Gujarat High Court
Late Bhikhabhai Fatabhai Makwana vs Collector Of Banaskantha At Palanpur on 24 November, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 267 of
2025
In R/SECOND APPEAL NO. 534 of 2025
With
R/SECOND APPEAL NO. 534 of 2025
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LATE BHIKHABHAI FATABHAI MAKWANA & ORS.
Versus
COLLECTOR OF BANASKANTHA AT PALANPUR
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Appearance:
MR. MAULIK M SONI(7249) for the Applicant(s) No.
1,1.1,1.2,1.3,1.4,1.5,2,3,4
MR BHARAT VYAS, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 24/11/2025
ORAL ORDER
Order in Civil Application
Having heard learned advocate for the applicant and
considering the averments made in the application, present
application is allowed. Delay caused in preferring Second Appeal
is condoned.
Order in Second Appeal
1. This Second Appeal under section 100 of Civil Procedure
Code, challenges concurrent findings arrived by learned Courts
below, whereby, learned Principal Senior Civil Judge, Palanpur
dismissed Regular Civil Suit No.68 of 2007 filed by the original
plaintiff for declaration and permanent injunction by judgment
and decree dated 01.10.2015 confirmed by learned Appellate
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Court in Regular Civil Appeal No.29 of 2015 by judgment and
decree dated 20.03.2024.
2. In this Second Appeal, the appellant - original plaintiff
claims following questions as substantial question of law :-
(i) Whether the appellant Court erred in law by not
formulating points of determination as provided in Civil
Procedure Code, 1908 given the status of the last fact
finding Court ?
(ii) Whether the courts below erred in facts and law by
incorrect appreciation of the provision of the Indian Evidence
Act read with the settled principles of Civil Procedure Code?
(iii) Whether the courts below had erred in law by incorrect
interpretation of documents of the revenue records for
proving the possession and usage of suit land in view of the
settled principle of interpretation of document is a question
of law?
(iv) Whether the courts below have failed to appreciate that
the true owner of the new tenure land is the state and the
state was aware about the adverse possession of the
plaintiffs through the revenue records?
(v) Whether the claim of the plaintiffs for ownership on the
basis of adverse possession over the new tenure is legally
tenable or not?
3. Facts of the case are that, on coming into force Jagir
Abolition Act, land of survey No.50, Acre - 9 - 33 Guntas (suit
land), by virtue of section 8 of the Jagir Abolition Act vested in
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State Government. Revenue Entry No.25 dated 13.08.1956 was
posted in favour of State Government and confirmed on
09.07.1957. Said land had been allotted to Harijan Tirbandha
Punja Hema by the Collector, Palanpur vide order dated
02.05.19861 and followed by order of Mamlatdar. Land was
allowed as new tenure and non partition land, it was mutated by
Revenue Entry No.51 in favour of Harijan Tirbandha Punja
Hema. He expired within six months of allotment order,
therefore, name of his heirs were mutated by Revenue Entry
No.76 dated 14.03.1969. Heirs of Hiarijan Tirandha Punja Hema
and others sold land of Survey No.50 to Koli Fata Ajaba by
executing unregistered document on stamp paper of Rs.5 on
22.03.1969 on sale consideration of Rs.600/-. Revenue Entry
was mutated in favour of Koli Fata Ajaba but did not certified
since it was breach of terms and conditions, proceedings were
initiated before the Collector and ultimately, the entry was
rejected and land of survey No.50 was re-vested to the State
Government. Revenue Entry No.102 was mutated in this regard.
Subsequent thereto in the year 1981, land of Survey No.50 was
re-granted to heirs of Harijan Tirbandha Fata Punja as new
tenure and non partition land. Revenue Entry to that effect was
posted vide No.137 on 05.07.1981.
3.1. In aforesaid chequred history, plaintiff - Bhikhabhai
Fatabhai Makwana heir of Koli Fata Ajaba claims that firstly, his
father and then he is in peaceful and vacant possession of land
of Survey No.50 since 1969 and his possession become adverse
to the title of the defendant. It is further averred by the plaintiff
that even on and after re-grant, he is in continuous possession
of the suit land. Thus, on the principle of adverse possession, he
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becomes owner of the suit land. Plaintiff claims declaration and
permanent injunction to tune that he may be declared owner of
land of Survey No.50 on the principle of adverse possession and
defendant or his agent be restrained from possession qua land of
survey no.50.
