Chattisgarh High Court
Dilip Kumar Mahobia And Anr vs Smt. Sumitra Rani Bagga (Deleted) ... on 13 April, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA No. 197 of 2014
(Judgment reserved on 11.03.2022)
(Judgment delivered on 13.04.2022)
1. Dilip Kumar Mahobia S/o Late Pannalal Mahobia Aged About
50 Years R/o Besides Jodhpur Marwadi Bhojnalya, Near New
Indra Market, Ward No. 10, Mahasamund, P.S., Tah. and
Distt. Mahasamund Chhattisgarh
2. Khilavan @ Munna Mahobia S/o Late Pannalal Mahobia Aged
About 42 Years R/o Beside of Jodhpur Marwadi Bhojnalya,
Near New Indra Market, Ward No. 10, Mahasamund, P.S.,
Tahsil and Distt. Mahasamund Chhattisgarh
--- Petitioners
Versus
1. Smt. Sumitra Rani Bagga (Deleted) Through Legal Heirs S/o
As Per Honble Court Order Date- 07-02-2019.
1.1 - (A) Jasbir Singh Bagga S/o Shri Krishnalal Bagga R/o
Station Road, At- Mahasamund, Tahsil And District-
Mahasamund, Chhattisgarh.
1.2 - (B) Smt. Manjit Kaur Hora W/o Shri Jitendra Singh Hora
R/o Ward No. 5, At Basna, District- Mahasamund,
Chhattisgarh.
1.3 - (C) Kuldip Singh Hora S/o Shri Krishnalal Bagga Arora
Headking Company, Bhiwapur, Tahsil- Bhiwapur,
District- Nagpur, Maharashtra. ---- Respondents
For the Appellants : Mr. Ashish Shrivastava, Sr. Advocate
with Mr. Aman Pandey, Advocate
For the respondents : Mr. Manoj Paranjpe, Advocate with
Mr. Bharat Sharma, Advocate.
DB : Hon'ble Shri Justice Goutam Bhaduri, Judge &
Hon'ble Shri Justice Deepak Kumar Tiwari, Judge
C.A.V. JUDGMENT
Per Goutam Bhaduri, J
1. The instant appeal is against the judgment and decree dated
26.11.2014 passed by the learned II Additional Judge,
Mahasamund in Civil Suit No.12-A/2014 whereby the
ejectment decree has been passed over a part of land
bearing Khasra No.1190/2/41/1 to the extent of 375 sqft by
holding that the plaintiff is entitled to get the possession of
the said part of land. Hence the appeal is by the defendants.
2. Brief facts of the case are that Sunderlal and Pannalal both
were real brothers. The defendants Dilip Kumar Mahobia,
Khilawan @ Munna Mahobia (appellants herein) are sons of
Pannalal. According to the defendants, though the suit
property bearing Kh.No. 1190/2/41/1 ad-measuring 375 sqft,
which is a part of total land of 3,000 sqft was purchased
from Ishak Ali in 1969 and the said property stands recorded
in the name of Sunderlal in revenue records but claim of
appellants was that half of sale consideration was paid by
their father Pannalal, as such, they are co-owners. The
present dispute started after legal heirs of Sunderlal, in
whose name the property was purchased, sold a part of land
bearing Kh.No. 1190/2/41/1 to the extent of 375 sqft to the
plaintiff Smt. Sumitra Rani Bagga on 09.09.2008. Thereafter,
the purchaser Sumitra Rani filed a suit for ejectment on the
ground that she is a bona fide purchaser.
3. In defence, the appellants contended that the property could
not have been sold solely by the legal heirs of Sunderlal and
raised the plea of adverse possession along-with co-
ownership. The learned court below decreed the suit filed by
Sumitra Rani, the purchaser and decree for possession was
passed.
