Khubchand vs Municipal Board, Abu Road
2025 Latest Caselaw 17132 Raj

Rajasthan High Court - Jodhpur

Khubchand vs Municipal Board, Abu Road on 16 December, 2025

Author: Kuldeep Mathur

Bench: Kuldeep Mathur

[2025:RJ-JD:51964]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                     S.B. Civil First Appeal No. 447/2019

L.Rs. of Khoobchand
1/1. Pramod Kumar Sharma son of Late Shri Khoobchand aged
about 42 years.
1/2. Pradeep Kumar Sharma son of Late Shri Khoobchand aged
about 44 years.
1/3. Devi wife of Late Shri Khoobchand aged about 72 years.
All resident of 1D14, Housing Board, Akara Bhatta, Abu Road,
District Sirohi.
1/4. Radha Sharma daughter of Late Shri Khoobchand and wife
of Lokendra Datt Mishra, aged 57 years, resident of 1002,
Jamunadas Ka Bada, Ward No.35, Khetavat Ka Bada, Ajmer.
1/5. Chandra Kanta Mishra daughter of Late Shri Khoobchand
and wife of Satya Prakash Mishra, aged 43 years, resident of
Shivakunj, KK Nagar Sikandra Kheragah, Agra. (U.P.)


                                                                       ----Appellants
                                        Versus
Municipal      Board,        Abu        Road,        through         Chairman    And
Commissioner, Municipal Board, Abu Road, District Sirohi.
                                                                      ----Respondent


For Appellant(s)              :     Mr. Ram Kishore Soni
For Respondent(s)             :     Mr. Rajesh Parihar



            HON'BLE MR. JUSTICE KULDEEP MATHUR

                                        ORDER

Reserved on:- 19/11/2025 Pronounced on:- 16/12/2025

1. The instant first appeal under Section 96 of CPC has been

preferred on behalf of the appellant-plaintiff challenging the

judgment and decree dated 30.08.2019 passed by the learned

Additional District Judge No.2, Abu Road, District Sirohi in Civil

Original Suit No.04/2014 whereby the suit for declaration of title

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and permanent injunction filed on behalf of the appellant-plaintiff

was dismissed.

2. The facts leading to the present appeal are that the

appellant-plaintiff purchased a parcel of land situated at Plot No.

4, Ganesh Palai, Abu Road, from one Smt. Shakuntala Devi

through a registered sale deed dated 23.03.1992. After

purchasing the said plot, the appellant-plaintiff submitted an

application before the respondent-department seeking mutation of

the land in his name in the revenue records and a patta for plot

measuring 55x39 sq ft has been issued in his name. Thereafter,

the appellant applied for permission to raise construction over the

said plot. The respondent-department, upon verifying the

appellant's ownership on the basis of the registered sale deed

dated 23.03.1992, approved the building map for measurements

55x58.6 sq ft and handed it over to the appellant on 06.05.1995.

The appellant also obtained an electricity connection without any

objection from the respondent-department. However, owing to

financial constraints, the appellant could not commence

construction on the plot at the relevant point of time.

3. In the year 2008, when the appellant attempted to construct

a boundary wall, the respondent-department obstructed the

construction and stopped the appellant from raising any structure

on the said land. On the contrary, the respondent-department,

with the assistance of members of the Municipal Board,

constructed a platform on the plot and put an idol of a Hindu deity

upon it. In these circumstances, the appellant filed a suit before

the learned court below seeking declaration of his title over the

disputed plot and a decree of permanent injunction restraining the

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respondent-department from raising any construction on the land

and from interfering with the appellant's right to construct in

accordance with the approved map.

4. The respondent-department filed a written statement

denying the appellant's ownership and title over the plot in

question, alleging that the appellant had tampered with the

original documents and forged the conversion order by mentioning

an incorrect name. The appellant-plaintiff refuted these allegations

by filing a rejoinder.