4. By reasoned order which runs into 43 pages, learned Trial
Court dismissed the suit of the plaintiff on various grounds.
Judgment and decree passed by learned Trial Court has been
confirmed by learned Appellate Court by dismissing Regular Civil
Appeal No.29 of 2015 filed by original plaintiff.
5. Being aggrieved, the plaintiff is before this Court under
section 100 of CPC proposing aforesaid questions as substantial
question of law for admission of appeal.
6. After condoning delay of 108 days in preferring Second
Appeal, this Court has heard learned advocate Mr.Soni for the
appellant - plaintiff and learned AGP Mr.Bharat Vyas for the
respondents.
7. Learned advocate Mr. Soni for the appellant made multiple
submission in line of grounds mentioned in the appeal memo
with centric submission that pursuant to unregistered sale deed,
father of plaintiff - Koli Fata Ajaba got possession of land of
survey no.50 from 22.03.1969. It is submitted that possession
of land of survey no.50 is continuously lying firstly with Koli Fata
and after his death with plaintiff. It is further submitted that in
the interregnum period twice proceedings of breach of condition
of allotment has been carried and in both proceedings, it came
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on record that plaintiff or / his father are in peaceful possession
of land of survey no.50 and yet heirs of deceased - Tirbandha
Punja Hema or State Government who owned land of survey
no.50 did not carry any proceedings to evict plaintiff, hence,
plaintiff has perfected title on principle of adverse possession. It
is submitted that learned Trial court as well as learned Appellate
Court have committed serious error in arriving at conclusion
that land is new tenure land and it could not be partitioned and
therefore, any document executed contrary to the said condition
is nullity. It is submitted that since 23.03.1969 till date, firstly
plaintiff's father and then plaintiff are in legal possession of land
of survey no.50 and they have perfected title by way of principle
of adverse possession. It is submitted that learned Courts below
have committed serious error in reading evidence. It is
submitted that it is no one's case that firstly father of the
plaintiff and then plaintiff are not in exclusively possession of
land of survey no.50 and therefore, on that aspect learned Trial
Court was required to believe case of the plaintiff and to decree it
but finding of learned Courts is perverse and against settled
principle of law. Therefore, it is submitted that appeal be
admitted on the proposed questions of law.
8. Learned AGP on other hand supported the concurrent
findings arrived by learned Courts below and submitted that
since there is no case made out by the plaintiff to interfere with
concurrent findings of learned Courts below, there is no reason
to admit this Second Appeal. Therefore, he submitted to dismiss
the appeal.
9. This Court in the case of Heirs Of Deceased Bhavanbhai
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Bharwad Gagubhai Bhavanbhai Bharwad Versus State Of
Gujarat [2025 (1) GLR 654] addressed the issue that for
establishing adverse possession what are requirements. This
Court in para 16,17,18 and 19 held as under :-
"16. The Constitution Bench of the Honble Apex Court in
case of M Siddiq (D) through LRs v. Mahant Suresh Das &
Ors., 2019 SCC OnLine SC 1440 , held that a plea of
adverse possession is founded on the acceptance that
ownership of the property vests in another, against whom
the claimant asserts possession adverse to the title of the
other. The Court held as under:
"747. 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 4 ought to be cognisant 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.
748. 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 rst by adequate pleadings and second by
leading sucient 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
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pleading, evidence by itself cannot supply the deciency of a
pleaded case. Reading paragraph 11(a), it becomes evident
that beyond stating that the Muslims have been in long
exclusive and continuous possession beginning from the
time when the Mosque was built and until it was
desecrated, no factual basis has been furnished. This is not
merely a matter of details or evidence. A plea of adverse
possession seeks to defeat the rights of the true owner and
the law is not readily accepting of such a case unless a clear
and cogent basis has been made out in the pleadings and
established in the evidence.