4. Learned counsel for the appellants would submit that initially
when the sale deed was made in name of Sunderlal, certain
consideration was paid by both Sunderlal and Pannalal
jointly. He further submits that it was also pleaded that the
house was constructed on the aforesaid plot, for which, the
expenses were jointly incurred by Sunderlal and Pannalal. It
is contended that subsequently a civil suit (Ex.D-1) was filed
in 1999 by Sunderlal and his two sons i.e., Giridhar Lal
Mahobia and Vinod Mahobia for declaration and possession
against the defendants Dilip Mahobia and Khilawan @ Munna
both were sons of Pannalal (appellants herein). Later the
said suit was withdrawn in the year 2002 on the ground of
pecuniary jurisdiction to evaluate the suit property and
accordingly the suit was dismissed as withdrawn with liberty
to present it in proper format before the Competent Court
after duly evaluating the property, but eventually it was not
done. Thereafter, after 5 years, the sale was made in respect
of the same property to the plaintiff-respondent. He would
submit that the document Ex.D-7 would show that the
appellants are in possession of the disputed property and the
electric-meter was also installed in the name of Pannalal. It
is submitted that the evidence and pleadings would show
that joint consideration was paid by Pannalal and Sunderlal,
therefore, the defendants are co-owners being sons of Panna
Lal. It is submitted that the statement of Sunderlal recorded
in civil suit would show that earlier he is in occupation of the
some part of the house whereas their nephews, the
appellants are in occupation of the other part. He further
submits that the electric meter installed in the name of
Pannalal is also admitted in written statement. Therefore,
their possession had become adverse to the entire word.
5. Referring to case law laid down in Karnataka Board of
Wakf v. Govt. of India 2004 10 SCC 779 , he would
submit that the evidence would show that the possession of
the appellants was peaceful, open and continuous, therefore,
it was known to the public about the continuity of assertion
that their possession was adverse to the true owner. He
would further submit that the plea of adverse possession
being the question of both facts and law, the date on which
the adverse possession pleaded is from the date of filing of
earlier civil suit, therefore, the appellants had perfected title
over the property. Reliance is also made on a decision of
Supreme Court in Ravinder Kaur Grewal v. Manjit Kaur
(2019) 8 SCC 729 and submits that since the appellants
had already perfected their title, they can defend their
possession on the basis of adverse holding.
6. Per contra, learned counsel for the respondents would
submit that as per the sale deed dated 04.04.1969, the suit
property was exclusively purchased in the name of Sunderlal
and therefore, his sons and daughter have sold the property
to plaintiff-respondent on 09.09.2008. He submits that after
purchase, a notice was sent on 15.11.2010 (Ex.P-7) and the
cause of action to file the suit was pleaded that of
09.09.2008. The document would show that the entire
ownership of the land was recorded in the name of sellers.
He further submits that in the written statement, an
inconsistent plea has been taken that they are the co-owners
and thus the entire defence is based on the plea of co-
ownership but at the same time, the alternate plea of
adverse possession has also been taken. He further submits
that it is not made clear that on which date the appellants
were dispossessed and what is the starting point of such
adverse possession to claim the right.
7. Referring to the statement of Dilip Kumar, the appellant, he
would submit that they have not acknowledged the title of
Sunderlal. They would submit that there is no document to
show that half of the sale consideration was paid by Pannalal
while the sale was made in favour of Sunderlal in the year
1969. He submits that admittedly the evidence would show
that the taxes were paid by Sunderlal and no document of
electricity connection is also placed. He would further
submit that the appellants herein have not filed any
application for cancellation of sale deed and the plea is not
clear as to on which date they came into possession to claim
adverse possession. He would submit that in the written
statement it is pleaded that they are co-owners, so if the co-
ownership is not proved then the alternate plea of adverse
possession cannot be raised.
8. We have heard learned counsel for the parties at length and
have also perused the documents. The respondents herein
filed a suit for ejectment of a part of purchased land of
Kh.No. 1190/2/41/1. The cause of action is said to have
arisen after the purchase of suit property was made on
09.09.2008. The sale deed (Ex.P-2) shows that Girdharlal,
Vinod Kumar and consenting party Smt. Prabha Kumari who
were sons and daughter of Sundarlal had sold certain part of
land i.e., 375 sqft to Sumitra Rani Bagga in respect of Kh.No.
1190/2/41/1. Subsequent to the purchase, her name was
recorded in revenue documents and Rin-Pustika was
prepared which are proved vide Ex.P-4 & P-5 and the tax
was also paid by the purchaser vide Ex.P-6. In para 2 of the
written statement, it is pleaded by the appellants that prior
to 12 years from execution of the sale deed, they had
perfected their title by adverse possession whereas in Para-3
of the written statement, it is pleaded that Sunderlal &
Pannalal were real brothers by relation and on 04.04.1969,
the subject property was purchased for a sale consideration
of Rs.4000/- and half-half amount was paid by each of them.
The further pleading is made that since Pannalal was in
Government Service, as such, in his name, the property was
not purchased and thereafter, the house was constructed by
Pannalal in 1972 and they had never occupied the subject
suit land as a licensee in status but as a owner. There is no
evidence on record to show that initially when the purchase
was made, the father of appellants have paid half of the
consideration. In the written statement, at one part they
have pleaded that they have become owners by virtue of
adverse possession whereas in subsequent pleading it is
stated that they are co-owners.
