Gangadhar Lrs Of Tani Bai(Dead) ... vs Bhagwat Vahne
2023 Latest Caselaw 2569 MP

                           1            S.A. No.571/1999


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                         BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
              ON THE 13th OF FEBRUARY, 2023
              SECOND APPEAL No. 571 of 1999
BETWEEN:-

1.   TANIBAI WD/O OF PAIKU     MAHAR
     (DEAD) THROUGH LRS:

A.   GANGADHAR S/O LATE JHANAKLAL
     MESHRAM (DEAD) THROUGH LRS:

a.   SMT. JAYMALA MESHRAM WD/O SHRI
     GANGADHAR RAO MESHRAM, AGED
     ABOUT 37 YEARS R/O MAYA KA BADA,
     DURGA MANDIR, BADAI MOHALLA,
     FOOTATAL, JABALPUR, TAHSIL AND
     DISTRICT    JABALPUR    (MADHYA
     PRADESH)



b.   MAYANK MESHRAM S/O LATE SHRI
     GANGADHAR RAO MESHRAM, AGED
     ABOUT 17 YEARS, OCCUPATION:
     MINOR THROUGH THEIR NATURAL
     GUARDIAN MOTHER SMT. JAYAMALA
     MESHRAM R/O MAYA KA BADA, DURGA
     MANDIR,     BADAI     MOHALLA,
     FOOTATAL, JABALPUR, TEHSIL AND
     DISTRICT   JABALPUR    (MADHYA
     PRADESH)



c.   PRACHI MESHRAM S/O LATE SHRI
     GANGADHAR RAO MESHRAM, AGED
     ABOUT 14 YEARS, OCCUPATION:
     MINOR THROUGH THEIR NATURAL
     GUARDIAN MOTHER SMT. JAYAMALA
     MESHRAM R/O MAYA KA BADA, DURGA
     MANDIR,     BADAI     MOHALLA,
     FOOTATAL, JABALPUR, TEHSIL AND
     DISTRICT   JABALPUR    (MADHYA
                              2            S.A. No.571/1999


     PRADESH)



d.   PRANALI MESHRAM S/O LATE SHRI
     GANGADHAR RAO MESHRAM, AGED
     ABOUT 13 YEARS, OCCUPATION:
     MINOR THROUGH THEIR NATURAL
     GUARDIAN MOTHER SMT. JAYAMALA
     MESHRAM R/O MAYA KA BADA, DURGA
     MANDIR,     BADAI     MOHALLA,
     FOOTATAL, JABALPUR, TEHSIL AND
     DISTRICT   JABALPUR    (MADHYA
     PRADESH)



e.   SHANTANU MESHRAM S/O LATE SHRI
     GANGADHAR RAO MESHRAM, AGED
     ABOUT 10 YEARS, OCCUPATION:
     MINOR THROUGH THEIR NATURAL
     GUARDIAN MOTHER SMT. JAYAMALA
     MESHRAM R/O MAYA KA BADA, DURGA
     MANDIR,     BADAI     MOHALLA,
     FOOTATAL, JABALPUR, TEHSIL AND
     DISTRICT   JABALPUR    (MADHYA
     PRADESH)



B.   ARUN   KUMAR     S/O   LATE   SHRI
     JHANAKLAL MESHRAM, AGED ABOUT
     30 YEARS, R/O MAYA KA BADA, DURGA
     MANDIR,       BADAI      MOHALLA,
     FOOTATAL, JABALPUR, TEHSIL AND
     DISTRICT     JABALPUR     (MADHYA
     PRADESH)



C.   ANIL   KUMAR     S/O  LATE    SHRI
     JHANAKLAL MESHRAM, AGED ABOUT
     35 YEARS, R/O MAYA KA BADA, DURGA
     MANDIR,       BADAI     MOHALLA,
     FOOTATAL, JABALPUR, TEHSIL AND
     DISTRICT     JABALPUR    (MADHYA
     PRADESH)
                              3                S.A. No.571/1999