xx xx xx
752. In Supdt. and Remembrance of Legal Affairs, West
Bengal v. Anil Kumar Bhunja, (1979) 4 SCC 274 , Justice R
S Sarkaria, speaking for a three judge Bench of this Court
noted that the concept of possession is "polymorphous.
embodying both a right (the right to enjoy) and a fact (the
real intention). The learned judge held:
"13. "It is impossible to work out a completely logical and
precise denition of "possession" uniformly applicable to all
situations in the contexts of all statutes. Dias and Hughes in
their book on Jurisprudence say that if a topic ever suffered
from too much theorising it is that of "possession". Much of
this diculty and confusion is (as pointed out in Salmond's
Jurisprudence, 12th Edn., 1966) caused by the fact that
possession is not purely a legal concept. "Possession",
implies a right and a fact; the right to enjoy annexed to the
right of property and the fact of the real intention. It involves
power of control and intent to control. (See Dias and Hughes,
ibid.)."
These observations were made in the context of possession
in Section 29(b) of the Arm Act 1959. In P Lakshmi Reddy v.
L Lakshmi Reddy, 1957 SCR 195, Justice Jagannadhadas,
speaking for a three judge Bench of this Court dwelt on the
"classical requirement" of adverse possession:
"4. Now, the ordinary classical requirement of adverse
possession is that it should be nec vi nec clam nec precario.
(See Secretary of State for India v. Debendra Lal Khan
[(1933) LR 61 IA 78, 82] ). The possession required must be
adequate in continuity, in publicity and in extent to show
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that it is possession adverse to the competitor."
The court cited the following extract from U N Mitra's "Tagore
Law Lectures on the Law of Limitation and Prescription":
"7...An adverse holding is an actual and exclusive
appropriation of land commenced and continued under a
claim of right, either under an openly avowed claim, or
under a constructive claim (arising from the acts and
circumstances attending the appropriation), to hold the land
against him (sic) who was in possession. (Angell, Sections
390 and 398). It is the intention to claim adversely
accompanied by such an invasion of the rights of the
opposite party as gives him a cause of action which
constitutes adverse possession." (6th Edition, Vol. I, Lecture
VI, at page 159)
This Court held: "7...Consonant with this principle the
commencement of adverse possession, in favour of a person
implies that the person is in actual possession, at the time,
with a notorious hostile claim of exclusive title, to repel
which, the true owner would then be in a position to
maintain an action. It would follow that whatever may be
the animus or intention of a person wanting to acquire title
by adverse possession his adverse possession cannot
commence until he obtains actual possession with the
requisite animus."
In Karnataka Board of Wakf v. Government of India, (2004)
10 SCC 779 , Justice S Rajendra Babu, speaking for a two
judge Bench held that:
"11...Physical fact of exclusive possession and the animus
possidendi to hold as owner in exclusion to the actual owner
are the most important factors that are to be accounted in
cases of this nature. Plea of adverse possession is not a
pure question of law but a blended one of fact and law.
Therefore, 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."
The ingredients must be set up in the pleadings and proved
in evidence. There can be no proof sans pleadings and
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pleadings without evidence will not establish a case in law.
In Annakili v. A Vedanayagam, (2007) 14 SCC 308 , this
Court emphasized that mere possession of land would not
ripen into a possessory title. The possessor must have
animus possidendi and hold the land adverse to the title of
the true owner. Moreover, he must continue in that capacity
for the period prescribed under the Limitation Act."
17. In Chatti Konati Rao v. Palle Venkata Subba Rao, (2010)
14 SCC 316 , the Honble Apex Court held that the person
who claims adverse possession is required to establish the
date on which he came in possession, nature of possession,
factum of possession, knowledge to the true owner, duration
of possession and that possession was open and
undisturbed. Since the person pleading adverse possession
is claiming right against the equity and trying to destroy the
title proprietary right of the true owner and it is for him to
clearly plead and establish all facts necessary to establish
adverse possession.
18. Classic requirement of pleading and proving principle of
adverse possession is that it should be nec vi i.e. adequate
in continuity; nec clam i.e. adequate in publicity and nec
precario i.e. adverse to competitor in denial of title and
knowledge.
