S.K. Gangele, J.
1. The appellants defendants have filed this appeal against the judgment and decree passed in Civil Appeal No. 173-A/94 reversing the judgment and decree passed in Civil Suit No. 24-A of 1987, dated 21-3-1989.
2. The appeal was admitted for hearing vide order dated 18-8-2001 on the following substantial question of law:
Whether Lower Appellate Court was justified in reversing the decree holding therein that plaintiff has perfected his title by adverse possession in the absence of pleading of adverse possession by plaintiff?
3. The plaintiffs filed a suit for declaration and permanent injunction and pleaded that he is the owner of land Survey No. 719 having an area 1.014 situated at Village Sonera Tehsil Ashok Nagar, hereinafter called the suit land. The land was lying Paddat (without agriculture). At the time of Zamindari period in Samvat 2007 his father took the possession of the land and started cultivation and since then his father and after the death of his father plaintiff had been in possession of the suit land. He perfected his title on the basis of adverse possession and defendants tried to dispossess him on 11-7-1979, hence, he filed the suit for injunction and declaration.
4. The defendant Nos. 1 to 5 in their written statement denied the pleadings of the plaintiff and also denied the fact that he and his father was in possession of the suit land. They pleaded that they are the owner of the suit land and in possession of the suit land, name of the defendants Mishrilal was recorded as owner and Bhoomiswami of the suit land. It has further been pleaded in the written statement that the plaintiff with the connivance of the Patwari Pehalvansingh recorded his possession over the suit land in Khasra entries. The defendant also submitted a complaint to this effect of Patwari Pehalwan Singh to higher authorities. The father of Mishrilal was Zamindar of the land and defendant since the time of Zamindari had been cultivating the land.
5. The Trial Court after appreciation of evidence, documentary and oral, has held that the plaintiff failed to prove his adverse possession over the suit land and plaintiff was not in possession over the suit land and dismissed the suit. Plaintiff also filed an application for injunction during the pendency of the suit and that application has also been dismissed vide order dated 29-2-1980 by the Trial Court by holding that prima facie it was not found that the plaintiff was in possession over the suit land. Against the judgment of the Trial Court, plaintiff filed first appeal, which was also dismissed by the learned Judge vide judgment dated 26-11-1994 passed in Civil Appeal No. 173-A/94. Thereafter the plaintiff filed a second appeal before this Court No. 72/95. This Court remanded back the case to the First Appellate Court with a direction to re-examine the revenue record. Thereafter the First Appellate Court allowed the appeal and decreed the suit of the plaintiff vide judgment and decree impugned in this appeal. During the pendency of the suit the plaintiff died, hence, his legal representative Nathan Singh has been brought on record and during the pendency of this appeal before this Court Nathan Singh has also died and his legal representative Ratiram has further been brought on record.
6. Learned Counsel for the appellants has submitted that the Lower Court has committed error of law in finding the possession of the plaintiff proved and adverse. As per the pleadings of the plaintiff in the plaint his possession cannot be said to be adverse possession. Learned Counsel further submitted that from the evidence it is clear that plaintiff was never in possession of the suit land for continuous period of more than 12 years and the learned First Appellate Court omitted material piece of evidence which was considered by the Trial Court. In support of the contention learned Counsel relied on the judgment of the Hon'ble Supreme Court reported in (2004) 10 SCC 779, Karnataka Board of Wakf v. Government of India and Ors. (2006) 7 SCC 570, T. Anjanppa and Ors. v. Somalingappa and Anr. Contrary to the learned Counsel for respondent No. 1 has submitted that the judgment and decree passed by the First Appellate Court is as per the law it is based on appreciation of evidence hence, findings of fact recorded by the First Appellate Court cannot be interfered in this second appeal.
7. The point of determination before this Court as per the substantial question of law is that whether the plaintiff has perfected his title on the basis of adverse possession and First Appellate Court has rightly reversed the judgment of the Trial Court. Plaintiff in Para 1 of the plaint pleaded that he is the owner and in possession of the suit land. He further pleaded that the aforesaid land was left out from cultivation as Pattad from the Zamindari period and in Samvat 2007 his father took the possession of the suit land and started cultivation since then he and his father had been cultivating the land. Defendants denied the possession of the plaintiff and his father over the suit land. They specifically pleaded that they have been cultivating the suit land from the Zamindari period and they became Bhoomiswami of the suit land and Bhoo Adhikar Pustika has also been issued in their name. From the pleadings of the plaintiff himself it is not clear that against whom the plaintiff was pleading adverse possession, if the pleading of the plaintiff is accepted then it is clear that his father was Zamindar before the abolition of Zamindari, hence from the plaint it is clear that the plaintiff himself has not pleaded that who was the owner of the suit land and against whose ownership his father had taken possession of the suit land and his possession had become adverse.
8. The Hon'ble Supreme Court , Karnataka Board of Wakf v. Government of India and Ors. has held as under with regard essential ingredients in proving adverse possession after relying the earlier judgment of the Hon'ble Supreme Court as under:
In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period (See : S.M Karim v. Bibi Sakini Parsinni v. Sukhi and D.N. Venkatarayappa v. State of Karnataka). 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 case 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 [Mahesh Chand Sharma (Dr.) Raj Kumari Sharma].
