Gujarat High Court
Nandaben Dahyabhai Vasava W/O. Decd. ... vs Vrajeshkumar Kantibhai Patel on 12 August, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 300 of 2025
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2025
In R/SECOND APPEAL NO. 300 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
No
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NANDABEN DAHYABHAI VASAVA W/O. DECD. DAHYABHAI MULJIBHAI &
ANR.
Versus
VRAJESHKUMAR KANTIBHAI PATEL & ORS.
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Appearance:
MR.J P THAKKAR(7116) for the Appellant(s) No. 1,2
MR JAY SNEHAL SHAH(13391) for the Respondent(s) No. 5,6
MR SP MAJMUDAR(3456) for the Respondent(s) No. 5,6
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 12/08/2025
ORAL JUDGMENT
1. The present Second Appeal has been filed under Section 100
of the Code of Civil Procedure, 1908 ('CPC', for short) challenging
the judgment and decree dated 18.04.2025 passed by the 4 th
Additional District Judge, Vadodara in Regular Civil Appeal No.309
of 2018 whereby the judgment and decree passed by Civil Court in
Regular Civil Suit No.2366 of 1995 dated 27.09.2018 rejecting the
plaint of the plaintiff under the provisions of Order VII Rule 11 of
the CPC has been confirmed.
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2. For the sake of convenience, the parties are referred to as their
original status referred in the suit.
FACTS :
3.1 The brief facts arising in the present appeal are that the
plaintiff had filed Civil Suit No.2366 of 1995 on the ground that the
plaintiff is in possession of the suit property since more than 35
years and plaintiff is in possession of the property as owners since
1959 and that plaintiff is enjoying peaceful and vacant possession of
the suit property without any obstruction.
3.2 In the plaint, the plaintiff has also stated that father-in-law of
the plaintiff has made construction in suit premises and without any
obstruction, the plaintiff has been occupying the premises and earlier
the father-in-law and husband of the plaintiff were residing and
occupying the premises as owners of the suit premises. At the time
of filing of the suit, there was no dispute that defendant nos.1 and 2
are owners of the property and are residing at Mumbai and as on
28.11.1995 the defendant threatened to dispossess the plaintiff, he
has filed the suit. It is also the case of the plaintiff that father-in-law
and the husband of the plaintiff expired and as the defendants are
threatening to dispossess from the suit property, the plaintiff had
filed suit for reliefs that defendants and their agents may not cause
any obstruction, hindrance to the plaintiff's peaceful possession of
the suit property and the defendants may not obstruct the plaintiff
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and may remove the gate from the suit premises and also to declare
that plaintiffs are owners by way of adverse possession.
3.3 During the pendency of the suit, sale-deeds were executed in
the year 2002 in favour of defendant nos.5 and 6 and amendment
application was filed for challenging the said sale-deeds executed in
the year 2002 and said amendment application was filed in the year
2013 and the trial Court allowed the said amendment application
vide order dated 18.07.2013. After considering the plaint and the
documentary evidence annexed with the plaint, wherein there are no
averments to the effect that when was the possession of the plaintiff
turned hostile and looking to the documents more particularly
document produced vide Exh.4/5 with the plaint wherein it has been
established that father-in-law of the plaintiff was a servant of the
original owners and was neither the tenant of the premises, and the
fact that plaintiff has challenged the sale-deeds executed in the year
2002 in favour of defendant nos.5 and 6, in the year 2013, the trial
Court rejected the plaint under the provisions of Order VII Rule 11
of the CPC by an order dated 27.09.2018.
3.4 Aggrieved by the said order passed below Exh.1, the plaintiff
filed Regular Civil Appeal and after re-appreciating the facts and
considering the plaint and documents produced along with the plaint,
the first appellate Court dismissed the said appeal and confirmed the
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judgment and decree passed by the trial Court in Regular Civil Suit
No.2366 of 1995 and hence, the present Second Appeal.
SUBMISSION OF THE PLAINTIFF:-
4.1 Learned advocate for the plaintiff has mainly argued that
considering the plaint and documentary evidence, the trial Court
could not have rejected the plaint under the provisions of Order VII
Rule 11 of the CPC.
4.2 Learned advocate for the plaintiff has also argued that civil
suit is filed in the year 1995 and the contention that the plaint is
barred by law, having not been raised by the parties, the trial Court
could not have suo motu decided the same without any application
and looking to the fact that civil suit is of the year 1995, the trial
Court could not have rejected the plaint in the year 2018.