2.    SEVAKRAM S/O PAIKU MAHAR (DEAD)
      THROUGH LRS:



a.    SULOCHNA MESHRAM W/O SEVAKRAM
      MESHRAM, AGED ABOUT 42 YEARS, R/O
      WARD NO 6, BEHIND JAIHIND TALKIES
      BALAGHAT (MADHYA PRADESH)




b.    SWAPNIL MESHRAM S/O SEVAKRAM
      MESHRAM, AGED ABOUT 22 YEARS, R/O
      WARD NO 6, BEHIND JAIHIND TALKIES
      BALAGHAT (MADHYA PRADESH)



c.    ASHU MESHRAM S/O SEVAKRAM
      MESHRAM, AGED ABOUT 20 YEARS, R/O
      WARD NO 6, BEHIND JAIHIND TALKIES
      BALAGHAT (MADHYA PRADESH)



d.    KU. SWETA D/O SEVAKRAM MESHRAM,
      AGED ABOUT 18 YEARS, R/O WARD NO
      6,   BEHIND     JAIHIND   TALKIES
      BALAGHAT (MADHYA PRADESH)


                                               .....APPELLANT
(BY SHRI RAVISH AGRAWAL - SENIOR ADVOCATE WITH SHRI SAKET
MALIK - ADVOCATE )

AND

1.   BHAGWAT VAHNE S/O PANDU VAHNE,
     AGED ABOUT 43 YEARS, R/O WARD NO
     10, BALAGHAT, TEHSIL AND DISTRICT
     BALAGHAT (MADHYA PRADESH)



2.   RAMESH RISHIKAR S/O HIRAMAN
     MAHAR, AGED ABOUT 26 YEARS, R/O
                                 4                   S.A. No.571/1999


     WARD NO 10 , DISTRICT BALAGHAT
     (MADHYA PRADESH)



3.   JN. DONGRE S/O NOT MENTION, AGED
     ABOUT   32   YEARS,  OCCUPATION:
     TEACHER     MUNICIPAL    SCHOOL
     BALAGHAT     R/O    WARD    NO.10
     BALAGHAT (MADHYA PRADESH)



4.   GANGADHAR RAO (NAME DELETED AS
     PER ORDER DATED 01.09.2015)



5.   ARUN KUMAR (NAME DELETED AS PER
     ORDER DATED 01.09.2015)



6.   ANIL KUMAR (NAME DELETED AS PER
     ORDER DATED 01.09.2015)




7.   MOTIRAM S/O BAKARAM MAHAR R/O
     MOUJA LAVERI PATWARI HALKA NO.8
     TAHSIL AND DISTRICT BALAGHAT
     (MADHYA PRADESH)



8.   PANJIYAT LOK NYAY BALAGHAT I.E.
     SUB DIVISIONAL OFFICER, BALAGHAT,
     OFFICE,   TAHSIL   AND    DISTRICT
     BALAGHAT (MADHYA PRADESH)


                                                  .....RESPONDENTS
(BY SHRI PRADEEP KUMAR NAVERIYA - ADVOCATE)
.........................................................................................................
Reserved on : 09.02.2023
Pronounced on : 13.02.2023

     This appeal having been heard and reserved for judgment,
coming on for pronouncement this day, the court passed the following:
                                    5                    S.A. No.571/1999




                             JUDGMENT

This Second Appeal under Section 100 of Civil Procedure Code has been filed against the judgment and decree dated 15-1-1999 passed by 2nd Additional District Judge, Balaghat in Civil Appeal No. 37-A/98 arising out of judgment and decree dated 17-71-995 passed by Civil Judge Class II, Balaghat in Civil Suit No. 94A/94.