19. After referring various judgments, recently Hon'ble Apex
Court in Government of Kerala v/s. Joseph [AIR 2023 SC
3988] , in para 22 has held as under :-
"22. In the instant facts, for the respondents to be granted
the enjoyment of the disputed property, clear, continuous
and hostile possession would have to be established by way
of cogent evidence and the animus possidendi must be
demonstrated. We now proceed to examine whether these
requirements are met with in the present case."
10. Classic requirement of establishing adverse possession is
that it should be viz. Nec vi, nec claim and nec precario. Plaintiff
in order to set up principle of adverse possession is required to
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establish that his possession was open, clear and continuous for
more than 12 years (in case of State Government or Central
Government more than 30 years) and it is in knowledge of the
owner that said possession is hostile to the title.
11. Hon'ble Apex Court in the case of Kishundeo Rout v/s.
Govind Rao [2025 INSC 956], in para 18 to 20,21,22, 23, 25,
26, 27, 28 and 29 held as under :-
"18. We had the benefit of looking into few very old erudite
judgments on the pivotal issue involved in the present
litigation. One such judgment is a full Bench decision
rendered by the Punjab High Court in the case of Ganda
Singh and Ors. v. Ram Narain Singh reported in ILR (1959) 1
P&H 385.
19. It is a settled position of law that the foundation for the
plea of adverse possession must be laid in the pleadings
and then an issue must be framed and tried. A plea not
properly raised in the pleadings or in issues at the stage of
trial would not be permitted to be raised for the first time at
the stage of First Appeal under Section 96 of the Code of
Civil Procedure (CPC).
20. The plea of adverse possession is not always a legal
plea. Indeed, it is always based on facts which must be
asserted and proved. A person who claims adverse
possession must show on what date he came into
possession, what was the nature of his possession, whether
the factum of his possession was known to the legal
claimants and how long his possession continued. He must
also show whether his possession was open and
undisturbed. These are all questions of fact and unless they
are asserted and proved, a plea of adverse possession
cannot be inferred from them. Therefore, in normal cases an
appellate Court will not allow the plea of adverse possession
to be raised before it. There is no doubt that in some cases,
the plea will be allowed for the reason that in some form or
the other allegation upon which it can be raised might have
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been made at the time and the facts necessary to prove the
plea were brought before the court and proved. Such a case
is the one of which the decision is reported in Municipal
Board, Etawah v. Mt. Ram Sri and another reported in A.I.R.
1931 All. 670. In that case the plaintiffs based their suit on
title extending over a period of thirty years. ''The plaintiffs"
case was that plaintiff 1 was the owner of the land and she
had on that plot four small shops fetching a rent of about Rs.
80 a month. Plaintiff 2 is her lessee. The shops were burnt
down in June, 1926 and the land was laid vacant. The
plaintiffs made an application to the Municipal Board for
permission to build again on the land, but this permission
was refused on 27th August, 1926, on the ground that the
Municipal Board was the owner of the land and not the
plaintiffs." The learned Judges of the Allahabad High Court
held that a plea of adverse possession extending over a
period of thirty years could be read into this claim and
therefore although it was not specifically raised in the plaint
yet it could be raised at a later stage. In other words, what
they held was that the plea of adverse possession was
included in the plea of title. In coming to this conclusion the
learned Judges no doubt took notice of the fact that the
plaintiffs had clearly stated that actual physical possession
of the property in dispute was with them. [See: Ganda Singh
(supra)]
21. A case of another type in which the plea of adverse
possession was not allowed to be raised is Krishna Churn
Baisack and others v. Protab Chunder Surma reported in
I.L.R. 7 Cal. 560. In that case no plea of adverse possession
for a period of twelve years was made in the plaint, but the
plea was raised in the trial Court itself. The District Judge,
however, took the view that the plaintiffs ought not be
allowed to succeed on the plea of adverse possession
because it had not been set out with sufficient distinctness
in the plaint. With this view the learned Judges of the
Calcutta High Court agreed. They based their decision on
the ground that all the facts necessary for proving this plea
had not been alleged before the Court. In that case the
plaintiffs had not been in continued possession for a period
of twelve years and they sought to tack on the previous
possession of another. Therefore, it is clear that in
disallowing the plea of adverse possession to be raised
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before them the learned Judges were actuated by the fact
that fresh material would have to be brought before the
Court in the form of allegations and counter-allegations
before the plea of adverse possession could be held to be
proved. They remanded that case for fresh decision on
another issue.
