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Wednesday, March 25, 2015

Plaintiff has to stand on his own legs by proving his case. - Adverse Possession - High Court wrongly shifted the burden of proof on the Govt./Defendant - 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).-Though the plaintiffs did file some documentary proof in the form of khasra entry in respect of some of the plots in question, for the period of 1950-1952 ( i.e. when admittedly land was allotted for one year to father of the plaintiff), but the subsequent entries for period Samvat 2013 to Samvat 2018 disclosed that the land in question was part of industrial area and recorded in favour of the Commercial Department of the State.- 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 theTehsildar. - 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. - 2015 SC MSK LAW REPORTS



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

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