Madhya Pradesh High Court
Kallu vs Ashok Kumar Chaudhary S/O Shri Babu Lal ... on 24 February, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO.2025:MPHC-GWL:4572
1 SA. No. 1730 of 2023
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 24th OF FEBRUARY, 2025
SECOND APPEAL No. 1730 of 2023
KALLU AND OTHERS
Versus
ASHOK KUMAR CHAUDHARY S/O SHRI BABU LAL CHAUDHARY
(DEAD) THROUGH LEGAL HEIRS PRAMILA AND OTHERS
Appearance:
Shri Vibhor Kumar Sahu - Advocate for appellants.
Shri Rohit Bansal- Advocate for respondents No.1 to 5.
JUDGMENT
This Second Appeal, under Section 100 of CPC has been filed against
judgment and decree dated 12.05.2023 passed by Principal District Judge, Ashok
Nagar, District Ashok Nagar (M.P.) in Regular Civil Appeal No.19/2023 arising
out of judgment and decree dated 30.11.2022 passed by First Civil Judge, Senior
Division, Ashok Nagar, in RCSA No.22/2019.
2. Facts, necessary for disposal of the present appeal, in short, are that
plaintiffs/appellants filed a suit for declaration of title, possession and permanent
injunction in respect of Survey No.467 min area 01 hectare, Survey No.665 area
0.515 hectare, Survey No.463 area 0.722 hectare, Survey No.464 area 0.568
hectare, Survey No.434 area 01 hectare, Survey No.444 area 1.129 hectares,
Survey No.468 area 1.526 hectare, Survey No.467 area 3 bigha and Survey
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No.466 area 0.212 hectare situated in village Maroop, Tahsil and District Ashok
Nagar.
3. It is the case of plaintiffs that Survey No.467 area 01 hectare was given to
Tofan Singh on government lease by order dated 31.12.1976. Survey No.465 area
0.515 hectare was given to Kallu. Similarly, plaintiff No.3 Bhanwarlal was given
0.722 hectare forming part of Survey No.463, plaintiff No.4-Kamla was given
0.568 hectare forming part of Survey No.464, Kunja and his brother Kallu were
given 01 hectare forming part of Survey No.434, Chatta and Faudu were given
1.129 hectare forming part of Survey No.444, Khachora was given 1.526 hectare
forming part of Survey No.468, Udham was given 3 bighas of land forming part
of Survey No.467 and 0.212 hectare of land forming part of Survey No.466 on
government lease. Names of plaintiffs were recorded as government lessees and
accordingly Rin Pustikas were also issued. Apart from plaintiffs, land on
government lease was also given to other poor agriculturists. These lands were
non-transferable and were given only for agricultural purposes. In spite of the fact
that these lands were non-transferable, sale-deed was executed mentioning that
the land was not government land. Accordingly, it was claimed that even if some
alienation has taken place, then it is contrary to law and the lands were alienated
without permission of Collector. It was also the case of plaintiffs that they had
never executed the sale-deed. However, defendant No.1 in connivance with the
revenue authorities has got the land transferred in his name and is now trying to
divide it into plots and trying to alienate the same. It was further pleaded that
plaintiffs were never made party in any revenue proceedings and thus it was
claimed that plaintiffs be declared as Bhumiswamis and decree for possession
may also be given apart from permanent injunction.