9. The supreme Court in Kishan Singh vs. Arvind Kumar
(1994) 6 SCC 591 has laid down that a possession of co-
owner or of a liecensee or of an agent or a permissive
possession to become adverse must be established by
cogent and convincing evidence to show hostile animus and
possession adverse to the knowledge of real owner. It is
further held that mere possession for howsoever length of
time does not result in converting the permissive possession
into adverse possession.
10. The Supreme Court further in Ram Nagina Rai Vs. Deo
Kumar (deceased) by Legal representatives (2019)
13 SCC 324 held that the plea of adverse possession and
co-ownership cannot go together. It further held that when
the defence of adverse possession is raised, the burden is on
them to prove affirmatively that the bar of limitation
prescribed under Article 65 of the Schedule of Limitation Act
1963 viz., 12 years is applicable in the matter to file a suit for
possession of immovable property based on title. It further
held that the limitation of 12 years begins when the
possession of defendants would become adverse to that of
plaintiffs. The Apex Court held that Article 65 presupposes
that the limitation starts only if the defendants prove the
factum of adverse possession affirmatively from a particular
time. It was laid down that adverse possession means a
hostile assertion i.e., a possession which is exclusively or
impliedly in denial of title of the true owner. The person who
bases his title on adverse possession must show, by clear
and unequivocal evidence, that the possession was hostile to
the real owner and it amounted to the denial of his title to
the property claimed.
11. The appellants in written statement pleaded that they are
the real owners and they heavily relied upon a document
Ex.D-1 and submits that earlier a Civil Suit No.185-A/2002
filed by Sunderlal, Girdharilal & Vinod against the present
appellants seeking declaration and possession wherein after
filing of the written statement, the amendment was preferred
and the suit was dismissed with permission to prefer it in
competent Court after due evaluation of the suit property.
Nothing was adjudicated in such suit. In the statement of
Sunderlal (the father of sellers) recorded in such suit, he
maintained the stand that he had purchased the suit
property exclusively of his own fund. Therefore, there is no
admission on behalf of Sunderlal that it was a joint
possession. It is only the plea of appellants that the property
was purchased by joint consideration.
12. While considering such plea, when co-ownership and adverse
possession are pleaded together the issue arises whether it
can be given weightage. The Supreme Court in Narasamma
Versus A. Krishnappa (dead) through L.Rs. (2020) 15
SCC 218 has observed that simultaneously the pleas on title
and adverse possession are mutually inconsistent and will
remain as contradictory pleas. In this behalf, the Court
referred to four earlier decisions, which succinctly set forth
the legal position. Paras 32, 33, 34 & 35 are relevant here
and quoted below :
"32. The question which confronts us is not the
aforesaid, but whether simultaneously a plea can be
taken of title and adverse possession i.e., whether it
would amount to taking contradictory pleas. In this
behalf, we may refer to the four judgments cited by
the learned counsel for the respondent herein, which
succinctly set forth the legal postion.
33. In Karnataka Board of Wakf vs. Union of
India (2004) 10 SCC 779 it has been clearly set out
that a plaintiff filing a title over the property must
specifically plead it. When such a plea of adverse
possession is projected, it is inherent in the nature of
it that someone else is the owner of the property. In
that context, it was observed in para 12 that ".....
The pleas on title and adverse possession are
mutually inconsistent and the latter does not begin
to operate until the former is renounced."
34. The aforesaid judgment in turn relied upon
the judgment in Mohan Lal v. Mirza Abdul Gaffar
(1996) 1 SCC 639, which observed in para 4 as under
: (SCC pp. 640-41) :
"4. As regard 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. upto completing the period of
his title by prescription nec vi, nec clam, nec
precario. Since the appellant's claim is
founded on Section 53-A, it goes without
saying that he admits by implication that he
came into possession of the 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.
35. In order to establish adverse possession, an
inquiry is required to be made into the starting point
of such adverse possession and, thus, when the
recorded owner got dispossessed would be crucial.
Please see P.T. Munichikkanna Reddy v. Revamma
(2007) 6 SCC 59."