5. The learned civil court, after hearing the parties, framed as

many as 9 issues including the issue for relief. The issues framed

by learned civil court are reproduced hereinbelow for ready

reference:-

"1& vk;k okn i= dh en la[;k 1 esa of.kZr prqFkZ lhekvksa okys Hkw[k.M dk oknh Lokeh gS rFkk mldk eki 55X58.6 oxZQqV gS\ &&oknh 2& vk;k oknh us izfroknh uxjikfydk ls mDr Hkw[k.M 55X58.6 oxZQqV ij fnukad 06-05-1992 dks fof/k vuqlkj fuekZ.k Lohd`fr izkIr dh\ &&oknh 3& vk;k izfroknh uxjikfydk voS/k :i ls oknh ds fof/kiw.kZ fuekZ.k dks jksduk pkgrk gS\ &&oknh 4& vk;k fookfnr Hkw[k.M dk okLrfod eki oxZQhV gSA ftls dkaVNkaV dj xSj dkuwuh rkSj ls oknh us 55X58.6 oxZQqV fd;k gSA &&izfroknh 5& vk;k oknh us fookfnr laifRr ds lca/k esa lkjr% leku rF;ksa ij izfroknh ds fo:) okn la[;k 27@04 U;k;ky; esa nk;j fd;k gSA blfy;s okn izkMxU;k; ds fl)kar ls ckf/kr gS\ &&izfroknh 6& vk;k flfoy U;k;k/kh"k ¼d-[k-½ vkcwjksM }kjk nhokuh ewyokn la[;k 27@04 [kwcpUn o vU; cuke cuokjhyky o vU; fnukad 05- 08-08 dks [kkfjt fd;k tk pqdk gSA ftldh vihy is"k ugha dh x;h gS blfy;s ;g okn iks'k.kh; ugha gS\ &&izfroknh

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7& vk;k oknh o mldh ifRu ds fo:) izFke lwpuk fjiksVZ 91@04 iqfyl Fkkuk vkcwjksM "kgj esa iV~Vk foys[k esa dkaVNkaV ckcr~ ntZ gksdj pkyku gqvk tks flfoy U;k;k/kh"k ¼o-[k-½ ,oa vij eq[; U;kf;d eftLVªsV ds U;k;ky; esa yafcr gS\ &&izfroknh 8& vk;k izfroknh fo"ks'k gtkZ oknh ls 25]000@& :i;s izkIr djus dk vf/kdkjh gS\ &&izfroknh 9& vuqrks'k"

6. The learned civil court vide judgment and decree dated

30.08.2019 rejected the suit while deciding issues No.1 to 4 being

fundamental in nature against the appellant and issues No.5 to 8

against the respondent - department while holding that the

appellant has failed to prove that the plot measuring 55x58.6 sq ft

of the Plot No.4 is owned by him; so much so he also failed to

prove that he had procured the construction permission as per law

and the respondent - department has illegally tried to halt the

legal construction raised by the appellant.

7. Being aggrieved by the judgment and decree dated

30.08.2019, the appellant has preferred the instant appeal.

8. Shri Ram Kishore Soni, learned counsel for the appellant

submitted that the learned court below has erred in recording a

finding that the appellant-plaintiff failed has to establish his

ownership over the plot measuring 55 × 58.6 sq. ft., despite that

the appellant-plaintiff having proved, by producing oral and

documentary evidence, his title/ownership by adverse possession

over the suit plot. The appellant-plaintiff has remained in peaceful

and uninterrupted possession since 1992, cultivating, developing,

and maintaining the property as an owner, without

acknowledgment of any superior title. Learned counsel further

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submitted that the appellant has been in open, continuous, and

uninterrupted possession of the entire plot measuring 55x58.6 sq

ft ever since his purchase through the registered sale deed dated

23.03.1992. The factum of appellant-plaintiff's possession over the

land in question was already known to the respondent-

department, as evidenced by the mutation in his name, issuance

of the patta, approval of the building map in the year 1995 for plot

measuring 55x58.6 sq ft, and grant of electricity connection.

Throughout this period, the appellant-plaintiff has exercised clear

dominion over the land as owner, without any protest, objection,

or assertion of adverse title by the respondents. Such possession

was "nec vi, nec clam, nec precario"--without force, without

secrecy, and without permission--thereby fulfilling the essential

requirement of hostility to the true owner's title.

9. Learned counsel fervently submitted that even assuming that

the additional space formed part of government or municipal land,

the appellant-plaintiff's continuous and hostile possession over the

plot in question for more than the statutory period of twelve years

--i.e., from 1992 proved his title by adverse possession under

Section 27 of the Limitation Act. By the time the respondents

unlawfully obstructed construction of boundary wall and

constructed a platform and installed an idol on the land in the year

2008, the appellant-plaintiff's rights had already matured, and any

subsequent interference could not divest the title that had already

vested in him by operation of law. The respondent-department's

long inaction, coupled with its approval of the building map for

plot measuring 55x58.6 sq ft and failure to initiate

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recovery/eviction proceedings within the limitation period clearly

resulted in extinguishment of his title/ownership.

10. Thus, the learned civil court's finding is perverse and

contrary to the settled principle of law, and therefore, it is prayed

that the title of disputed plot may be declared in favour of the

appellant-plaintiff as he has acquired lawful ownership of the

whole plot by adverse possession.