4.3 It has been argued by the learned advocate for the plaintiff that
looking to the facts of the present case, it was the case of the
plaintiff, that the plaintiff is in possession of the property, without
any obstruction and hindrance since more than 35 years and said fact
is in knowledge of the defendant. The defendants have also not filed
any suit seeking possession of the suit property and therefore also
the said relief could not be said to be barred by law.
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4.4 Learned advocate for the plaintiff has argued that looking to
the written statement filed by defendants, the defendants admitted
that plaintiffs are in possession of the property and in view of the
fact that the plaintiff is in continuous possession of the suit property
for last 35 years before institution of the suit, the defendant cannot
dispossess the plaintiff without due process of law.
4.5 Learned advocate for the plaintiff has argued that while
passing the order under Order VII Rule 11, the trial Court can only
consider the facts stated in the plaint and the documents annexed
with the plaint and from the said fact, the plaintiff has nowhere
stated that plaintiff is permissive user of the suit premises and,
therefore, trial Court and the appellate Court have taken into
consideration the written statement filed by the defendants vide
Exh.205 and therefore also judgment and decree passed by the trial
Court and the appellate Court are required to be quashed and set
aside.
4.6 The entire case of the plaintiff revolves on the fact that
plaintiff has come forward with the case that the plaintiff has
claimed title by way of adverse possession and, therefore, unless and
until the oral evidence is taken, the trial Court could not have
rejected the plaint.
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4.7 Learned advocate for the plaintiff has also argued that even if
it is considered that the plaintiff is tresspasser in the suit property,
the fact that the plaintiff remained in possession openly, peacefully
and continuously, he becomes the owner by way of adverse
possession.
4.8 Learned advocate for the plaintiff has also argued that trial
Court and the appellate Court could not have relied on the
documents, more particularly Exh.4/5, which states that the father-
in-law of the plaintiff was a servant in the suit premises, as it is
specific case of the plaintiff that father-in-law of plaintiff derived
title by way of adverse possession.
4.9 Learned advocate for the plaintiff has relied upon following
judgments.
(i) Bai Chanchal D/o. Patel Ranchhodbhai Jhaverbhai vs. Heirs of
deceased Motibhai Jhaverbhai Patel, 1986 GLH 168;
(ii) Sumra Abu Haji vs. Himatsinhji Jadeja and Others; 1985 GLH
578; and
(iii) Nazir Mohamed vs. J. Kamala, 2020 (0) AIJEL SC 66474
4.10 Thus, it is argued that present Second Appeal is required to be
admitted on the following substantial questions of law as suggested
in the appeal memo.
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"(1) Whether both the Courts below have committed an error
in considering the defence namely the father in law of
appellant No.1 Decd. Muljibhai Bijalbhai Vasava, was
servant / tenant of the original defendants owners of the
suit lands ?
(2) Whether both the Courts below committed an error in
relying upon the documents Mark 4/12, the tax
assessment book / statement prepared by Vadodara
Municipal Corporation, for the purpose of coming to a
conclusion that said deceased Muljibhai Bijalbhai
Vasava, was servant / tenant of defendants land owners
for the suit land ?
(3) Whether both the Lower Courts have committed an error
in determining the status of deceased Muljibhai
Bijalbhai Vasava, the father in law of appellant No.1, as
tenant / servant, basing upon the version of assessment
officer exercising the duty under the provisions of
Bombay Provincial Municipal Corporation Act, for the
purpose of tax assessment only ? - especially when in
the entire plaint the case of the plaintiffs-appellants is
that plaintiffs and their predecessor continuously
holding the possession of suit lands for a period of 35-
years since from year 1959, and there is no averments in
the plaint that father-in-law Muljibhai was a tenant /
servant ?
(4) Whether the tax officers for the purpose of tax-
assessment is competent to determine the status of
tenant/servant ? And whether both the Courts below
have committed an error in rejecting the plaint on that
ground / documents Mark 4/12 ?
(5) Whether the Courts below have committed a legal error
in rejecting the plaint on a ground that father-in-law of
appellants was permissive user and therefore can not
raised the claim of adverse possession, where in a plaint
there is a prayer of permanent injunction not to snatch
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away the admitted possession of the plaintiff without
due process of law ?
