[Cites 7, Cited by 0]
Chattisgarh High Court
Dilip Das vs Basant Kumari Gupta on 10 April, 2026
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
2026:CGHC:16602-DB
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
First Appeal No. 56 of 2025
1 - Dilip Das S/o Mahetar Das Aged About 53 Years R/o Village Rano, Post
Parpodi, Tahsil Devkar, District Bemetara (C.G.)
2 - Smt. Dashreet Das W/o Dildaar Das Aged About 40 Years R/o Village
Rano, Post Parpodi, Tahsil Devkar, District Bemetara (C.G.)
3 - Santu S/o Ganesh Yadav Aged About 50 Years R/o Village Rano, Post
Parpodi, Tahsil Devkar, District Bemetara (C.G.)
4 - Bishal S/o Ghasiya Sahu Aged About 62 Years R/o Village Rano, Post
Parpodi, Tahsil Devkar, District Bemetara (C.G.)
... Appellants/Plaintiffs
versus
1 - Basant Kumari Gupta W/o Murlidhar Gupta Aged About 80 Years R/o
House No. 237, Old Post Office Lane, Ward No. 41, Kasaridih, Kelabadi,
Durg, Tahsil And District Durg (C.G.)
2
2 - Yogeshwar Sonkar S/o Ballaram Sonkar Aged About 35 Years R/o
House No. 196, Bajrang Chowk, Ward No. 2, Kumhari, Tahsil Damdha,
District Durg (C.G.)
3 - Smt. Pushpa Sonkar W/o Rajeshwar Sonkar Aged About 32 Years R/o
House No. 475, Ganesh Chowk, Ward No. 5, Kumhari, Tahsil Damdha,
District Durg (C.G.)
4 - Prahlad S/o Jogi Verma Aged About 70 Years R/o Village Salhekala,
Post Udaipur, Tahsil Chuikhadan, District Rajnandgaon (C.G.)
5 - State Of Chhattisgarh Through Collector Bemetara, District Bemetara
(C.G.)
... Respondents/Defendants
(Cause-title taken from CIS)
For Appellants : Mr. P.R. Patankar, Advocate
For Respondents No. 1 to 4 : Mr. Chandresh Shrivastava, Advocate
For Respondent No. 5/State : Mr. Amit Buxy, Dy. G.A.
DB- Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sachin Singh Rajput
Judgment On Board
10.04.2026
Sanjay K. Agrawal, J.
1. Invoking appellate jurisdiction of this Court under Section 96 of the
Code of Civil Procedure, the appellants/plaintiffs have preferred
this appeal questioning the illegality, validity and correctness of the
impugned judgment and decree dated 03/01/2025 (Annexure A/1)
passed by learned Principal District Judge, Bemetara in Civil Suit
No. 5-A/2023 whereby the suit filed by the appellants/plaintiffs
seeking declaration of title on the basis of adverse possession,
permanent injunction and for declaration of sale deeds dated
23/12/2022 (Exs. P/7 and P/8) executed by respondent/defendant
No. 1 in favour of respondents/defendants No. 2 and 3,
respectively, as null and void has been dismissed finding no merit.
(For the sake of convenience, parties would be hereinafter referred
as per their status and ranking shown in the suit before the trial
Court.)
2. Plaintiffs instituted the civil suit stating inter alia that the suit land
bearing Khasra No. 284 area 10.60 acres (4.24 hectare) situated at
Village Rano, Tahsil Devkar, District Bemetara (C.G.) was lying
vacant since 1990 and as plaintiffs are marginal agriculturists and
are engaged in agricultural work, taking advantage of the suit land
lying vacant and unused, they undertook peaceful possession and
started cultivating crops in the said suit land, which was well within
the knowledge of defendant No. 1 as well as other villagers yet
defendant No. 1 or the members of her family never made any
complaints, oral or written, and never raised any objection, as such,
plaintiffs No. 1, 3 and 4 remained in continuous and uninterrupted
possession of the suit land for the last 33 years and plaintiff No. 2
remained in continuous and uninterrupted possession of the suit
land for the last 33 years and at present also, plaintiffs are
possession-holders of the suit land. However, on 23/12/2022,
defendant No. 1 alienated the suit land to defendants No. 2 and 3
by bisecting it into two parts and executed sale deeds (Exs. P/7 and
P/8) ignoring the fact that plaintiffs have been in long and
continuous possession of the suit land and they have already
perfected their title by way of adverse possession. As such, decree
for declaration of title through adverse possession, permanent
injunction and declaration of sale deeds dated 23/12/2002 (Exs.