11. Contrary to the submissions of the learned counsel for the

appellant, Shri Rajesh Parihar, learned counsel for the State-

department submitted that at the outset, the appellant is

precluded from raising the plea of adverse possession for the first

time before this Court. The plea of adverse possession is a mixed

question of law and fact, requiring detailed pleadings, foundational

facts, evidence of the starting point of possession, the nature of

such possession, and proof of hostile animus (animus

possidendi). Since none of these ingredients were pleaded or

proved before the trial court, the appellant-plaintiff is barred from

raising such an argument for the first time in appeal. An appellate

court cannot entertain a new factual plea that was never part of

the original pleadings, as doing so would deprive the respondent

of the opportunity to rebut the same by leading counter-evidence,

or cross-examine witnesses on these essential aspects.

12. Furthermore, a plea of adverse possession is inconsistent

with the appellant's own case, which was based entirely on a claim

of title through a registered sale deed dated 23.03.1992 and

issuance of patta in his favor. It was urged that a party cannot

simultaneously assert derivative title and adverse possession, nor

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can he introduce new pleas at the appellate stage. Learned

counsel further submitted that the Hon'ble Supreme Court has

consistently been holding in plethora of judgments that a

completely new and contradictory plea, particularly one requiring

factual adjudication, cannot be permitted in an appeal under Order

XLI CPC. Since the learned civil court rendered its judgment on

the pleadings and evidence as they stood, and since no issue

regarding adverse possession was framed by the learned civil

court the appellant-plaintiff is estopped from raising it now.

Therefore, the present appeal may be dismissed without taking in

consideration the plea of adverse possession.

13. Heard. Perused the material available on record including the

impugned judgment and decree dated 30.08.2019.

14. Upon consideration of the material as made available on

record and rival submissions advanced by learned counsel for the

parties, this Court finds it evident that the appellant-plaintiff did

not raised the plea of adverse possession in the plaint before the

learned civil court, no issue was framed, and no evidence was led

regarding the date of entry, hostile possession, continuity,

knowledge of the respondent-department, or exclusivity of

possession over the suit plot measuring 55x58.6 sq ft. The alleged

acts of the respondent-department, including approved

construction map, mutation, and electricity connection,

demonstrate possession under lawful title and not under hostile

occupation. The purported construction of a platform and

installation of an idol in the year 2008 by the respondent-

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department does not transform permissive possession into

adverse possession retrospectively.

15. The Hon'ble Supreme Court of India has consistently held

that a plea of adverse possession is a fact-intensive claim that

must be specifically pleaded and proved at the stage trial. In

Kishundeo Rout & Ors. v. Govind Rao & Ors., 2025 INSC

956, the Court observed as below:

"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."

16. In Annasaheb Bapusaheb Patil v. Balwant @ Balasaheb

(1995) 2 SCC 543, the Hon'ble Supreme Court held that adverse

possession is a "blended question of fact and law," which

cannot be decided in the absence of clear pleadings and evidence.

It was also observed that the party must plead the starting point

of adverse possession, its nature, and its continuity; without these

particulars, the plea must fail. Applying the ratio as laid down in

Annasaheb Bapusaheb Patil, this Court finds that the appellant-

plaintiff has not indicated any date from which the alleged hostile

possession of the extra portion of the plot in question began. This

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omission alone is fatal, as the Hon'ble Apex Court has consistently

rejected claims where no foundation was laid in the plaint.

17. In view of the above, this Court is of considered opinion that

the appellate court cannot entertain a plea of adverse possession

first raised during appeal and cannot record its finding, where no

issues were framed and no evidence was led at the stage of trial.

18. So far as the requirement of hostility for adverse possession

is concerned, it is pertinent to note here that the appellant-

plaintiff's title/ownership to the 55x39 sq. ft. plot is clearly

established through the registered sale deed dated 23.03.1992,

mutation, issuance of patta, and approved building map in favor of

the appellant-plaintiff. It, therefore, demonstrate possession under

lawful title and do not reflect the hostility required for adverse

possession. The appellant-plaintiff has not provided any evidence

regarding exclusive or open occupation of portion of plot beyond

what he has purchased, or knowledge and acquiescence of the

respondent-department for the same. Moreover, the alleged

interference by the respondent-department in the year 2008,

including construction of a platform and installation of an idol,

occurred long after the sale of the plot and cannot, by itself,

constitute or negate adverse possession.

19. For the reasons elaborated hereinabove, this Court finds that

the appellant cannot be permitted to raise the plea of adverse

possession for the first time at the stage of appeal, and even

otherwise, the material as made available on record does not

satisfy the essential requirements of such a claim. The learned

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civil court's judgment does not suffers from any illegality or

infirmity warranting interference by this Court.

20. This appeal filed under Section 96 of CPC is accordingly

dismissed, and the impugned judgment and decree dated

30.08.2019 passed by the learned trial court are affirmed. No

order as to costs.

(KULDEEP MATHUR),J 37-Divya/-

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