(6) Whether the Courts below have committed an error in
holding that the suit of the plaintiff is barred under Law
of Limitation, with regard to the amended prayer of
challenging the Registered Sale Deeds of defendant
Nos.5 and 6 (Respondent Nos.5 & 6), when there is a
specific pleading in the amended plaint in para-8/4 &
8/5, that plaintiffs came to know regarding said
fraudulent sale deeds on 17/08/2012, the day on which
the plaintiffs received the letter from the Town Planning
Authority ?
(7) Whether the plaintiffs - appellants who are not the
parties to the impugned sale deeds, can be construed to
have constructive notice of the impugned registered sale
deed dated 15/03/2000, being the sale deed is registered
one ? Or whether the limitation would run from the date
of knowledge of the sale deed for the plaintiffs ?
(8) Whether both the courts below have committed an error
in rejecting the plaint only on the issue of adverse
possession and limitation, ignoring the permanent
injunction relief with regard to snatching away the
settled and admitted possession of the plaintiffs, without
due process of law?
(9) Whether the Courts below have committed an error in
rejecting the plaint on a issue of adverse possession and
the limitation, which are the mixed issues of Law and
Facts, which can be resolved only by way of a trial?"
SUBMISSION OF DEFENDANT :-
5.1 Learned advocate for the defendant has mainly argued that
while rejecting the plaint it is not required that an application has to
be filed under the provisions of Order VII Rule 11 of the CPC and
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the trial Court can decide the same even without issuing notice.
Learned advocate for the defendant has canvassed his argument that
if the documentary evidence that is produced along with the plaint is
perused, the same clearly proves that the father-in-law of the
plaintiff was a servant and was occupying the premises as a servant.
Moreover, there are documentary proof to the effect that the plaintiff
has been considered as a tenant in the premises and as on the date of
filing the suit, the father-in-law of the plaintiff has expired and even
the father-in-law of the plaintiff Muljibhai Bijalbhai Vasava has
expired and husband of the plaintiff i.e. son of Muljibhai Bijalbhai
Vasava has also expired and plaintiff is residing in suit premises
with second husband i.e. plaintiff no.2.
5.2 Learned advocate for the defendant has argued that if the
entire plaint is perused, there are no pleadings to prove as to when
possession become adverse and the defendant have not produced any
document that they have become owner by adverse possession as
much as they entered into possession through father-in-law of the
plaintiff who has admitted that he is servant of the defendant and,
therefore, there was nothing on record to show at the time of filing
of the suit that as to when possession became adverse to the interest
of original owners and, therefore, it has been argued that judgment
and decree passed by the trial Court, rejecting the plaint is legal and
proper and after considering the relevant facts stated in the plaint and
documents annexed with the plaint and, therefore, the trial Court has
rightly rejected the plaint and the appellate Court has rightly
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confirmed the said judgment and decree and in view of the same, the
present Second Appeal is required to be dismissed.
5.3 Insofar as contention regarding the aspect that even if
possession is for long time is concerned, the same will not convert
into lawful title. Learned advocate for the defendant has relied on the
decision in the case of Ram Nagina Rai vs. Deo Kumar Rai
(Deceased) reported in 2018 (0) AIJEL - SC - 63244.
5.4 With respect to the fact that the plaintiff, in the plaint, has to
give details of relevant material facts with respect to the claim of
having title by way of adverse possession, learned advocate for the
defendant has stated that there are no pleadings in the plaint with
respect to the same. Moreover, there are vague pleadings in the
plaint and, therefore, with respect to the said fact and the fact that
due process of law is complied with when the case of the plaintiff is
rejected, learned advocate for the defendant has relied on Maria
Margarida Sequeria Fernandes vs. Erasmo Jack De Sequeria
(Dead) Through Lrs. reported in 2012 (5) SCC 370.
5.5 Learned advocate for the defendants has argued that in view of
the fact that relief that has been sought in the plaint could not be
granted by the Court and in the present case as cause of action
pleaded and the reliefs claimed are not recognized by Law of land,
the trial Court and the appellate Court could not have kept suit alive
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to go to trial and for the said fact learned advocate for the defendants
has relied on the decision in the case of Rajendra Bajoria vs.
Hemant Kumar Jalan reported in 2022 (12) SCC 641.