9. The Hon'ble Supreme Court further held as under with regard to plea of adverse possession and ownership of the property:
A plaintiff filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. (See S.M. Karim v. Bibi Sakina). In P. Periasami v. P. Periathambi, this Court ruled that: (SCC p. 527, Para 5)
Whenever the plea of adverse possession is projected inherent in the plea is that someone else was the owner of the property.
The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar that is similar to the case in hand, this Court held : (SCC pp. 640-41, Para 4)
4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.
10. From the above principle of law laid down by the Hon'ble Supreme Court, it is clear from the pleadings of the plaintiff himself his plea of adverse possession is not sustainable in the eye of law.
11. With regard to the evidence which has been considered by the learned First Appellate Court in reversing the finding of the facts recorded by the Trial Court two sets of Khasra entries have been produced by the plaintiff and defendants Exh. P-l is Khasra Entry of Samvat 2026 filed by the plaintiff. In the aforesaid Khasra Entry in Column No. 12, Bundel Singh has been mentioned. The name of Mishrilal has been mentioned as Bhoomiswami of the land of Khasra Entry in Column No. 3. The same fact has been mentioned in Exh. P-2 Khasra Entry Samvat 2033 to 2035. Exh. P-3, which is Khasra Entry of Samvat 2018 to 2005 in the Column Nos. 14, 16 and 18, which is for amended entries, the possession of plaintiff has been mentioned. In Para 4 which is Khasra Entry of 2004 in Column No. 12 as Kaifiyat possession of the plaintiff has been mentioned. In Exh. P-5 Khasra Entry of Samvat 2011 the possession of Pyarelel has been mentioned and in Samvat 2012 and 2013 and 2020 possession of plaintiff has been mentioned. In Exh. P-6, which is Khasra Entry for Samvat 2008, sub-tenant Pyarelel has been mentioned and owners name of Pyarelal has been mentioned. The same fact has been narrated by the plaintiff and his witness (P.W. 2) Bhatiram and (P.W. 3) Ratansingh.
12. The defendants also filed the documents, copy of the Bhoo Adhikar Pustika are Exh. D.W. 1, D.W. 3 and Exh. D.W. 4 in which the name of agriculturist as Bhoomiswami and Pakka Krishik has been mentioned. Exh. D-4 the Khasra Entry of Samvat 2007 and in the aforesaid khasra entry the name of Pyarelel has been mentioned and in Column No. 3 name of Pyarelal agriculturist has been mentioned as Mishrilal in Column No. 5 and Khasra Entry Exh. D-5 of Samvat 2009 in the aforesaid Khasra Entry the name of agriculturist Mishrilal has been mentioned. Exh. D-6 is the Khasra Entry of Samvat 2023 to 2026, in the aforesaid khasra entries the name of Mishrilal has been mentioned as owner. Thereafter Exh. D-7 to D-13 are the copies of forms B-l Khatoni. In all the aforesaid documents, it has been mentioned that Mishrilal paid land revenue of Khasra No. 419. After appreciation of the evidence of the above documents and oral evidence the Trial Court has specifically held that the plaintiff failed to prove that he was in continuous possession over the suit land. It has been held by the Trial Court that in the khasra entries from Samvat 2023 to 2027 possession of plaintiff was not recorded. The Trial Court also noted that the defendant deposed in his statement that the plaintiff and his father with the connivance of Patwari recorded his name and his possession in Khasra Entry for certain period and from the Khasra entries from Samvat 2007, 2008 and 2009, it is clear that the land was vested with the Government and thereafter in Bandobast Pustika Patta was given to Mishrilal and in the Khasra Entry from Samvat 2010 to 2014 possession of the plaintiff has not been mentioned. The aforesaid findings have been reversed by the learned First Appellate Court on the ground that for certain period although the name of the plaintiff has not been recorded, however, from the Khasra Entry it is clear that he was in possession at the initial stage and subsequent stage also. The First Appellate Court has completely over looked the facts and findings of the Trial Court with regard to Khasra Entry of Samvat 2007, 2008 and 2009, 2010, 2011 and 2012 and the First Appellate Court has also not considered the fact at all that who was the owner of the suit land at the time when the plaintiff pleaded that his father took possession of suit land and against whose ownership the plaintiff pleaded adverse possession. From the evidence it is clear that the father of the plaintiff was Zamindar and the land was lying Paddat and after abolition of Zamindari it was vested with the Government and thereafter Patta of the suit land was granted to Mishrilal. On the date of filing of suit the plaintiff was not in possession over the suit land that is why his application for temporary injunction was rejected and subsequently the plaintiff took possession of the suit land in pursuance to the judgment and decree passed by the First Appellate Court. Because the First Appellate Court directed to handover the possession to the plaintiff and thereafter this Court dismissed the application of stay of the appellant vide order dated 18-8-2001 on the ground that the possession was already taken over. In my opinion, the First Appellate Court has completely over looked the evidence and findings of the Trial Court as narrated above in arriving at contrary findings. The First Appellate Court also did not consider the material evidence in holding that the plaintiff perfected his title on the basis of adverse possession that who was the owner of the suit land against which the plaintiff was claiming adverse possession and this is a serious error of law which vitiated findings on the most vital issue in the case.
