Chattisgarh High Court

Dhela Bai And Anr vs Sewaram Sahu on 22 June, 2021

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                                                                      NAFR
            HIGH COURT OF CHHATTISGARH AT BILASPUR
                    Second Appeal No. 388 of 2006


   1. Shersingh (died) through Lrs. :

     (I). Smt. Dhela Bai, Wd/o Late Shersingh, Aged
     about 60 years.

     (ii).    Tiharuram        Pal,       S/o   Late   Shersingh,    Aged
     about 35 years.

     Both     are   R/o     Village         Samonda,    Tahsil     Arang,
     Distt. Raipur, Chhattisgarh.

                                           Appellants/Defendants

                                  Versus

     Sewaram Sahu S/o Banshilal Sahu, Aged about 38
     years, R/o Village Samonda, Tahsil Arang, Distt.
     Raipur, Chhattisgarh.

                                            Respondent/Plaintiff

For Appellants : Mr. A.P. Sharma, Advocate For Respondent : Mr. Y.C. Sharma, Sr. Advocate with Mr. Anil Gulati, Advocate

Hon'ble Shri Justice Sanjay K. Agrawal Judgment on Board 22/06/2021

1. This second appeal preferred by the

appellant/defendant (now his LRs.) was admitted

for hearing on 25/11/2013 by formulating the

following two substantial questions of law :

"1) Whether the appellants have been able to prove their case for title over the suit premises by way of adverse possession ?

2) Whether the findings arrived at by the two Courts below are perverse or not ?" [For the sake of convenience, the parties will

hereinafter be referred to as per their status

and ranking given in the plaint before the trial

Court.]

2. The suit property was originally held by one

Ramdulari Dewangan who sold the suit property in

favour of the plaintiff by sale deed dated

12/02/2001 (Ex. P/4) and delivered its peaceful

possession thereof. Thereafter, plaintiff

brought a suit for possession based on title

against the defendant stating inter alia that

she be granted decree for possession as she is

the titleholder of the suit property.

3. The sole defendant filed his written statement

stating inter alia that he is in possession of

the suit property for the last 15 years, as

such, he has perfected his title over the suit

property by way of adverse possession,

therefore, plaintiff's suit deserves to be

dismissed.

4. Learned trial Court, after appreciating the oral

and documentary evidence on record, decreed the

suit in favour of the plaintiff by its judgment

and decree dated 05/04/2006 holding that

plaintiff is the titleholder of the suit

property and defendant is a trespasser in her

land, therefore, plaintiff is entitled for

decree for possession which was also affirmed by

the first appellate Court in the appeal

preferred by the defendant vide its impugned

judgment and decree dated 10/07/2006 against

which this second appeal under Section 100 of

CPC has been preferred by the defendant (now his

LRs.) in which two substantial questions of law

have been framed and set out in the opening

paragraph of this judgment.

5. Mr. A.P. Sharma, learned counsel for the

appellants/LRs. Of defendant, would submit that

though defendant has not taken the plea of

perfecting his title by way of adverse

possession, yet he is in possession of the suit

property for the last 15 years, therefore, he is

not a trespasser on plaintiff's land and he

cannot be evicted by the plaintiff, as such,

both the Courts below have erred in granting

decree for possession in favour of the plaintiff

and the instant appeal be allowed by setting

aside the judgment and decree of both the Courts

below.

6. Mr. Y.C. Sharma, learned senior counsel

appearing for the respondent/defendant, would

vehemently submit that plaintiff has rightly

been held to be the titleholder of the suit

property by both the Courts below on the

strength of sale deed dated 12/02/2001 (Ex. P/4)

executed by Ramdulari Dewangan in her favour.

The defendant further did not take the plea of

perfecting his title by way of adverse

possession and merely because he has been in

possession of the suit property for the last 15

years, his title cannot be perfected by way of

adverse possession until and unless an express

plea has been taken and it has been proved by

leading appropriate evidence, as such, the

judgment and decree passed by the first

appellate Court affirming the judgment and

decree of the trial Court decreeing the suit of

the plaintiff deserves to be maintained and the

instant appeal deserves to be dismissed.