2. The Appellants are the plaintiffs who have lost their case from both the Courts below.

3. The facts necessary for disposal of present appeal in short are that the original plaintiff Bhagwat Vahane filed a civil suit against the original defendants Ramesh Rishikar and others for permanent injunction. It is the case of the plaintiff that for the residence of depressed students, a house was constructed in Ward No.10. Since, the depressed students had no place to stay therefore, the people collected money by donation and deposited with Bakaram son of Atmaram, so that a plot can be purchased for constructing a house for using the same as a boarding house. This was done sometime in the year 1934. On 14- 3-1934, Bakaram purchased the plot from Bakar Mohd. for a consideration amount of Rs. 60/- and got the possession thereof. Accordingly a boarding house was constructed for the use and stay of depressed students. Paikuji was appointed as Sarvaharakar for the management of the land. Paikuji was residing in the middle room situated on the ground floor and he was taking care of the building as well as the students staying in the said boarding house. Paikuji let out a part of the building to one Kanhaiya on a monthly rent of Rs. 3/-. Since, Kanhaiya was not making payment of rent, therefore, Paikuji in the

capacity of Sarvaharakar, filed a civil suit no. 19A/1963 which was decreed on 18-9-1963 and got the vacant possession. Similarly some part of the building was let out to Samalu and since, he was also not making payment of rent, therefore, suit no. 18A/1963 was instituted by Paikuji in the capacity of Sarvaharakar and got the vacant possession on 30-7-1963. Paikuji was always treating himself as Sarvaharakr and he never claimed ownership of the property.

4. The original defendants no. 5 is the widow of Paikuji and defendant no. 7 is the son of Paikuji. Paikuji expired some times in 1966. After the death of Paikuji, the defendants no. 5, 7 and Jhanakram started looking after the property in place of Paikuji. They were also keeping the income with themselves. On 15th of March 1976, when the plaintiff demanded the accounts, then defendants no. 5,7 and Jhanakram refused to give the accounts and started claiming that they are the owners of the property. Thereafter the plaintiff collected the record of the Municipal Corporation and came to know that the defendants have got their names mutated in the record. It was pleaded that mutation would not confer any right or title to them. At present Ramesh, Defendant no.1 is residing in a room situated on the eastern side on a monthly rent of Rs. 30/- and defendant no.2 is residing in a room on the western side of the property on a monthly rent of Rs.20/-. The defendant no.3 is residing on the first floor on a monthly rent of Rs. 15/- and defendant no. 4 is also residing in another room on first floor on monthly rent of Rs. 5/-. It was further pleaded that the defendants no. 5, 7 and Jhanakram are not utilizing the rent for the benefit of depressed students and are using the same for their own personal use. Accordingly permanent injunction was sought that the defendants no. 5, 7 and legal

heirs of Jhanakram have no right or title to recover rent from the tenants and also for declaration that the property in dispute is for the benefit of the members of depressed society.

5. The defendants no. 1,2,4,5,6 and 7 filed their joint written statement and denied that the house in question was constructed for the benefit of depressed students. On the contrary, it was claimed that the property in dispute is in the ownership and possession of defendants no. 5,6 and 7. The sale of land by Bakar Mohd. by sale deed dated 14-3- 1934 for a consideration amount of Rs. 60/- was denied. It was claimed that the house in question was never utilized for the depressed students. It was denied that Paikuji was appointed as Sarvaharakar, but it was claimed that the house in question was constructed by Paikuji and he was the owner and in possession of the same. However, it was admitted that Paikuji in the capacity of Sarvaharakar, had filed a civil suit against Kanhaiya and Samlu for eviction and on the basis of decree, had got the vacant possession from the tenants. It was claimed that in fact a decree was obtained by one Babhutmal against Paikuji and in order to save property from attachment, Paikuji had declared himself as Sarvaharakar of depressed class, but in fact Paikuji was the owner and in possession of the said house. After the death of Paikuji, the defendants no. 5 to 7 are looking after the property and are keeping the income for their personal use. Thus, in nutshell, it was claimed by the defendants no. 5 to 7 that Paikuji was the owner and in possession of the property in question and after his death, the defendants no. 5 to 7 are the owners and in possession of the property in dispute. It was further claimed that even otherwise, by way of adverse possession, the defendants have perfected their title.