P/7 and P/8) be passed in their favour.
3. Defendant No. 1 filed her written statement and while opposing
the plaint averments, she has further stated that she is an old and
ailing woman and after the death of her husband Murlidhar Gupta,
the suit land was being looked after by her son-in-law namely
Balram Gupta (DW-1) and she has executed registered sale deeds
dated 23/12/2022 (Exs. P/7 and P/8) and sold the suit land to
defendants No. 2 and 3.
4. Defendants No. 2 to 4 have jointly filed their written statement and
they have also opposed the plaint averments and stated further
that defendant No. 1 is the exclusive title and possession holder of
the suit land and accordingly, she had the right to alienate the suit
land in favour of defendants No. 2 and 3 and pursuant to the
alienation, defendants No. 2 and 3 have been in possession of the
suit land and they have leased it to defendant No. 4 who carries
out agricultural work in the suit land. As such, the suit filed by the
plaintiffs is liable to be dismissed.
5. After pleading of the parties, learned trial Court framed three
issues and answered them as stated below :-
क्र. वादप्रश्न निष्कर्ष
1. क्या वादी का वादभूमि पर प्रतिकू ल कब्ज़ा है ? "प्रमाणित नहीं"
2. क्या वादी प्रतिकू ल कब्जे के आधार पर वादभूमि "प्रमाणित नहीं"
पर स्वामित्व की घोषणा का अधिकारी है ?
3. सहायता एवं व्यय ? "वाद खारिज"
6. In sum and substance, the trial Court held that since plaintiffs have
failed to prove the ingredients of adverse possession, therefore,
they are not entitled for obtaining decree for declaration of title by
way of adverse possession and thereby, dismissed the suit of the
plaintiffs.
7. Mr. P.R. Patankar, learned counsel for the appellants/plaintiffs,
would submit that the trial Court is absolutely unjustified in
dismissing the suit filed by the plaintiffs by recording a finding
which is perverse and contrary to the record. The plea of adverse
possession taken by the plaintiffs has duly been established by
them by leading oral evidence in the shape of testimonies of
plaintiff No. 1 Dilip Das (PW-1), Vishal Sahu (PW-2) and Mansharam
Sahu (P.W.-3), therefore, the impugned judgment and decree
passed by the trial Court is liable to be set aside and plaintiffs are
entitled for decree as claimed by them.
8. Per contra, Mr. Chandresh Shrivastava, learned counsel for
respondents/defendants No. 1 to 4, would support the impugned
judgment and decree passed by the trial Court and submit that
none of the ingredients of adverse possession, as laid down by
their Lordships of the Supreme Court in the matter of Karnataka
Board of Waqf v. Government of India and Others 1, further
followed with approval in the matter of Ravinder Kaur Grewal v.
Manjit Kaur and Others2, has been established by the plaintiffs and
moreover, all the documentary evidence led by the plaintiffs
themselves shows the title and possession of defendant No. 1 over
the suit land, as such, she has rightly alienated the suit land in
favour of defendants No. 2 and 3 which has further been leased by
them to defendant No. 4 for the purpose of cultivating crops. Thus,
the suit filed by the plaintiffs has rightly been dismissed by the trial
Court, which also deserves acceptance by this Court.
1 (2004) 10 SCC 779
2 (2019) 8 SCC 729
9. We have heard learned counsel for the parties, considered their
rival submissions made herein-above and went through the records
with utmost circumspection.