5.6 With respect to the fact that question as to whether expression
"Law" occurring under clause (d) of Order VII Rule 11 of the CPC
includes "judicial decision of the Apex Court", learned advocate for
the defendant has relied on the decision reported in the case of
Bharvagi Constructions vs. Kothakapu Muthyam Reddy and others
reported in 2017 (0) AIJEL SC 60765, wherein it has been observed
that the law includes not only latest enactments, but also judicial
precedents. The authoritative judgment of the Courts including
higher judiciary is also Law.
5.7 With respect to fact that while deciding the application under
Order VII Rule 11 of the CPC, the trial Court can take into
consideration that caretaker / servant can never acquire interest in
the property irrespective of its long possession and learned advocate
for the defendant relied upon decision reported in the case of
Himalaya Vintrade Pvt. Ltd. vs. Md.Zahid reported in 2021 AIR
(SC) 5749 wherein it has been held that in view of the fact that the
servant cannot acquire interest in property irrespective of his long
possession and the plaint does not disclose cause of action for
institution of suit and is required to be rejected.
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5.8 In view of the said facts, it has been argued that there are no
substantial questions of law involved in the present appeal and,
therefore, it is required to be dismissed.
ANALYSIS :
6.1 Having heard learned advocates for the parties and having
considered the plaint and documents annexed with the plaint, and the
judgment and decree passed by the trial Court and confirmed by the
first appellate Court, following undisputed facts have emerged:
(i) The defendants are the owners of the property;
(ii) at the time when the suit was filed, the plaintiff admits that
defendant nos.1 and 2 were owners of the suit property;
(iii) the plaintiff does not have any registered document to
establish the fact that the plaintiff is owner of the property;
(iv) the plaintiff is claiming possessory title of the suit property on
the ground that earlier father-in-law of the plaintiff was in
possession of the property;
(v) other than the fact that the plaintiff is in possession of the
property since 35 years from the date of filing the suit, no
details have been stated in the plaint as to how the possession
was acquired by the father-in-law of the plaintiff;
(vi) the documents along with the plaint clearly states that father-
in-law of the plaintiff was a servant and his possession has
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been stated to be that of servant of the defendant, in the plaint
there are no details about when and how the possession of the
plaintiff was converted into title by way of adverse possession.
6.2 In this background, it will be important to consider the fact
that plaintiff has not produced any document to prove his case of
claiming ownership. It is required that there has to be some
pleadings on the said fact of plaintiff having acquired title by way of
adverse possession. The pleadings must set-forth sufficient factual
details to the extent that it reduces the ability to put-forth a false or
exaggerated claim and pleadings must inspire confidence and
credibility and as held in the judgment reported in Maria Margarida
Sequeria Fernandes vs. Erasmo Jack De Sequeria (Dead) Through
Lrs. (supra) on vague pleadings, no issue arises. Only when the
plaintiff establishes the fact by giving details and prays in his
pleadings, the question of framing issue arises. It is mandatory for
the plaintiff to give details and produce documents sufficient and give
material particulars of his title by adverse possession failing which, the
plaintiff could not succeed. In the present case, except for the fact in
the relief claimed by plaintiff to be owner by way of adverse
possession, there are no pleadings as to how the plaintiff is having
title by way of adverse possession.
6.3 Moreover the fact remains that, the plaintiffs who are claiming
adverse possession, have miserably failed to show that, on what date he
came into possession and that what was the nature of his possession and
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whether the factum of possession, was known to the defendant and since
how long his possession has continued and the plaintiffs have also
miserably failed to prove that his possession was open and undisturbed.
All the above referred ingredients are not mentioned in the pleadings and
are also not proved in evidence and therefore, when there are no proof in
the pleadings and there is no oral or documentary evidence, the case of
the plaintiffs without evidence will not establish a case in law. Moreover,
mere possession of the land by the plaintiffs would not ripen into
possessory title. The plaintiffs to claim right by adverse possession must
have intention and hold the suit property adverse to the title of the
defendant.
6.4 With respect to the claim of the plaintiffs to be in adverse
possession, the possession of the suit property by the plaintiffs
contemplates a hostile possession i.e. a possession which is impliedly or
expressly in denial of the title of the true owner and for claiming
possession to be adverse, the same must be a possession by the plaintiffs,
who does not acknowledge either the defendant's right or anybody else's
right, but also denies the said right. The plaintiffs possession for claiming
adverse possession had to imply a control and consciousness in the mind
of the plaintiffs having dominion over an object that plaintiffs have
adverse possession and only then can plaintiffs exercise it, and therefore
by only holding possession of the suit property would not entitle the
plaintiffs into possessory title as there has to be an element to hold the
suit property adverse to the title of the true owner.