6. The Trial Court after framing issues and recording evidence, decreed the suit.

7. Being aggrieved by the judgment and decree passed by the Trial Court, the Appellants preferred an appeal, which too was dismissed by the First Appellate Court.

8. This Second Appeal has been admitted on the following Substantial Questions of Law :

A. Whether earlier admission by Paikuji was sufficiently explained and withdrawn and was not binding upon defendant/Appellants?

B. Whether Paikuji and after him defendant/appellants have prescribed title by adverse possession?

9. The decree passed in Civil Suit No. 18-A/1963 instituted by Paikuji in the capacity of Sarvaharakar is Ex. P.19. Similarly, the decree passed in Civil Suit No. 19-A/1963 instituted by Paikuji in the capacity of Sarvaharakar is Ex. P.21. The copy of plaint filed in C.S. No. 18-A/1963 is Ex. P.23. Similarly, the copy of plaint filed in C.S. No. 19-A/1963 is Ex. P.24. The copy of the Khasra Panchsala of the year 1959-60 to 1963-63 is Ex. P.25 in which the name of Depressed Students Federation is mentioned as Bhumiswami, Khasra of 63-64 is Ex. P.26 and of 1965-66 to 66-67 is Ex. P.27 in which the Depressed Students Federation is mentioned as Bhumiswami. The Trust Depressed Class Federation is a registered as Public Trust.

10. The defendants have not filed any document to show the ownership of Paikuji and thereafter of the defendants no. 5 to 7. Although it was claimed by the defendants no. 5 to 7 that one decree

was obtained by Bhabutmal against Paikuji, and Paikuji in order to save the property in dispute from attachment had falsely declared himself as Sarvaharakar, but even the said decree has not been filed. Furthermore, there is no whisper of any such decree in the evidence of the defence witnesses. Thus, it is clear that the defence taken by the appellants that in order to save the property in dispute from attachment in execution of decree obtained by Bhabhutmal, Paikuji had declared himself to be Sarvaharakar of the property is false and baseless.

11. In the light of the decrees Ex. P. 19 and P.21 passed in C.S. No. 18-A/1963 and 19-A/1963 which was instituted by Paikuji in the capacity of Sarvaharakar of the property, coupled with the fact that the defendants/appellants failed to prove their defence, this Court is of the considered opinion, that the first Substantial Question of Law has to be answered in negative. Therefore, it is held that earlier admission made by Paikuji is not only binding on the Appellants, but even the defendants have failed to prove their ownership.

12. So far as the question of adverse possession is concerned, the same would not apply under the facts and circumstances of the case. In order to claim adverse possession, the defendants have to admit the ownership of the true owner. In the present case, the appellants have claimed their possession in the capacity of an owner, whereas it is the case of the plaintiffs that the defendants were in permissive possession being Sarvaharakar of the property in dispute. This Court has also come to a conclusion that Paikuji was appointed as Sarvaharakar of the property to look after the property as well as to look after the students of depressed society. Thus, it is clear that the possession of the appellants was permissive in nature. It is well established principle of law that

permissive possession will never turn into an adverse possession. A person who bases his title of adverse possession must show by clear and unequivocal evidence that his title was hostile to the true owner and amounted to denial of his title.

13. The Supreme Court in the case of Hemaji Waghaji Jat Vs. Bhikabhai Khengarbhai Harijan and others reported in (2009) 16 SCC 517 has held as under:

14. In Secy. of State for India In Council v. Debendra Lal Khan [(1933-34) 61 IA 78 : AIR 1934 PC 23] it was observed that the ordinary classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario and the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.