13. The Hon'ble Supreme Court in , Neelakantan and
Ors. v. Mallika Begum, has held as under with regard to power of the High Court in taking different view of the question of fact:
The main contention of the learned Counsel for the appellant is that the High Court could not take a different view on question of facts. As proposition of law, the submission made on behalf of the appellant tenants cannot be faulted with. It is well settled that the High Court while considering the matter in exercise of its jurisdiction in second appeal or civil revision would not reverse the finding of fact as recorded by the Courts below. But it is not an absolute proposition. In a case where the finding is recorded without any legal evidence on the record, or on misreading of evidence or suffers from any infirmity, which materially prejudices the case of one of the parties or the finding is perverse, it would be open for the High Court to set aside such a finding and to take a different view. The fact which is to be kept in mind is that the civil proceedings were initiated by the appellant tenants as the plaintiffs praying for relief of declaration that they were the owners of the superstructure over Survey Plot No. 1303/1, which area had been declared as a slum area under Section 3 of the Act. On the same basis, relief of injunction was also claimed in view of protection provided under Section 29 of the Act. The landlady as the defendant had denied that the suit property was ever notified as a slum area under Section 3 of the Act. The landlady had further pleaded that the property in dispute lay in Survey No. 1303/13 in respect of which there was no notification under Section 3 of the Act. In view of the above position, the High Court rightly held that the burden lay upon the plaintiff tenants in their suits to establish that property in dispute lay in Survey No. 1303/1. On the other hand, it is observed by the High Court that the Courts below held that it was for the defendant landlady to prove that the property was situated in Survey No. 1303/13. The High Court in our view was right in holding that so as to be entitled to relief of injunction as prayed, the plaintiff tenants were legally required to prove by legal and cogent evidence that the property was situated in Survey No. 1303/1 is respect of which a notification was issued under Section 3 of the Act. The case of the plaintiff tenants that they were the owners of the superstructure has been found to be incorrect and the same has been disbelieved and declaration to that effect has been refused. The High Court has observed that the document Exhs. A-13 and A-14 do not speak about the suit property. There was oral evidence of P.W. 2 only saying that the property, viz., Survey No. 1303/1 was notified by the Government as a slum area, as claimed by the plaintiffs. The High Court rightly found that the plaintiffs failed to discharge the burden to prove that any declaration was issued under Section 3 of the act in respect of the property in suit, by reason of which protection could be claimed by the plaintiff tenants under Section 29 of the Act.
14. The Hon'ble Supreme Court further in , R.V.E.
Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple and Anr. has held as under with regard to Section 3 of Evidence Act, 1872:
Whether a civil or criminal case, the anvil for testing of "proved", "disproved" and "not proved", as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be "proved" when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It is the evaluation of the result drawn by the applicability of the rule, which makes the difference.
The probative effects of evidence in civil and criminal cases are not, however, always the same and it has been laid down that a fact may be regarded as proved for supposed of a civil suit, though the evidence may not be considered sufficient for a conviction in a criminal case. Best says: "There is a strong and marked difference as to the effect of evidence in civil and criminal proceedings. In the former a mere preponderance of probability, due regard being had to be burden of proof, is a sufficient basis of decision : but in the latter, especially when the offence charged amounts to treason or felony, a much higher degree of assurance is required". (Best $ 95). While civil cases may be proved by a mere preponderance of evidence, in criminal cases the prosecution must prove the charge beyond reasonable doubt. (See Sarkar on Evidence, 15th Ed., pp. 58-59.)
In the words of Denning, L.J. [Bater v. Bater (1950) 2 All ER 458 at P. 459 B-C]:
It is true that by our law there is a higher standard of proof in criminal cases than in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. So also in civil cases there may be degrees of probability. Agreeing with this statement of law, Hodson, L.J. said:
Just as in civil cases the balance of probability may be more readily tilted in one case than in another, so in criminal cases proof beyond reasonable doubt may more readily be attained in some cases than in other. [Hornal v. Neuberger Products Ltd. (1956) 3 All ER 970 at P. 977 D]
29. In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the Court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in A. Raghavamma v. A. Chenchamma AIR 1064 SC 136, there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiffs title.
15. On the basis of above discussion, I answer the substantial question of law in affirmative in favour of the appellant by holding that the Lower Appellate Court was not right in reversing the judgment and decree and finding of the Trial Court in holding that the plaintiff has proved his title on the basis of adverse possession. Consequently, judgment and decree passed by the Appellate Court is hereby set aside and the judgment and decree passed by the Trial Court is upheld. Suit of the plaintiff is hereby dismissed.
16. In my opinion, the plaintiff was in possession over the suit land after the judgment of the First Appellate Court and the legal representatives enjoyed the benefits of suit land since 2001 and were in possession of the suit land, in such circumstances, appellant is also entitled cost near about Rs. 15,000/- from the plaintiff respondents and he is directed to handover the possession of the suit land to the defendants.