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6.5 The possession of the premises of the plaintiffs only implies the
bare use of the suit premises land without any right to retain it and
therefore, in order to constitute adverse possession, the plaintiffs must
prove that the actual possession of the plaintiffs was claimed by the
plaintiffs as of right by himself or by persons deriving title from him and
therefore, it was not sufficient for the plaintiffs to prove adverse
possession to show just the possession of property and for the claim of
adverse possession, the said possession along with being actual, visible,
exclusive has to be hostile and continued during the time necessary to
create a bar under the statute of limitation. It is not enough for the
plaintiffs to prove that he was in actual possession of the property within
period of limitation, but the plaintiffs must establish his title to the
property and if the plaintiffs fail to prove his title, the suit fails and the
question of adverse possession does not arise in such a case.
6.6 The law of 'due process' is well settled in case of Maria Margarida
Sequeria Fernandes and Others v. Erasmo Jack de Sequeria (Dead)
(supra) wherein the Hon'ble Apex Court has approved the finding of the
High Court of Delhi in case of Thomas Cook (India) Limited V/s. Hotel
Imperial wherein it has been held that the settled possession of even a
person in unlawful possession cannot be disturbed forcibly by true owner
taking law in his own hands therefore, ejectment from settled possession
can only be had by recourse to Court of law and due process of law or
due course of law would mean that a person in settled possession cannot
be ejected without a Court of law having adjudicated upon his rights qua
the true owner. The Court held that it was not important who brought the
action to Court, it could be the owner in an action for enforcement of his
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right to eject the person in an unlawful possession of the property
meaning thereby that if the defendant is in unlawful possession of the
property, the owner can file a suit for ejectment and also it could be the
person who is sought to be ejected and who has filed a suit preventing the
action of the owner from ejecting him like the present case that the
plaintiff is claiming a right in the property stating that he is in settled
possession of the property and the defendant cannot dispossess the
plaintiffs without due process of law.
6.7 It is not important that whether the owner has filed a suit for
recovery of possession or the person in settled possession has filed a suit
for protection of his right i.e. injunction against dispossession. What is
important is that in either event it is an action before the Court and that
the Court adjudicates upon it and if that is done, the bare minimum
requirement of due process or due course of law would stand satisfied as
recourse to law would have been taken. Therefore, when the person in
settled possession approaches the Court seeking a protective remedy,
such injunction, like the present case and the plaintiffs of the said suit
fails in setting up a good case, in that event the recourse to law stipulation
stand satisfied when a judicial determination is made with regard to
protective action filed by a person in settled possession is decided.
6.8 Therefore, the plaintiff who files a suit for injunction for seeking
protective remedy fails and suit is dismissed, thereafter he cannot state
that owner must now institute an action in Court of law for recovery of
possession when the Court has already held that possession of the
property that is with the plaintiffs is unlawful.
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6.9 Therefore, the bare minimum requirement of due process of law is
met with, as the plaintiffs have already not been successful in the suit and
has not been able to show that he has a right to claim injunction against
the true owner. Moreover, the plaintiffs even by long possession of years
or decades cannot acquire any right or interest in the suit property, the
plaintiffs having claimed right by way of adverse possession and having
not proved the adverse possession and or filed any suit with respect to the
adverse possession cannot be protected.
6.10 The judgment that has been relied upon by the plaintiff i.e. (i)
Bai Chanchal D/o. Patel Ranchhodbhai Jhaverbhai vs. Heirs of
deceased Motibhai Jhaverbhai Patel (supra), (ii) Sumra Abu
Haji vs. Himatsinhji Jadeja and Others (supra) and (iii) Nazir
Mohamed vs. J. Kamala (supra) will not be of any assistance to the
plaintiff in view of the fact that in the said cases, plaintiff was
claiming right and it was proved that the possession was openly,
continuously and peacefully remained even without title and the fact
in all judgments relied upon are on facts different than the present
case, in view of the fact that in the present case there are
documentary evidences to prove that the father-in-law was servant in
the suit property and plaintiff is also claiming right of possession
through the father-in-law.
6.11 The judgment on which learned advocate for the
defendant has relied upon in the case of Himalaya Vintrade Pvt. Ltd.