15. This Court in P. Lakshmi Reddy v. L. Lakshmi Reddy [AIR 1957 SC 314], while following the ratio of Debendra Lal Khan case [(1933-34) 61 IA 78 : AIR 1934 PC 23], observed as under : (P. Lakshmi Reddy case [AIR 1957 SC 314] , AIR p. 318, para 4) "4. ... But it is well-settled that in order to establish adverse possession of one co-

heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is

presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster."

The Court further observed thus : (P.

Lakshmi Reddy case [AIR 1957 SC 314] , AIR p. 318, para 4) "4. ... the burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession."

16. In S.M. Karim v. Bibi Sakina [AIR 1964 SC 1254], Hidayatullah, J. speaking for the Court observed as under : (AIR p. 1256, para 5) "5. ... Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for 'several 12 years' or that the plaintiff had acquired 'an absolute title' was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea."

   17. The              facts             of R.
Chandevarappa v. State                       of

Karnataka [(1995) 6 SCC 309] are similar

to the case at hand. In this case, this Court observed as under : (SCC p. 314, para 11) "11. The question then is whether the appellant has perfected his title by adverse possession. It is seen that a contention was raised before the Assistant Commissioner that the appellant having remained in possession from 1968, he perfected his title by adverse possession. But the crucial facts to constitute adverse possession have not been pleaded. Admittedly the appellant came into possession by a derivative title from the original grantee. It is seen that the original grantee has no right to alienate the land. Therefore, having come into possession under colour of title from original grantee, if the appellant intends to plead adverse possession as against the State, he must disclaim his title and plead his hostile claim to the knowledge of the State and that the State had not taken any action thereon within the prescribed period. Thereby, the appellant's possession would become adverse. No such stand was taken nor evidence has been adduced in this behalf. The counsel in fairness, despite his research, is unable to bring to our notice any such plea having been taken by the appellant."

18. In D.N. Venkatarayappa v. State of Karnataka [(1997) 7 SCC 567 : (1998) 2 CLJ 414] this [Ed. : The extract quoted herein below is taken from the observations of the learned Single Judge of the High Court in an order involved in D.N.

Venkatarayappa case, (1997) 7 SCC 567.] Court observed as under : (SCC p. 571b-c, para 3) "Therefore, in the absence of crucial pleadings, which constitute adverse possession and evidence to show that the

petitioners have been in continuous and uninterrupted possession of the lands in question claiming right, title and interest in the lands in question hostile to the right, title and interest of the original grantees, the petitioners cannot claim that they have perfected their title by adverse possession...."

19. In Md. Mohammad Ali v. Jagadish Kalita [(2004) 1 SCC 271] this Court observed as under : (SCC p. 277, paras 21-

22) "21. For the purpose of proving adverse possession/ouster, the defendant must also prove animus possidendi.

22. ... We may further observe that in a proper case the court may have to construe the entire pleadings so as to come to a conclusion as to whether the proper plea of adverse possession has been raised in the written statement or not which can also be gathered from the cumulative effect of the averments made therein."

20. In Karnataka Board of Wakf v. Govt. of India [(2004) 10 SCC 779] at para 11, this Court observed as under : (SCC p. 785) "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." The Court further observed that : (SCC p. 785, para 11) "11. ... 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. 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."

21. In Saroop Singh v. Banto [(2005) 8 SCC 330] this Court observed : (SCC p.

340, paras 29-30) "29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak [(2004) 3 SCC 376] .)

30. 'Animus possidendi' is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case,

the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Md. Mohammad Ali v. Jagdish Kalita [(2004) 1 SCC 271] .)"

22. This principle has been reiterated later in M. Durai v. Muthu [(2007) 3 SCC 114] . This Court observed as under : (SCC p. 116, para 7) "7. ... in terms of Articles 142 and 144 of the old Limitation Act, the plaintiff was bound to prove his title as also possession within twelve years preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession."

23. This Court had an occasion to examine the concept of adverse possession in T. Anjanappa v. Somalingappa [(2006) 7 SCC 570]. The Court observed that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his title was hostile to the real owner and amounted to denial of his title to the property claimed. The Court further observed that : (SCC p. 577, para 20) "20. ... The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."

