STATE OF MADHYA PRADESHversusNOMI SINGH AND ANOTHER

                       (2015] 3 S.C.R. 798


A                  STATE OF MADHYA PRADESH
                                  v.
                     NOMI SINGH AND ANOTHER
                    (Civil Appeal No. 3050 of2015)

B                         MARCH 24, 2015.
            [DIPAK MISRA AND PRAFULLA C. PANT, JJ.]
       Evidence- Onus to prove title an~ possession - Plaintiff
  claiming to be Bhumiswamis of the land in question on the
C basis ofkhasra entry-After losing the case in the first round
  from trial court, plaintiff amended the plaint taking plea of
  adverse possession - Matter remanded by first appellate
  court - In second round also suit dismissed and the order
  was confirmed by first appellate court- High Court in second
D appeal decreed the suit - On appeal, held: Plaintiff has to
  stand on his own legs to prove his case - The plaintiffs have
  failed to prove their case either on the claim as Bhumiswamis
  or on the ground of adverse possession - High Court wrongly
E decreed the suit by placing onus of proof of title and
  possession of plaintiffs on defendant - Suit liable to be
  dismissed.

        Allowing the appeal, the Court

F      HELD: 1. High Court has erred in law in allowing the
  second appeal and setting aside the decree passed by
  the first appellate court. In respect of relief claimed by a
  plaintiff, he has to stand on his own legs by proving his
  case. The High Court has erroneously placed onus of
G 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
H adverse possession, on which, matter was remanded
                               798
     STATE OF MADHYA PRADESH v. NOMI SINGH                   799


to the trial court, and after hearing the parties, the suit A
was again dismissed, which was upheld by the first
appellate court. The above approach of the High Court
is against the law and 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 B
defendant. [Paras 10, 12 and 15] [802-G; 803-F-H]

     2. Though the plaintiffs have pleaded that the
predecessor in interest was granted oral patta by
erstwhile Zamindar, but it has not been averred in the        C
plaint as to in which year or Samvat such an oral patta
was given. First appellate court has rightly taken note
of the fact that if the respondents (plaintiffs) were
Bhumiswamis, they could have filed the receipts of            D
payments of land revenue (Lagaan), or the receipts of
crop profi~ paid to the Zamindar. 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            E
allotted for one year to predecessor in interest 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. To succeed on the         F
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, the         G
plaintiffs have failed to prove their case on the grounds
taken by them in the plaint. [Paras 13 and 14] [804-A-F]

    CIVIL APPELLATE JURISDICTION: Civil Appeal No.
                                                              H
800         SUPREME COURT REPORTS                 [2015] 3 S.C.R.


A     3050 of2015.

          From the Judgment and Order dated 30.05.2011 of the
      High Court of M. P. at Gwalior in SA No. 256 of 2005.

B         S.K. Dubey, G.D. Singh, Sakshi KakkarfortheAppellant.

         Vikas Upadhyay, Nitin Gaur, Ananya Mishra for the
      Respondents.

          The Judgment of the Court was delivered b'y
c
          PRAFULLA C. PANT, J. 1. This appeal is directed against
  judgment and order dated 30.5.2011, passed by the High Court
  of Madhya Pradesh, Gwalior Bench, in Second Appeal No.
  256 of 2005 whereby said court alloVl(ed the second appeal
D and set aside the decree passed by VIII Additional District
  Judge, Gwalior, in Civil Appeal No. 5A of 2005, and the one
  dated 30.11.2004 passed by the trial court 01 Civil Judge Class
  II, Gwalior, in Civil Suit No. 189Aof 2004).

E        2. Heard learned counsel for the parties and perused the
      papers on record.

       3. Briefly stated, case of the appellant (defendant) is that
  land in question bearing survey Nos. 376 to 400 and 401 to
F 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-
G 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.

H
      STATE OF MADHYA PRADESH v. NOMI SINGH                           801
              [PRAFULLA C. PANT, J.]