10. The point for determination that arises in this appeal is, "whether
the trial Court is justified in holding that plaintiffs have failed to
prove the plea of adverse possession taken by them and therefore,
they are not entitled to decree for declaration of title based on
adverse possession, permanent injunction and declaration of sale
deeds dated 23/12/2022 (Exs. P/7 and P/8) executed by defendant
No. 1 in favour of defendants No. 2 and 3 as null and void ?"
11. In order to answer the aforesaid point for determination and to
find out the correct test in relation of title by way of doctrine of
adverse possession, it would be profitable to notice the relevant
statutory provision, necessary ingredients and the principle
underlying the doctrine of adverse possession.
12. Article 65 of the Indian Limitation Act, 1963 states as under :-
Description of Suit Period of Time from which
limitation period begins to run
65. For possession of immovable Twelve years When the possession
property or any interest therein of the defendant
based on title. becomes adverse to
Explanation. - For the purposes the plaintiff.
of this article -
(a) where the suit is by a
remainderman, a reversioner
(other than a landlord) or a
devisee, the possession of the
defendant shall be deemed to
become adverse only when the
estate of the remainderman,
reversioner or devisee, as the
case may be falls into
possession;
(b) where the suit is by a Hindu
or Muslim entitled to the
possession of immovable
property on the death of a
Hindu or Muslim female, the
possession of the defendant
shall be deemed to become
adverse only when the female
dies;
(c) where the suit is by a
purchaser at a sale in execution
of a decree when the
judgment-debtor was out of
possession at the date of the
sale, the purchaser shall be
deemed to be a representative
of the judgment-debtor who
was out of possession.
13. A close reading of the afore-stated provision would show that
when the suit is based on title for possession, once the title is
established on the basis of relevant documents and other
evidences, unless the defendant proves adverse possession for the
prescribed period, the plaintiff cannot be non-suited and burden is
on the defendant to plead and prove that he was in adverse
possession for 12 years before the date of suit and starting point of
limitation is the date when the possession of the defendant
became adverse to the plaintiff.
14. The Supreme Court, in the matter of Karnataka Board of Wakf
(supra), 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.
15. The principle of law laid down in Karnataka Board of Wakf (supra)
has been followed with approval in Ravinder Kaur Grewal (supra)
and their Lordships in paragraphs 60, 61 & 62 of the report laid
down the principles and clearly held that the adverse possession
requires all the three classic requirements to co-exist 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 co-exist 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 re-entry
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."
16. 1. In Ram Janmabhumi Temple Case in the matter of M. Siddiq
(Dead) Through Legal Representatives (Ram Janmabhumi Temple
Case) v. Mahant Suresh Das and others3, the Supreme Court
(Constitution Bench) has clearly held that the claim on the basis of
adverse possession amounts to acknowledgment of title of person
against whom adverse possession is claimed 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
3 (2020) 1 SCC 1
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 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. ..."
16.2. Their Lordships further relying upon the judgment of the
Supreme Court in Karnataka Board of Wakf (supra) 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.
16.3. 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)
4 Pilla Akkayyamma v. Channnappa, 2015 SCC OnLine Kar 8226 : ILR 2015 Kar 3841
"27. The concept of adverse possession contemplates a
hostile possession i.e. a 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 three-
Judge 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. ..."
17. Coming to the facts of the present case in light of the principles of
law laid by their Lordships of the Supreme Court in the matters of
Karnataka Board of Wakf (supra) followed in Ravinder Kaur
Grewal (supra) and Ram Janmabhumi Temple Case (supra), it is
quite vivid that it was incumbent upon the plaintiffs to plead and
establish the date on which they came into possession, what was
the nature of their possession and whether the factum of
possession was known to the defendants; and further that they are
in peaceful possession of the suit land for the statutory period of
12 years, but surprisingly, that has not been pleaded and
established. We shall consider the evidence led by the plaintiffs,
documentary as well as oral, one-by-one.