22. In Ram Singh v. Deputy Commissioner of Bara Banki
reported in I.L.R. 17 Cal. 444, the plea of adverse
possession was raised for the first time in appeal before the
Privy Council. Their Lordships held that since there was no
allegation of adverse possession in the plaint and no issue
raised as to it before the Court below they could not
entertain the plea.
23. Lachhmi Sewak Sahu v. Ram Rup Sahu and others
reported in A.I.R. 1944 P.C. 24 is another case in which the
same principle was laid down. Also see Somasundarum
Chetty v. Vadivelu Pillai reported in I.L.R. 31 Mad. 531.
25. This rule that pleadings and proof must correspond,
rests upon the principle that no party should be prejudiced
by being taken by surprise by varying the case as originally
Set up. In the words of Mahajan, J., in Trojan and Co., Ltd.
v. RM. N. N. Nagappa Chettier reported in 1953 S.C.R. 789
(806). "It is well settled that decision of a case cannot be
based on grounds outside the pleadings of the parties and it
is a case pleaded that has to be found."
26. The correct test as to when a plea of adverse possession,
when not taken in the plaint, can be raised later on in
appeal, was laid down by Calcutta High Court in Nepen
Bala Debi v. Siti Kanta Banerji reported in 8 I.C. 41 in the
following words:
"Where no case of acquisition of title by adverse possession
is made in the plaint, nor is the question raised directly or
indirectly in any of the issues, the plaintiff ought not to be
allowed to succeed upon such a case. On the other hand, as
pointed out by this court in the case of Lilabati Misrain v.
Bishun Chobey, when the question reduces itself to one of
law, upon facts admitted or proved beyond controversy, it is
not only competent to the Court, but expedient in the interest
of justice to entertain the plea of adverse possession, if such
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a case arises on the facts stated in the plaint and the
defendant is not taken by surprise. The true test, therefore,
to be applied to determine whether the plea of title by
adverse possession should be allowed to be urged though
not explicitly raised in the plaint, is, how far the defendant
is likely to be prejudiced if the point is permitted to be
taken."
(emphasis supplied)
27. Ordinarily, the question of adverse possession is one of
fact, resting upon proof of numerous circumstances which go
to establish the several elements, indicating adverse
character of the possession. In certain cases, it may be a
question of law, or, a mixed question of law and facts as,
where the decision rests upon inferences to be drawn from
facts which are admitted or established.
28. The determination of adverse possession depends upon
sifting of facts and circumstances, indicative of adverse
possession, and then, upon testing of the evidence in the
light of the law applicable. The Appellate Court may allow
the setting up of the plea of adverse possession for the first
time in appeal provided, the facts on the record are sufficient
to support it, and the opposite party is not taken by surprise,
but otherwise, a declaration of title by adverse possession
will not be given where the claim is not set out distinctly in
the pleadings or in issues. In Shiro Kumari Debi v. Gobind
Shaw Tanti reported in I.L.R. 2 Cal. 418, Markby J.,
observed at page 242, that where the question of 12 years'
possession had not been properly raised either in the plaint
or in the issues, and the defendant had no proper notice that
such a point was going to be raised, it was not open to the
lower appellate Court to declare in plaintiff's favour on the
strength of the title which had not been alleged. Plaintiff's
suit was dismissed.
29. In the case at hand if plea of adverse possession had
been taken in the plaint, and if that plea had been traversed
by the defendants and then proper issues framed, a heavy
burden would have laid on the plaintiffs to lead evidence in
support of their hostile claim and a corresponding
opportunity of rebuttal would have been given by law to the
defendants. In this case it is inconceivable that the question
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of adverse possession can become the subject- matter of
adjudication on this record in the absence of proper plea,
issue or proof."