     4. On the other hand, the case of the respondents A
(plaintiffs) is that the above m~ntioned 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 B
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. ill the column relating to
entry of the encroachers. Hence, they filed suit in 1991 C
numbered as Suit No. 144A of 1991.

      5. The trial court (in the first round before remand)
dismissed the suit vide judgment dated 17. 7 .1998. However,
said decree, passed by X Civil Judge Class-II, Gwalior, in suit D
No. 144A of 1991, was set aside by the first appellate court,
i.e., XAdditional District Judge, Fast Trek Court, Gwalior, vide
its judgment and decree dated 25.2.2002 who remanded the
matter back to the trial court, after allowing application for
amendment in the plaint moved by the plaintiffs at the first E
appellate stage.

     6. After the matter was remanded by the first appellate
court, as above, the plaint was re-numbered as suit No. 189A
of 2004. Again, after trial, the suit was dismissed by the trial F
court (this time by V Civil Judge Class-II, Gwalior) vide its
judgment and decree dated 30.11.2004. Once again the
plaintiffs approached to the first appellate court and filed Civil
Appeal No. 5A of 2005 challenging the decree dated
30.11.2004. The first appellate court (this time VIII Additional G
District Judge, Ashok Nagar, Gwalior), after hearing the parties,
dismissed the appeal.

      7. Aggrieved by the orders of the trial court and that of the
first appellate court, Second Appeal No. 256 of 2005 was               H
802         SUPREME COURT REPORTS                     (2015] 3 S.C.R.



A     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
B     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
C     the first appellate court, and that of the trial court.

       8. On behalf of the appellant (defendant), i.e., State of
  Madhya Pradesh, it is argued before us that the High Court
  has committed grave error of law in setting aside the concurrent
D decree passed by the trial court and the first appellate 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.
E           9. Per contra, learned counsel for the plaintiffs submitted
      that the land in question belonged to the then Zamindar, before
      ZamindariAbolition, who granted oral patta in favour of Surjan
      Singh (father of plaintiff Nomi Singh). It is further pointed out
F     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.

       10. We have considered the submissions of learned
G counsel for the parties. 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. On perusal of the impugned
  order passed by the High Court, this Court finds that the High
  Court has wrongly shifted burden of proof on the defendants.
H In the middle of paragraph 12, while giving its reasons to
      STATE OF MADHYA PRADESH v. NOMI SINGH                       803
              [PRAFULLA C. PANT, J.)

disagree with the decree passed by the courts below, the High A
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         B
     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              c
     them .... "

    11. In the middle of paragraph 15 of the impugned decree,
again the High Court observes: -
                                                                   D
     "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, .... "        E

     12. 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 F
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 G
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.
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804         SUPREME COURT REPORTS                    [2015) 3 S.C.R.



A       13. 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 Su~an Singh (father of plaintiff Nomi
B Singh). First appellate court has rightly taken note of the fact
  that if the respondents (plaintiffs) were Bhumiswamis, they
  could have filed the receipts of payments of land revenue
  (Lagaan), or the receipts of crop profits paid to the Zamindar.
C 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
D that the land in question was part of industrial area and recorded
  in favour of the Commercial Department of the State.

           14. Apart from this, the trial court and the first appellate
      court have rightly found that to succeed on the plea of adverse
E     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
F     case on the grounds taken by them in the plaint.

       15. For the reasons, as discussed above, we find that the
  High Court has erred in law in allowing the second appeal and
  setting aside the decree passed by the first appellate court.
G Accordingly, this appeal is allowed. The impugned judgment
  and decree dated 30.5.2011, passed by the High Court in
  Second Appeal No. 256 of 2005 is set aside and the judgment
  and decree passed by the first appellate court (VIII Additional
  District Judge, Gwalior, in Civil Appeal No. 5A of 2004),
H
       STATE OF MADHYA PRADESH v. NOMI SINGH                   805
               [PRAFULLA C. PANT, J.]

affirming judgment and decree passed by the V Civil Judge A
Class II, Gwalior, in Suit No. 189Aof2004, is restored. There
shall be no order as to costs.

Kalpana K. Tripathy                          Appeal allowed.
                                                               B