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vs. Md.Zahid (supra) will be of assistance to the defendant in the
present case in view of the fact that in the said judgment also
declaration was sought that plaintiff was occupier as servant
claiming adverse possession wherein the Apex Court has held that
caretaker / servant can never acquire interest in the property
irrespective of long possession and the plaintiff does not disclose
cause of action and the plaint was rejected.
6.12 The judgment relied upon by learned advocate for the
defendant in the case of Bharvagi Constructions vs. Kothakapu
Muthyam Reddy (supra) will also be helpful to the defendant in the
facts of the present case in view of the fact that in the said judgment
the Apex Court has held that law includes not only latest enactments,
but also judicial precedents and the authoritative judgment of the
Courts including higher judiciary is also Law.
6.13 The judgment relied upon by learned advocate for the
defendant in the case of Rajendra Bajoria vs. Hemant Kumar Jalan
(supra) will also be of assistance to the defendant, in the facts of the
present case in view of the fact in the said case Apex Court has held
that if the cause of action pleaded and the relief claimed are not
recognized by law of land such suit cannot be kept alive to go to trial
and the judgment Ram Nagina Rai vs. Deo Kumar Rai (Deceased)
(supra) will be also of assistance to the defendant as in the present
case also there is nothing on record to show that the defendant's
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possession over the property becomes adverse to the interest of real
owners at any point of time.
6.14 In view of the said facts and the fact that as per law laid
down in the case of Government of Kerala & Anr. vs. Joseph and
others reported in 2023 LiveLaw (SC) 621 : 2023 INSC 693, the
proper and concrete proof as required would need for the claimant to
show some proof of possession and merely long period of possession
does not translate into the right of adverse possession.
6.15 Similarly, in case of Gaya Prasad Dikshit vs. Dr. Nirmal
Chander and Another reported in 1984 (2) SCC 286 it is held that
mere continuance of unauthorised possession even for a period of
more than 12 years is not enough. Wherein in the case of Thakur
Kishan Singh vs. Arvind Kumar reported in (1994) 6 SCC 591 it is
held that "A possession of a co-owner or of a licensee 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. Mere possession
for howsoever length of time does not result in converting the
permissive possession into adverse possession ..." (emphasis
applied).
6.16 This Court would apt to refer also the judgment rendered
in the case of Annakili vs. A. Vedanayagam (2007) 14 SCC 308
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(Two-Judges' Bench), more particularly para:24 which reads as
under:
"24. Claim by adverse possession has two elements :- (1) the
possession of the defendant should become adverse to the
plaintiff; and (2) the defendant must continue to remain in
possession for a period of 12 years thereafter. Animus
possidendi as is well known is a requisite ingredient of adverse
possession. It is now a well-settled principle of law that mere
possession of the land would not ripen into possessory title for
the said purpose. Possessor must have animus possidendi and
hold the land adverse to the title of the true owner. For the said
purpose, not only animus possidendi must be shown to exist,
but the same must be shown to exist at the commencement of
the possession....."(emphasis supplied)
6.17 In case of Des Raj and others vs. Bhagat Ram reported
in (2007) 9 SCC 641 (Two Judges' Bench), in para:21, it is observed
thus:
"21. In a case of this nature, where long and continuous
possession of the plaintiff-respondent stands admitted, the only
question which arose for consideration by the courts below was
as to whether the plaintiff had been in possession of the
properties in hostile declaration of his title vis-a-vis his
coowners and they were in know thereof."
6.18. In case of L. N. Aswathama vs. P. Prakash reported in
(2009) 13 SCC 229 (Two Judges' Bench) it has been observed that
permissive possession or possession in absence of Animus
possidendi would not constitute the claim of adverse possession.
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6.19 It is held in case of Chatti Konati Rao vs. Palle Venkata
Subba Rao (Two Judges' Bench) reported in (2010) 14 SCC 316, in
para:15 as under:
"15. Animus possidendi as is well known is a requisite
ingredient of adverse possession. Mere possession does not
ripen into possessory title until the possessor holds the property
adverse to the title of the true owner for the said purpose. The
person who claims adverse possession is required to establish
the date on which he came in possession, nature of possession,
the factum of possession, knowledge to the true owner,
duration of possession and that possession was open and
undisturbed.......(emphasis supplied)"
6.20 The Apex Court in the judgment reported in Government of
Kerala & Anr. vs. Joseph and others (supra), in paras:21.8, 21.9 and
in para:21.10 held as under:
"21.8 A plea of adverse possession must be pleaded with proper
particulars, such as, when the possession became adverse. The
court is not to travel beyond pleading to give any relief, in other
words, the plea must stand on its own two feet. This Court has held
this in the case of V. Rajeshwari v. T.C. Saravanabava27 (two-
Judge Bench) :
"...A plea not properly raised in the pleadings or in issues
at the stage of the trial, would not be permitted to be
raised for the first time at the stage of appeal..."