12. Hon'ble Apex Court in judgment in the case of
M.Radheshyamlal Versus V.Sandhya And Another Etc. [2024
(13) SCC 275] addressed the issue of adverse possession. In
para 10,11 and 12, it is held as under :-
"10. As far as the plea of adverse possession is concerned, a
Constitution Bench of this Court in the case of M. Siddiq
(Ram Janmabhumi Temple-5 J.) v. Suresh Das, (2020) 1 SCC
1 , in paragraph 1142 and 1143 has held thus:
"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 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 rst by adequate pleadings and second by
leading sucient evidence. Evidence, it is well settled, can
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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 deciency of a
pleaded case . Reading Para 11( a), it becomes evident that
beyond stating that the Muslims have been in long, exclusive
and continuous possession beginning from the time when
the Mosque was built and until it was desecrated, no factual
basis has been furnished. This is not merely a matter of
details or evidence. A plea of adverse possession seeks to
defeat the rights of the true owner and the law is not readily
accepting of such a case unless a clear and cogent basis has
been made out in the pleadings and established in the
evidence." (underline supplied)
11. In the case of Karnataka Board of Wakf vs. Govt. of
India and Ors., (2004) 10 SCC 779 , in paragraph 11, this
Court has laid down the law regarding the plea of adverse
possession. Paragraph 11 reads thus:
"11. In the eye of the law, an owner would be deemed to be
in possession of a property so long as there is no intrusion.
Non-use of the property by the owner even for a long time
won't affect his title. But the position will be altered when
another person takes possession of the property and asserts
a right over it. Adverse possession is a hostile possession by
clearly asserting hostile title in denial of the title of the true
owner. It is a well-settled principle that a party claiming
adverse possession must prove that his possession is " nec
vi, nec clam, nec precario ", that is, peaceful, open and
continuous. The possession must be adequate in continuity,
in publicity and in extent to show that their possession is
adverse to the true owner. It must start with a wrongful
disposition of the rightful owner and be actual, visible,
exclusive, hostile and continued over the statutory period .
(See S. M. Karim v. Bibi Sakina [AIR 1964 SC 1254] ,
Parsinni v. Sukhi [(1993) 4 SCC 375] and D.N.
Venkatarayappa v. State of Karnataka [(1997) 7 SCC 567] .)
Physical fact of exclusive possession and the animus
possidendi to hold as owner in exclusion to the actual owner
are the most important factors that are to be accounted in
cases of this nature. Plea of adverse possession is not a
pure question of law but a blended one of fact and law.
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Therefore, 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. 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. [ Mahesh Chand Sharma (Dr.) vs. Raj Kumari
Sharma [(1996) 8 SCC 128] " (underline supplied)
12. Therefore, to prove the plea of adverse possession :-
(a) The plaintiff must plead and prove that he was claiming
possession adverse to the true owner;
(b) The plaintiff must plead and establish that the factum of
his long and continuous possession was known to the true
owner;
(c) The plaintiff must also plead and establish when he came
into possession; and
(d) The plaintiff must establish that his possession was open
and undisturbed.
It is a settled law that by pleading adverse possession, a
party seeks to defeat the rights of the true owner, and
therefore, there is no equity in his favour. After all, the plea
is based on continuous wrongful possession for a period of
more than 12 years. Therefore, the facts constituting the
ingredients of adverse possession must be pleaded and
proved by the plaintiff."
13. In view of aforesaid necessity in pleadings, to prove
principle of adverse possession, let examine whether any such
plea is pleaded by the plaintiff in plaint. In the suit, after
narrating how grant has been made by the State Government to
Harijan Tirbandha Punja Hema and others, plaintiff further
averred that father of the plaintiff purchased land of survey
no.50 by executing unregistered document on stamp paper of
Rs.5 on sale consideration of Rs.600/- on 22.03.1969 and
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thereby father of plaintiff entered into peaceful possession of
survey no.50. Further it is pleaded that in the subsequent
proceedings in regard to land of survey no.50, despite re-grant of
survey no.50, he continued in possession and therefore, on the
principle of adverse possession, plaintiff becomes owner but no
particulars are pleaded that how possession was clear,
continuous and hostile to the title of the owner, and how adverse
possession mature into the title, except in para 13, where
plaintiff claims that since 1969 he is in continuous possession
and revenue record also reflects that since 1969 he is in
possession without any interruption and it becomes adverse to
title. No where in the plaint, plaintiff claims or pleads that since
which date he is in possession and how it become adverse to the
title of the State Government, how possession was open and
undisturbed; how he has defeated right of the State Government
over land of Survey no.50, how possession is wrongful and why
it should not be believed possession under title. These facts are
to be constructed as ingredients of adverse possession and it
must be pleaded and proved.