24. In a relatively recent case in P.T. Munichikkanna Reddy v. Revamma [(2007) 6 SCC 59] this Court again had an occasion to deal with the concept of adverse possession in detail. The Court also examined the legal position in various countries particularly in English and American systems. We deem it appropriate to reproduce relevant passages in extenso. The Court dealing with adverse possession in paras 5 and 6 observed as under : (SCC pp. 66-67) "5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. (See Downing v. Bird [100 So 2d 57 (Fla 1958)]; Arkansas Commemorative Commission v. City of Little Rock [227 Ark 1085 : 303 SW 2d 569 (1957)] ; Monnot v. Murphy [207 NY 240 : 100 NE 742 (1913)] ; City of Rock Springs v. Sturm [39 Wyo 494 : 273 P 908 : 97 ALR 1 (1929)] .)

6. Efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which right to access the court expires through efflux of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut

off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title.

(See American Jurisprudence, Vol. 3, 2d, p. 81.) It is important to keep in mind while studying the American notion of adverse possession, especially in the backdrop of limitation statutes, that the intention to dispossess cannot be given a complete go- by. Simple application of limitation shall not be enough by itself for the success of an adverse possession claim."

14. The Supreme Court also in the case of Nand Ram (Dead) Through Legal Representatives And others vs. Jagdish Prasad (Dead) Through Legal Representatives reported in (2020) 9 SCC 393 has held as under:

"42 ..... In the present proceedings, the respondent has denied his status as that of a tenant but claimed title in himself. The respondent claimed adverse possession and claimed possession as owner against a person, who has inducted him as tenant. The respondent was to prove his continuous, open and hostile possession to the knowledge of true owner for a continuous period of 12 years. The respondent has not led any evidence of hostile possession to the knowledge of true owner at any time before or after the award of the Reference Court nor has he surrendered possession before asserting

hostile, continuous and open title to the knowledge of the true owner. The question of adverse possession without admitting the title of the real owner is not tenable. Such question has been examined by this Court in Uttam Chand v. Nathu Ram [(2020) 11 SCC 263]."

15. In the present case, the appellants were the Manager of the property and were holding the property of the plaintiff on behalf of the plaintiff.

16. The Supreme Court in the case of A. Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam represented by its President and others reported in (2012) 6 SCC 430 has held as under:

43.6 and 43.7 "43.6. The watchman, caretaker or a servant employed to look after the property can never acquire interest in the property irrespective of his long possession. The watchman, caretaker or a servant is under an obligation to hand over the possession forthwith on demand. According to the principles of justice, equity and good conscience, the courts are not justified in protecting the possession of a watchman, caretaker or servant who was only allowed to live into the premises to look after the same.

43.7. The watchman, caretaker or agent

holds the property of the principal only on behalf of the principal. He acquires no right or interest whatsoever in such property irrespective of his long stay or possession."

17. Thus, by no stretch of imagination, it can be said that the appellants have perfected their title by way of adverse possession. The appellants were merely the Manager and they were holding the property on behalf of the plaintiffs. They were in permissive possession and the defendants by filing their written statement did not accept the title of the plaintiffs, therefore, it cannot be said that their possession was hostile and animus to the knowledge of the true owner. Accordingly, the second substantial question of law is also answered in negative.

18. No other argument is advanced by the counsel for the appellants.

19. Ex-consequenti, judgment and decree dated 15-1-1999 passed by 2nd Additional District Judge, Balaghat in Civil Appeal No. 37-A/98 as well as judgment and decree dated 17-71-995 passed by Civil Judge Class II, Balaghat in Civil Suit No. 94A/94 are hereby Affirmed.

20. The appeal fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE Shanu Digitally signed by SHANU RAIKWAR Date: 2023.02.13 18:01:34 +05'30'