Madhya Pradesh High Court
Ashok Kumar Verma vs Narman Singh Dhakad on 20 May, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 20th OF MAY, 2025
MISC. PETITION No. 2490 of 2025
ASHOK KUMAR VERMA AND OTHERS
Versus
NARMAN SINGH DHAKAD AND OTHERS
Appearance:
Shri Faiz Ahmed - Advocate for petitioners.
Shri Jitesh Sharma - Government Advocate for State.
ORDER
This miscellaneous petition under Article 227 of Constitution of India
has been filed against the order dated 29.01.2025 passed by Vth Civil Judge,
Junior Division, Shivpuri in RCSA No.133/2024 by which an application
under Order 1 Rule 10 CPC filed by Prem Adiwasi and Kushuma @
Kushum W/o Sukha Adiwasi has been allowed.
2. It is submitted by counsel for petitioners that petitioners had entered
into an agreement to purchase the land in dispute from Luma W/o Soma
Adiwasi, Sheela D/o Soma Adiwasi, Kushuma @ Kushum Adiwasi D/o
Soma by executing an agreement to sell. It is the claim of petitioner that by
virtue of said agreement to sell, they are in possession of the property in
dispute. However, it is fairly conceded by counsel for petitioners that
agreement to sell was never converted into a registered sale deed. It is the
case of petitioners that since they are in possession of the property in dispute
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by virtue of agreement to sell, therefore, original defendants have no right or
title to forcibly evict them or dispossess them and accordingly, a suit for
permanent injunction was filed against the defendants thereby seeking a
decree that defendants be permanently restrained from interfering with the
peaceful possession of petitioners over Survey No.21 area 2.1000
hectare, Survey No.22 area 2.0900 hectare and Survey No.24 area 2.8200
hectare situated in Village Kalothra, Tahsil and District Shivpuri. An
application under Order 1 Rule 10 CPC was filed by persons who had entered
into an agreement to sell and by impugned order, application has been allowed.
3 . Challenging the said application, it is submitted by counsel for
petitioners that petitioners are the dominus litis and they have not claimed any
relief against the persons from whom they had agreed to purchase the property,
therefore, Court below should not have impleaded them as additional defendants.
4. Considered the submissions made by counsel for petitioners.
5. Petitioners have filed a suit for permanent injunction only. Declaration
of title has not been sought. According to the petitioners themselves, they are in
possession by virtue of an agreement to sell. No right or title in the property
stands transferred to the intending purchaser on the strength of agreement to sell.
Thus, it is clear that petitioners are not the owners of disputed property. It is the
claim of petitioners that they are seeking protection of their possession which they
got by virtue of an agreement to sell.
6. Section 53A of Transfer of Property Act reads as under:-
[53A. Part performance. - Where any person contracts to transfer
for consideration any immoveable property by writing signed by
him or on his behalf from which the terms necessary to constitute
the transfer can be ascertained with reasonable certainty,
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and the transferee has, in part performance of the contract, taken
possession of the property or any part thereof, or the transferee,
being already in possession, continues in possession in part
performance of the contract and has done some act in furtherance
of the contract,
and the transferee has performed or is willing to perform his part
of the contract,
then, notwithstanding that [***] where there is an instrument of
transfer, that the transfer has not been completed in the manner
prescribed therefor by the law for the time being in force, the
transferor or any person claiming under him shall be debarred
from enforcing against the transferee and persons claiming under
him any right in respect of the property of which the transferee
has taken or continued in possession, other than a right expressly
provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a
transferee for consideration who has no notice of the contract or of
the part performance thereof.]"