5 (2019) 8 SCC 729 : (2019) 4 SCC (Civ) 453
18. So far as documentary evidence on record is concerned, 'kishtbandi
khatauni' or 'the register of landholdings' (Ex. P/1 and P/2) for the
year 2012-13 has been filed on behalf of the plaintiffs wherein the
name of defendant No. 1 i.e. Basant Kumari Gupta has been
mentioned as title-holder as well as possession-holder in all the
entries. Similarly, 'kishtbandi khatauni' or 'the register of
landholdings' as well as khasra panchshala (Ex. P/3, P/4, P/5 and
P/6) for the year 2022-23 have been filed by the plaintiffs wherein
pursuant to the alienation made by defendant No. 1, the names of
defendant No. 2 and defendant No. 3 namely Yogeshwar Sonkar
and Smt. Pushpa Sonkar have been recorded as title and
possession-holders of the suit land. Exhibits P/7 and P/8 are the
sale deeds dated 23/12/2022 executed by defendant No. 1 in
favour of defendants No. 2 and 3, respectively. Rin pustika (Exs.
P/9C and P/10C) have also been brought on record by the plaintiffs
in which defendant No. 1's name has been recorded as title-holder.
As such, there is no documentary evidence available on record to
establish that at the relevant point of time, plaintiffs were in
possession of the suit land and therefore, the plaintiffs have failed
to prove the plea of adverse possession by leading documentary
evidence.
19. Now, we will deal with the oral evidence led by the plaintiffs. So far
as the statement of plaintiff No. 1 Dilip Das (PW-1) is concerned, it
is controverted and does not match with the plaint as in the plaint
itself, the plaintiffs have stated that since the suit land was lying
vacant, they started using the land for the purpose of cultivating
crops, however, in his cross-examination, Dilip Das (PW-1) has
stated that he is not aware as to whose land he is in possession of
exactly. He has also failed to disclose the boundary of the suit land
and has also admitted that after the alienation of the suit land by
defendant No. 1 in favour of defendants No. 2 and 3, defendant No.
4 carries out agricultural work in the suit land.
20. Similarly, Vishal Sahu (PW-2), in his statement before the Court, has
failed to state the area of the land which he is in possession of
except stating approximately 2.5 acres. He has only stated that he
used to sow crops in the suit land and at present, agricultural work
is being carried out by defendant No. 4.
21. Lastly, Mansharam Sahu (PW-3) has also failed to state that on
what date they came to be in possession of the suit land and
further failed to disclose the bhoomiswamis of the adjoining lands.
22. Now, so far as defendants' witness is concerned, defendant No. 1's
son-in-law namely Balram Singh Gupta (DW-1) has been examined
as power of attorney holder and he has clearly stated in his
statement before the Court that since her mother-in-law i.e.
defendant No. 1 has become old and weak, he has been looking
after the suit land and has been performing agricultural work
therein for the last 12-13 years and after selling the suit land to
defendants No. 2 and 3, they have leased the suit land to
defendant No. 4, who is cultivating crops at present.
23. Thus, from a careful perusal of the record, it is quite evident that
there is no oral as well as documentary evidence available on
record to show that plaintiffs have been able to establish the plea
of adverse possession. As such, it is hereby held that necessary
ingredients to establish the plea of adverse possession have not
been established and plaintiffs have failed to establish that on what
date they came into possession, what was the nature of their
possession and whether the factum of possession was known to
the plaintiff except for simply saying that since the suit land was
lying vacant, they took its possession and starting cultivating crops
and even they have not clearly acknowledged the title of defendant
no. 1 over the suit land which was absolutely necessary for
establishing their plea of adverse possession. The plaintiffs have
also failed to establish that their alleged adverse possession has
ripened into ownership rights by applying the correct doctrine. We
are of the considered opinion that the trial Court has rightly
dismissed the suit filed by the plaintiffs finding no merit and we
hereby affirm the findings recorded by the trial Court.
24. Accordingly, this appeal, being devoid of merits, is hereby
dismissed leaving the parties to bear their own cost(s).
25. A decree be drawn-up accordingly.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
Harneet