14. In the aforesaid aspect, plaintiff at the most can claim that
he is in permissive possession since 1969 nothing more than it.
Plaintiff under cleaver drafting tried to put his case of adverse
possession. However, learned Trial Court in its comprehensive
judgment believed that plaintiff has hopelessly failed to prove
case of adverse possession. Learned Trial Court has fixed the
issue, upon rival pleadings at Exh.45. It reads as under (it is in
Gujarati, for better understanding it is translated in English) :-
"(1) Whether the Plaintiffs prove that the disputed land
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bearing Survey No. 50, admeasuring 9 acres and 33
gunthas, has been in the possession of the Plaintiffs
since 1969?
(2) Whether the Plaintiffs prove that the suit property was
received by the deceased father of the plaintiffs, Shri
Koli Fata Anjana, in his possession, occupation, and
cultivation rights since the year 1969 on the basis of a
sale deed?
(3) Whether, it is proved that despite the order to regrant
in the name of original Harijan Fata Puja and Mohan
Punja having been passed only on 05/07/1981 as the
suit property being of New Undivided Tenure type and
as upon sale, breach of new tenure had occurred and
it was vested under the Government, the possession of
the suit land was not with the original grantee but was
with the deceased father of the plaintiffs Fata Abja
since 1969?
(4) Whether the suit land was given on a mortgage by
conditional sale (Adanvat) to the deceased father of the
plaintiffs for 10 years for Rs. 1100/-?
(5) Whether the Plaintiffs prove that being in possession,
occupation, and cultivation rights of the suit land since
1969-70 and cultivating it without obstruction, they are
owners and occupants by adverse possession?
(6) Whether the Plaintiffs are entitled to obtain permanent
injunction as per Paragraph (22)(2) of the plaint?
(7) What Order? What Decree?
15. After permitting both the parties to lead evidence, learned
Trial Court has answered all the issues in negative, except issue
no.4 answered in affirmative and thereafter, dismissed the suit
of the plaintiff. Learned Trial Court after narrating factual
sequence believed that land in question i.e. land of survey no.50
was new tenure land. Koli Fata tried to enter into possession of
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said land by executing unregistered document which breached
terms and conditions of allotment and thereby land is vested
with State Government and remained with it. Plaintiff claims
that he is in possession of said land on solitary evidence of
revenue entry in Village Form no.12. However, said entry does
not help plaintiff to establish that his possession over the said
land is undefeated and continuous. There is no attempt made on
the part of the plaintiff to establish that he acted against title of
the State or Harijan Tirbandha Punja Hema and claimed to be
owner of the land of survey no.50 and it was within knowledge of
the State Government or Harijan Tirbandha Punja Hema.
16. Learned Appellate Court having re-appreciated the
evidence on record concur with the findings arrived by the
learned Trial to dismiss the First Appeal.
17. It is well settled that Second Appeal under section 100 of
CPC can only be entertained on substantial question of law. In
H.P.Pyarejan v/s. Dasappa (Dead) by LRs [(2006)) 2 SCC 496],
Hon'ble Apex Court has held as under :-
"16. In our opinion, therefore, the judgment of the High Court
suffers from serious infirmities. It suffers from the vice of
exercise of jurisdiction which did not vest in the High Court
under the law. Under Section 100 of the Code (as amended
in 1976) the jurisdiction of the High Court to interfere with
the judgments of the courts below is conned to hearing on
substantial questions of law. Interference with finding of fact
by the High Court is not warranted if it involves
reappreciation of evidence (see Panchugopal Barua v.
Umesh Chandra Goswami [(1997) 4 SCC 713] and Kshitish
Chandra Purkait v. Santosh Kumar Purkait [(1997) 5 SCC
438] ). The High Court has not even discussed any evidence.