7 . Unless and until the petitioners plead and prove that they have also
performed their part of contract or they are ready to perform remaining part of
their contract, they will not be entitled to protect their possession under Section
53A of Transfer of Property Act. Even otherwise, whether the petitioners are
entitled to protect their possession or not can be considered only if the persons
who had entered into agreement to sell their property are made party. The persons
with whom petitioners had entered into an agreement were not impleaded by
petitioners as defendants and now the owners who had allegedly executed an
agreement to sell in favour of petitioners have filed an application under Order 1
Rule 10 CPC. It is well established principle of law that a suit for permanent
injunction is maintainable only if the title is not in dispute. However where the
title is in dispute then plaintiff must seek a declaration of his title also and a suit
simplicitor for permanent injunction would not be maintainable. As already held,
petitioners are not the owners as no right or title would stand transferred to the
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petitioners by virtue of agreement to sell. Furthermore, it is the case of the
petitioners themselves that they are in permissive possession. In absence of
original owner, plaintiff cannot claim his adverse possession.
8. The Supreme Court in the case of Shri Uttam Chand (D) Through LRs
Vs. Nathu Ram (D) Through LRs decided on 15.01.2020 in Civil Appeal
No.190/2020 has held as under:-
"14. As to whether the plaintiff can claim title on the basis of
adverse possession, this Court in a judgment reported as Ravinder
Kaur Grewal & Ors. v. Manjit Kaur & Ors. has held as under:
"60. The adverse possession requires all the three
classic requirements to co-exist at the same time,
namely, nec vi i.e. adequate in continuity, nec clam i.e.
adequate in publicity and nec precario i.e. adverse to a
competitor, in denial of title and his knowledge.
Visible, notorious and peaceful so that if the owner does
not take care to know notorious facts, knowledge is
attributed to him on the basis that but for due diligence
he would have known it. Adverse possession cannot be
decreed on a title which is not pleaded. Animus
possidendi under hostile colour of title is required.
Trespasser's long possession is not synonymous with
adverse possession. Trespasser's possession is construed
to be on behalf of the owner, the casual user does not
constitute adverse possession. The owner can take
possession from a trespasser at any point in time.
Possessor looks after the property, protects it and in
case of agricultural property by and large the concept is
that actual tiller should own the land who works by dint
of his hard labour and makes the land cultivable. The
legislature in various States confers rights based on
possession."
15. The matter has been examined by a Constitution Bench in M
Siddiq (D) through LRs v. Mahant Suresh Das & Ors. wherein, it
has been 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:
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"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 first by adequate pleadings and second by
leading sufficient evidence. Evidence, it is well settled,
can only be adduced with reference to matters which
are pleaded in a civil suit and in the absence of an
adequate pleading, evidence by itself cannot supply the
deficiency of a pleaded case. 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
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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 definition 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 difficulty 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 Arms 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 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
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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 pleadings
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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."
16. In the present case, the defendants have not admitted the
vesting of the suit property with the Managing Officer and the
factum of its transfer in favour of the plaintiff. The defendants
have denied the title not only of the Managing Officer but also of
the plaintiff. The plea of the defendants is one of continuous
possession but there is no plea that such possession was hostile to
the true owner of the suit property. The evidence of the defendants
is that of continuous possession. Some of the receipts pertain to
1963 but possession since November, 1963 till the filing of the
suit will not ripe into title as the defendants never admitted the
plaintiff-appellant to be owner or that the land ever vested with the
Managing Officer. In view of the judgments referred to above, we
find that the findings recorded by the High Court that the
defendants have perfected their title by adverse possession are not
legally sustainable. Consequently, the judgment and decree passed
by the High Court is set aside and the suit is decreed. The appeal is
allowed."
9 . Thus, it is clear that for maintaining the suit for adverse possession,
plaintiff must admit the title of original owner. The long and permissive
possession will never turn into an adverse possession.
10. Under these circumstances, this Court is of considered opinion that
when original owners are intending to join the suit, then they are the necessary
party. It is true that plaintiff is a dominus litis , but it is for the Trial Court to
decide as to whether the person who has approached the Court with an application
under Order 1 Rule 10 of CPC is a necessary party for just decision of the case or
not.
11. Under these circumstances, this Court is of considered opinion that no
illegality was committed by the Trial Court by allowing the application under
Order 1 Rule 10 of CPC filed by Prem Adiwasi and Kushuma @ Kushum
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Adiwasi.
12. Accordingly, this petition fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
Rashid