(Emphasis supplied)
13. Therefore, the defence on which the appellant tried to stand
was on inconsistent pleas of co-ownership and adverse
possession. In order to prove adverse possession, at para 38
of Narasamma Versus A. Krishnappa (supra) the Supreme
Court further relied upon decision in Ram Nagina Rai v. Deo
Kumar (2019) 13 SCC 324 wherein it was held that when
there is permissive possession given by the owner and the
defendant claims that the same had become adverse, it is
required to be specifically pleaded and proved as to when
the possession becomes adverse in order for the real owner
to lose title 12 years hence from that time. In the entire
written statement of the appellants, it is silent about the
starting point of adverse possession.
14. In examination of the statement of defendant Dilip Kumar on
oath, the admission exists that no document has been placed
to show that half of the sale consideration was paid by
Pannalal when the property was purchased from Irshad Ali. It
is also admitted that initially the sale deed was executed in
the exclusive name of Sunderlal. Another admission further
exists in the affidavit of appellant Dilip Kumar that when the
house was constructed in 1972, the permission was granted
in the name of Sunderlal. Though the submission is made
that Pannalal used to pay half of the tax to Sunderlal, yet no
such document is placed and on the contrary, the tax
receipts were issued in the name of Sunderlal. There is no
averments as to when the hostile possession started.
15. The Supreme Court in Uttam Chand (Dead) through LRs
Versus Nathu Ram (dead) through LRs (2020) 11
SCC 263 at para 15 has relied on principles laid down by a
Constitution Bench in M. Siddiq (Ram Janmabhumi
Temple-5J) v. Suresh Das (2020) 1 SCC 1 wherein at
paras 1142-1143 it was held that the 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. At para 1143, the constitution Bench further held
that a person who sets up a plea of adverse possession must
establish both possession which is peaceful, open and
continuous possession which meets the requirement of being
nec vi nec clam and nec precario . It is further held that to
substantiate a plea of adverse possession, the character of
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. It is well settled that
evidence 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. A plea of adverse possession
seeks to defeat the rights of the true owner and the law does
not readily accept such case unless the clear pleadings with
evidence are established.
16. The evidence relied in this case is merely based on a part of
the civil suit filed by Sunderlal and his sons which has not
reached its logical conclusion and except this, nothing has
been placed on record to show that the appellants were
holding the property to the knowledge of true owner
Sunderlal and their possession had become hostile. That
apart, the plea of co-ownership has been taken which
mutually destroys the plea of adverse possession.
Therefore, in the facts and circumstances of the case, when
the sale was made to plaintiff-respondent, she would become
the owner of the suit property. The appellants have admitted
about the existence of the sale deed dated 09.09.2008
(Annexure P-2) in favour of the respondent. No counter claim
was filed for cancellation of such sale deed and even for the
sake of arguments if it is admitted that the appellants' father
Pannal paid half of the price by way of sale consideration and
claims himself to be a co-owner, the possession of co-heir
would be in law treated as possession of all the co-heirs. In
N. Padmamma Vs. S. Ramakrishna Reddy (2015) 1
SCC 417, it was held that a co-heir in possession cannot
render its possession adverse to the other co-heirs not in
possession, merely by any secret hostile animus on his own
part, in derogation of the title of his other co-heirs. In the
instant case, the appellants raised the plea of co-owner and
even if one of the co-owners has sold the property to a
stranger then in absence of challenge to such sale deed, the
plea of adverse possession in alternate cannot be
entertained.
17. In view of the foregoing discussion, we do not find any merit
in this appeal warranting interference in the judgment and
decree passed by the court below. The appeal is dismissed
accordingly. In the facts and circumstances, the parties shall
bear their own costs.
Sd/- Sd/-
GOUTAM BHADURI DEEPAK KUMAR TIWARI
JUDGE JUDGE
Rao
HEAD-NOTES
(1) The pleas on title and adverse possession
are mutually inconsistent and the latter does not begin to
operate until the former is renounced.
tc gd ,oa izfrdwy dCts ds laca/k esa fd;k x;k vfHkopu ijLij vlaxr
gks] ,slh fLFkfr esa mRrjorhZ ¼izfrdwy dCtk½ rc rd izofrZr ugha gksxk tc rd
iwoZorhZ ¼gd½ dk R;tu ugha gks tkrkA
(2) In order to establish adverse possession, an
enquiry is required to be made into starting point of such
adverse possession and when the recorded owner got
dispossessed would be crucial.
izfrdwy dCts dks izekf.kr djus gsrq] ,sls izfrdwy dCts dk izkjafHkd fcanq
ls tkWp fd;k tkuk vko';d gS rFkk ,sls dCts ds laca/k esa vfHkys[k ij ukfer
Lokeh dc ls csn[ky gqvk gS] ;g ns[kuk Hkh egRoiw.kZ gksxkA
