary tenant) in the
revenue record.
As such, on death of Surjan Singh, name of plaintiff
Nomi Singh was entered in the revenue record as 'pakka krishak'.
But,
later it was found that the names of the plaintiffs were recorded in
the column No. 12 of Khasra, i.e. in the column relating to entry of
the encroachers.
Hence, they filed suit in 1991 numbered as Suit No. 144A of 1991.
Aggrieved by the orders of the trial court and that of the first
appellate court, Second Appeal No. 256 of 2005 was instituted by the
plaintiffs (present respondents) before the High Court.
After hearing
the parties the High Court held that the courts below should have
taken adverse inference against the defendant as it has failed to
produce original khasra entries from Samvat 2005 onwards.
It further
held that the courts below should have presumed that the plaintiffs
have automatically become 'Bhumiswamis' after enforcement of Madhya
Pradesh Land Revenue Code, 1959, and as such allowed the second
appeal, and set aside the judgment and decree passed by the first appellate court, and that of the trial court.
It is contended that the
plaintiffs failed to establish the requisites of adverse possession
pleaded in the amended plaint and they cannot be said to have acquired
the title of 'Bhumiswami' by virtue of Madhya Pradesh Land Revenue
Code.
per contra the plaintiffs submitted that the land
in question belonged to the then Zamindar, before Zamindari Abolition,
who granted oral patta in favour of Surjan Singh (father of plaintiff
Nomi Singh). It is further pointed out that there was an entry of
'Pukhta Maurusi' in favour of Surjan Singh. On these grounds, on
behalf of the respondents, an attempt was made to defend the impugned
decree.
High Court has wrongly shifted burden of proof on the
defendants.
In the middle of paragraph 12, while giving its reasons
to disagree with the decree passed by the courts below, the High Court
has observed as under: -
"It was respondent-defendant who has challenged the possession
of plaintiff and his father on the ground of khasra entries,
therefore, burden of proving the fact that allegations made by
the defendant are correct, is on the defendant, in which
defendant has failed. Further it has been admitted before the
Court that entry of plaintiffs in the khasra record is as
encroacher, but no such khasra entries have been produced by
them...."
In the middle of paragraph 15 of the impugned decree, again the High
Court observes: -
"Further the defendant has failed to prove the possession of
plaintiff and his father was that of an encroacher. Defendant
has further failed to prove the khasra Nos. 1950 to 1952 to be
wrong or that patta given to the plaintiffs, was only for one
year,...."
The above observations made by the High Court, show that it has
erroneously placed onus of proof of title and possession of the
plaintiffs, on defendant.
The High Court has completely ignored the
fact that the plaintiff after losing case in the first round from
trial court, got amended the plaint and took plea of adverse
possession, on which matter was remanded to the trial court, and after
hearing parties suit was again dismissed, which was upheld by the
first appellate court.
The above approach of the High Court is
against the law laid down by this Court, and in our opinion, it erred
in law in reversing the decree passed by the trial court and that of
the first appellate court by shifting burden of proof on the
defendant.
From the perusal of the papers on record, it appears that though the
plaintiffs have pleaded that Surjan Singh was granted oral patta by
erstwhile Zamindar Srilal, but it has not been averred in the plaint
as to in which year or Samvat such an oral patta was given to Surjan
Singh (father of plaintiff Nomi Singh).
Apart from this, the trial court and the first appellate court have
rightly found that to succeed on the plea of adverse possession, the
plaintiffs should have disclosed and proved as to when the adverse
possession started and when it was perfected by them, particularly
when they were declared encroachers way back in the year 1978 by the
Tehsildar.
As such, in our opinion, the plaintiffs have failed to
prove their case on the grounds taken by them in the plaint. - 2015 S.C. msklawreports