No basic finding of fact recorded by the courts below has
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been reversed much less any reason assigned for taking a
view contrary to that taken by the courts below. The finding
on the question of readiness and willingness to perform the
contract which is a mixed question of law and fact has been
upset. It is statutorily provided by Section 16(1)(c) of the Act
that to succeed in a suit for specific performance of a
contract the plaintiff shall aver and prove that he has
performed and has always been ready and willing to
perform the essential terms of the contract which were to be
performed by him other than the terms the performance of
which has been prevented or waived by the defendant.
18. In yet another judgment in case of Ram Prasad Rajak
v/s. Nand Kumar and Bros. and Another [(1998) 6 SCC 748],
the Hon'ble Apex Court has held that once the proceeding in the
High Court is treated as a Second Appeal under Section 100
CPC, the restrictions prescribed in the said Section would come
into play. The High Court could and ought to have dealt with the
matter as a Second Appeal and found out whether a substantial
question of law arose for consideration. Unless there was a
substantial question of law, the High Court had no jurisdiction
to entertain the Second Appeal and consider the merits.
19. In Hero Vinoth v/s. Seshammal [(2006) 5 SCC 545], the
Hon'ble Apex Court followed the judgment in the case of Sir
Chunnilal V. Lal Mehta and Sons v/s. Century Spinning and
Manufacturing Co. Ltd. [AIR 1962 SC 1314] and held as under :-
"21. The phrase substantial question of law, as occurring in
the amended Section 100 CPC is not dened in the Code. The
word substantial, as qualifying question of law, means of
having substance, essential, real, of sound worth, important
or 4 AIR 1962 SC 1314 5 AIR 1951 Mad 969 6 (2006) 5 SCC
545 considerable. It is to be understood as something in
contradistinction with technical, of no substance or
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consequence, or academic merely. However, it is clear that
the legislature has chosen not to qualify the scope of
substantial question of law by suxing the words of general
importance as has been done in many other provisions such
as Section 109 of the Code or Article 133(1)(a) of the
Constitution . The substantial question of law on which a
second appeal shall be heard need not necessarily be a
substantial question of law of general importance. In Guran
Ditta v. Ram Ditta [AIR 1928 PC 172] the phrase "substantial
question of law" as it was employed in the last clause of the
then existing Section 100 CPC (since omitted by the
Amendment Act, 1973) came up for consideration and their
Lordships held that it did not mean a substantial question of
general importance but a substantial question of law which
was involved in the case. In Sir Chunilal case [1962 Supp (3)
SCR 549 : AIR 1962 SC 1314] the Constitution Bench
expressed agreement with the following view taken by a Full
Bench of the Madras High Court in Rimmalapudi Subba Rao
v. Noony Veeraju [AIR 1951 Mad 969 : (1951) 2 MLJ 222
(FB)] : (Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962
SC 1314] , SCR p. 557).
When a question of law is fairly arguable, where there is
room for difference of opinion on it or where the Court
thought it necessary to deal with that question at some
length and discuss alternative views, then the question
would be a substantial question of law. On the other hand if
the question was practically covered by the decision of the
highest court or if the general principles to be applied in
determining the question are well settled and the only
question was of applying those principles to the particular
fact of the case it would not be a substantial question of
law."
21. To entertain Second Appeal under section 100 of CPC, three
conditions have been recognized to disturb finding of facts viz.
the courts below have ignored material evidence or acted on no
evidence; (ii) the courts have drawn wrong inferences from
proved facts by applying the law erroneously; or (iii) the courts
have wrongly cast the burden of proof. Thus, decision based on
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no evidence, does not refer only to cases where there is a total
dearth of evidence, but also refers to case, where the evidence,
taken as a whole, is not reasonably capable of supporting the
finding.
22. Applying aforesaid principle to the facts of the present
case, appellant fails to make out case for admission of Second
Appeal since no substantial question of law arise. Resultantly,
the Second Appeal stands dismissed at admission stage.
23. The land of survey no.50 being subject matter of the lis, is
admittedly Government land. The Collector concerned thus, is
reminded to remove encroachment upon it and to vest the same
in State Government following due process and to report this
Court within four weeks.
(J. C. DOSHI,J)
SATISH