7. I have heard learned counsel for the parties,

considered their rival submissions made herein

above and went through the records with utmost

circumspection.

8. Both the Courts below have clearly held that

plaintiff is the titleholder of the suit

property having purchased it from the erstwhile

titleholder Ramdulari Dewangan by sale deed

dated 12/02/2001 (Ex. P/4) and it has further

been held that though defendant is in possession

of the suit property for the last 15 years, but

since the plea of adverse possession has not

been taken and proved by the defendant, it

cannot be held that he has perfected his title

over the suit property by way of adverse

possession and decree for possession has been

granted in favour of the plaintiff.

9. Now, the question is, whether the defendant has

made out a case for perfection of his title over

the suit property by way of adverse possession ?

10. Three classic requirements of adverse possession

are contained in nec vi, nec clam and nec

precario namely, adequate in continuity,

adequate in publicity and adverse to a

competitor, respectively. The abovestated

requirements are required to be pleaded and

established to get a decree on the basis of

adverse possession.

11. The Supreme Court in the matter of Karnataka

Board of Wakf v. Government of India and others 1

laid down the principles of law which a person

claiming adverse possession should demonstrate

by holding that 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. Their Lordships

further held that 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.

12. The principle of law laid down in Karnataka

Board of Wakf (supra) has been followed with

approval in Ravinder Kaur Grewal and Others v.

Manjit Kaur and Others2 and their Lordships in

paragraphs 60, 61 & 62 of the report laid down

1 (2004) 10 SCC 779 2 (2019) 8 SCC 729

the principles and clearly held that the adverse

possession requires all the three classic

requirements to coexist at the same time,

namely, nec vi i.e. adequate in continuity, nec

clam i.e. adequate in publicity and nec precario

i.e. adverse to a competitor, in detail of title

and his knowledge, and observed as under:

"60. The adverse possession requires all the three classic requirements to coexist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser's long possession is not synonymous with adverse possession. Trespasser's possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and large the concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession.

61. Adverse possession is heritable and there can be tacking of adverse possession by two or more persons as the right is transmissible one. In our opinion, it confers a perfected right which cannot be defeated on reentry except as provided in

Article 65 itself. Tacking is based on the fulfillment of certain conditions, tacking may be by possession by the purchaser, legatee or assignee, etc. so as to constitute continuity of possession, that person must be claiming through whom it is sought to be tacked, and would depend on the identity of the same property under the same right. Two distinct trespassers cannot tack their possession to constitute conferral of right by adverse possession for the prescribed period.

62. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years' period of adverse possession is over, even owner's right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner's title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other

Articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit."

13. The Supreme Court (Constitution Bench) in the

matter of M. Siddiq (Dead) through Legal

Respresentatives (Ram Janmabhumi Temple Case) v.

Mahant Suresh Das & Others3 has clearly held

that the claim on the basis of adverse

possession amounts to acknowledgement of title

of person against whom adverse possession is

claimed and the plea of adverse possession has

to be expressly taken and it has to be proved

and observed as under :

"1142. A plea of adverse possession is founded on the acceptance that ownership of the property vests in another against whom the claimant asserts a possession adverse to the title of the other. Possession is adverse in the sense that it is contrary to the acknowledged title in the other person against whom it is claimed. Evidently, therefore, the plaintiffs in Suit No.4 ought to be cognizant of the fact that any claim of adverse possession against the Hindus or the temple would amount to an acceptance of a title in the latter. Dr Dhavan has submitted that this plea is a subsidiary or alternate plea upon which it is not necessary for the plaintiffs to stand in the event that their main plea on title is held to be established on evidence. It becomes then necessary to assess as to whether the claim of adverse possession has been established. 1143. A person who sets up a plea of adverse possession must establish both 3 (2020) 1 SCC 1

possession which is peaceful, open and continuous possession which meets the requirement of being nec vi nec claim and nec precario. To substantiate a plea of adverse possession, the character of the possession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. These requirements have to be duly established first by adequate pleadings and second by leading sufficient evidence. Evidence, it is well settled, can only be adduced with reference to matters which are pleaded in a civil suit and in the absence of an adequate pleading, evidence by itself cannot supply the deficiency of a pleaded case. ..."