It has also been held in the case of State of Uttrakhand v.
Mandir Sri Laxman Sidh Maharaj28 (two-Judge Bench) :
"...The courts below also should have seen that courts
can grant only that relief which is claimed by the plaintiff
in the plaint and such relief can be granted only on the
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pleadings but not beyond it. In other words, courts cannot
travel beyond the pleadings for granting any relief..."
Mandir Sri Laxman Sidh Maharaj (supra) was relied on in
Dharampal (Dead) v. Punjab Wakf Board29 (two-Judge Bench)
on the same principle.
21.9 Claim of independent title and adverse possession at the same
time amount to contradictory pleas. The case of Annasaheb
Bapusaheb Patil v. Balwant30 (two-Judge Bench) elaborated this
principle as :
"15. Where possession can be referred to a lawful title, it
will not be considered to be adverse. The reason being
that a person whose possession can be referred to a lawful
title will not be permitted to show that his possession was
hostile to another's title. One who holds possession on
behalf of another, does not by mere denial of that other's
title make his possession adverse so as to give himself the
benefit of the statute of limitation. Therefore, a person
who enters into possession having a lawful title, cannot
divest another of that title by pretending that he had no
title at all."
21.10 Burden of proof rests on the person claiming adverse
possession.
This Court, in P.T. Munichikkanna Reddy v. Revamma32 (two-
Judge Bench), it held that initially the burden lied on the landowner
to prove his title and title. Thereafter it shifts on the other party to
prove title by adverse possession. It was observed: -
"34. The law in this behalf has undergone a change. In terms of
Articles 142 and 144 of the Limitation Act, 1908, the burden
of proof was on the plaintiff to show within 12 years from the
date of institution of the suit that he had title and possession of
the land, whereas in terms of Articles 64 and 65 of the
Limitation Act, 1963, the legal position has underwent
complete change insofar as the onus is concerned : once a party
proves its title, the onus of proof would be on the other party to
prove claims of title by adverse possession...."
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The Court reiterated this principle in the case of Janata Dal Party
v. Indian National Congress33 (two-Judge Bench):
"...the entire burden of proving that the possession is
adverse to that of the plaintiffs, is on the defendant..."
7. In the present case, the plaintiff has miserably failed to prove that
he has become owner by way of adverse possession and in view of the
fact that the trial Court and the appellate Court have rightly taken into
consideration the plaint and documentary evidence produced with the
plaint, it has been proved that the plaintiff, who is claiming the
possession through his father-in-law himself was servant in the premises.
In view of the same, no interference appears to have been called for in the
orders passed by both the Courts below.
8. Under the circumstances, this Second Appeal is devoid of any
substantial question of law. Both the learned Trial Court and first
appellate Court have rightly decided the issue between the parties in the
right perspective and as stated above no substantial question of law arises
in the present appeal. The appellants have failed to prove their case
before the learned trial Court as well as before the first appellate Court.
This Court does not find any substance in the present Second Appeal as
the same is devoid of any merit both on facts and law and the same is
dismissed at admission stage. The connected application stands disposed
of accordingly.
(SANJEEV J.THAKER,J)
9.1 After the pronouncement of the judgment, learned advocate for the
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appellant, requests for stay of implementation and operation of this order.
9.2 Learned advocate for the respondent has strongly objected this
request and relying on the the judgment rendered in the case of IEEE
Mumbai Section Welfare Association vs. Global IEEE Institute for
Engineers reported in 2025 LiveLaw (SC) 658 he has argued that
injunction order becomes invalid upon plaint rejection and can only be
revived if the plaint is restored.
9.3 In view of the above cited judgment so also in view of the fact that
trial Court has rejected the plaint under the provisions of Order VII Rule
11 of the CPC and the first appellate Court has also confirmed the said
judgment of the trial Court, the request made by learned advocate for the
appellant is rejected.
(SANJEEV J.THAKER,J)
MISHRA AMIT V.