4. Defendant No.1 filed his written statement and claimed that partition had
already taken place about 18-19 years back and the same was also recorded in the
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revenue records. It was further pleaded that plaintiff No.10-Damrulal has also
filed suit for declaration of title and permanent injunction in respect of Survey
No.466 area 0.212 hectare which is also pending in the Court. It was further
pleaded that defendant No.1 is the sole owner and is in possession of property in
dispute which is adjoining to the building of District Court, Ashok Nagar and also
adjoining to Guna-Ashok Nagar road, therefore, it is a valuable land and thus the
suit has been filed with the solitary intention to harass defendant No.1. The
Tahsildar, Ashok Nagar, had passed an order pertaining to the sale of land and
even the Board of Revenue had held that since the government lessees had
acquired Bhumiswami rights after 10 years of grant of Patta, therefore, alienation
of land without permission of Collector is valid. It was further pleaded that
defendant No.1 has purchased land in dispute from the plaintiffs by different sale
deeds as mentioned in the written statement. It was further pleaded that by
judgment and decree dated 29.06.2013 passed by First Civil Judge Class I in
RCSA No.12A/2011, defendant No.1 has been held to be the owner of the Survey
No.466/2 and 466/4 and Regular Civil Appeal No.95A/14 has also been
dismissed. It was further pleaded that plaintiffs have not challenged the order of
mutation which was passed in favour of defendant No.1. They have not sought
declaration of sale-deed as null and void. The suit is barred by time.
5. Defendant No.2 also filed his written statement and claimed that the suit is
a collusive suit. No order sheets, no copy of Patta etc. have been filed to show
that on what date patta was granted to whom. Defendant No.2 has mentioned case
No.151A-19/1975-76 but that case is not in respect of village Maroop but it is in
respect of village Rusallabujurg. Thus, it was claimed that the land is a
government land and Pattas are forged documents and accordingly it was prayed
that a direction be issued to register FIR against the persons who have prepared
forged pattas.
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6. The Trial Court by judgment and decree dated 30.11.2022 dismissed the
suit. It was held that the plaintiffs have failed to prove that the land in dispute was
ever given to them on Patta and accordingly they are not entitled for possession.
Being aggrieved by the said judgment, plaintiffs preferred an appeal which too
has been dismissed by the Appellate Court.
7. Challenging the judgment and decree passed by the courts below, it is
submitted by counsel for appellants that appellants have perfected their title by
way of adverse possession and proposed following substantial questions of law:-
1. Whether the judgment/decree passed by two courts below is not
tenable in the eyes of law?
2. Whether, the appellant is in continuous possession since more than
long time ago?
3. Whether, the respondent/defendant is interfering in peaceful
possession of the appellant/plaintiff?
4. Whether in the facts and circumstances the impugned judgment and
decree passed by learned first appellate court as well as trial court is
illegal and without jurisdiction?
5. Whether the findings recorded by the learned first appellate court in
the impugned judgment are not based on oral and documentary
evidence on record while being a perverse finding?
6. Whether the judgment and decree passed by the learned courts below
is not maintainable as long possession of the appellant continue over
the agricultural land, therefore, be declared as Bhumiswami over the
agricultural land?
8. During the course of arguments, it was fairly conceded by counsel for
appellants that appellants have not set-up their case on the basis of adverse
possession.
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9. It is well established principle of law that in order to claim the decree on
the basis of adverse possession, plaintiff has to admit the title of true owner.
10. 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
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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
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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
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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
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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
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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
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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."
11. 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
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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]."
12. 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. 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."
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In this case, appellants/plaintiffs have claimed their title on the basis of
Patta which was neither produced nor could be proved by them. Once plaintiffs
have failed to prove that any Patta was granted to them, then it is clear that
they had no right or title to alienate the property. Once the trial court has
dismissed the suit on the ground that the plaintiffs have failed to prove that
any Patta was granted to them, therefore, in the light of well established
principle of law that a vendor cannot transfer the title better than what he
himself has, it is clear that even on the basis of sale-deed executed by
plaintiffs, no right or title stood transferred to defendant No.1 also.
13. Since the plaintiffs themselves have stated that defendant No.1 is in
possession and they had prayed for decree of possession, therefore, it is clear that
they have failed to prove that they have perfected their title against true owner.
Accordingly, no substantial question of law arises in the present case.
Therefore, the Collector, Ashok Nagar, is directed to take up the issue and
declare the land in dispute as Government land and take possession of the same.
Let the entire proceedings be completed within 06 months from today.
14. Ex consequenti, appeal fails and is hereby dismissed with aforesaid
directions.
15. Let a copy of this judgment be sent to Collector, Ashok Nagar, for
necessary information and compliance.
(G.S. Ahluwalia)
Judge
(and)