14. Their Lordships further relying upon the

judgment of the Supreme Court in the matter of

Karnataka Board of Wakf (supra) have held that

the ingredients in terms of that judgment must

be set up in the pleadings and proved in

evidence. There can be no proof sans pleadings

and pleadings without evidence will not

establish a case in law. Their Lordships also

emphasized the need for making clear averment of

adverse possession as under :

"1154. In a judgment rendered in 2015, one of us (Abdul Nazeer, J.) as a Single Judge of the Karnataka High Court succinctly identified and laid down the prerequisites of a claim to adverse possession in the following terms: (Pilla Akkayyamma case4, SCC OnLine Kar Para 27) "27. The concept of adverse possession contemplates a hostile possession i.e. a

4 Pilla Akkayyamma v. Channnappa, 2015 SCC OnLine Kar 8226 : ILR 2015 Kar 3841

possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person, who does not acknowledge others' rights but denies them. Possession implies dominion and control and the consciousness in the mind of the person having dominion over an object that he has it and can exercise it. Mere possession of the land would not ripen into possessory title. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. Occupation only implies bare use of the land without any right to retain it. In order to constitute adverse possession, there must be actual possession of a person claiming as of right by himself or by persons deriving title from him. To prove title to the land by adverse possession, it is not sufficient to show that some acts of possession have been done. The possession required must be adequate in continuity, in publicity and in extent to show that it is adverse to the owner. In other words, the possession must be actual, visible, exclusive, hostile and continued during the time necessary to create a bar under the statute of limitation.

30. In a suit falling under Article 65 of the Limitation Act, plaintiff must establish his title to the property. He need not prove that he was in possession within 12 years. If he fails to prove his title, the suits fails, and the question of adverse possession does not arise in such a case. When the plaintiff has established his title to a land, the burden of proving that he has lost that title by reason of the adverse possession of the defendant lies upon the defendant. If the defendant fails to prove that he has been in adverse possession for more than 12 years, the plaintiff is entitled to succeed simply on the strength of his title. A person alleging that he has become owner of immovable property by adverse possession must establish that he

was in possession of the property peaceably, openly and in assertion of a title hostile to the real owner. Stricter proof is required to establish acquisition of title by adverse possession for the statutory period."

(emphasis supplied)

1155. In Ravinder Kaur Grewal v. Manjit Kaur5, a threeJudge Bench of this Court of which one of us, Abdul Nazeer, J. was a part, further developed the law on adverse possession to hold that any person who has perfected their title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In this view, adverse possession is both a sword and a shield.

1156. The plaintiffs have failed to adopt a clear stand evidently because they are conscious of the fact that in pleading adverse possession, they must necessarily carry the burden of acknowledging the title of the person or the entity against whom the plea of adverse possession has not been adequately set up in the pleadings and as noted above, has not been put forth with any certitude in the course of the submissions. Above all, it is impossible for the plaintiffs to set up a case of being in peaceful, open and continuous possession of the entire property. ..."

15. Reverting to the facts of the case in light of

the aforesaid judgments of the Supreme Court, it

is quite vivid that defendant was though in

possession of the suit property for a fairly

long time, but he has failed to plead and

establish the plea of adverse possession by

adhering to the three classic requirements of

adverse possession as stated above. In that view 5 (2019) 8 SCC 729 : (2019) 4 SCC (Civ) 453

of the matter, both the Courts below are

justified in decreeing the suit of the plaintiff

holding that plaintiff is the titleholder of

the suit property and defendant, having not