Madhya Pradesh High Court
Bhanwarlal vs Dheeraj Singh on 7 April, 2026
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2026:MPHC
2026:MPHC-GWL:11618
F.A. No.82/2012
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 7th OF APRIL, 2026
FIRST APPEAL No. 82 of 2012
BHANWARLAL
Versus
DHEERAJ SINGH AND OTHERS
Appearance:
Shri N.K. Gupta - Senior Advocate with Shri Saket Sharma - Advocate for appellant.
Shri Prashant Sharma and Shri Upendra Yadav - Advocates for respondent No.1.
Shri Anmol Khedkar - Advocate for respondent No.2.
Shri C.P. Singh - Government Advocate for respondent No.3/State.
JUDGMENT
1. This first appeal under Section 96 of Civil Procedure Code has been filed
against the judgment and decree dated 22.02.2012 passed by First Additional
District Judge Guna in Civil Suit No. 7A/2010 and 4A/2011.
2. The question of maintainability of one First appeal against a common
judgment and decree passed in two Civil Suits shall also be considered at a later
stage.
Civil suit No. 7-A/2011
A/2011
3. The facts of Civil Suit No. 7A /2011 are as under :
Signature Not Verified
Signed by: AMAN TIWARI
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(a) The respondent no. 1 Dheeraj Singh filed suit for specific performance of
contract, stating inter alia that he is the resident of village
illage Singhadi. Earlier the
defendant no. 1 was also the resident of Singhadi and was an agriculturalist, but
now he is residing in SADA, Raghogarh. The State of Madhya Pradesh has also
been made a party, but no relief is being claimed against it. The defendant
def no. 1
was the owner and in possession of Survey No. 231, Area
rea 2.059 hectares situated
in Village Singhadi, Tehsil and District Guna. The defendant no.1 was in need of
money for meeting out the expenses of marriage of his son as well as for
purchasing
g a house. Therefore, he entered into an agreement to sell the Survey
No. 231 Area 2.059 hectares for a consideration amount of ₹ 4,12,000/-. This
agreement to sell was executed on 19.12.2007 and the defendant no. 1 received
an amount of ₹ 97,000
97,000/- in cash by way of advance. The defendant no. 1 got the
agreement to sale notarized and also got the thumb impression of his wife as a
consentor. It was agreed upon that the defendant no. 1 would execute the sale
deed by 10.02.2008 after receiving the remaining ou
outstanding
tstanding amount of ₹
3,15,000. Thereafter, the plaintiff requested the defendant no. 1 to execute the
sale deed, but every time, the defendant no. 1 avoided to execute the sale deed. In
paragraph 6 of the plaint it was specifically pleaded that on multiple
multipl occasions
the plaintiff had requested the defendant no. 1 to execute the sale deed because
the deadline was approaching very fast and it was requested that the defendant
no. 1 should receive the remaining consideration amount of ₹ 3,15,000/- and
should also
lso hand over the possession of the land to the plaintiff, but the defendant
no. 1 was all the time avoiding to execute the sale deed and was deliberately not
executing the sale, w
whereas
hereas the plaintiff was and is still ready and willing to
perform his part of contract. Plaintiff had also got a public notice published in a
Hindi newspaper on 11.01.2008, pointing out that on 19.12.2007, the defendantSignature Not Verified
Signed by: AMAN TIWARI
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3no. 1 has already executed an agreement to sell in favour of plaintiff and
therefore no one should purchase the said property. A registered notice was also
given to the defendant no. 1 on 14.01.20
14.01.2008,
8, but the defendant no. 1 managed to
return the said registered notice. Accordingly another notice dated 28.01.2008
was sent, but the same was also returned back with an endorsement that the
defendant no. 1 is not residing at the given address. It was claimed that the
defendant no. 1 wants to alienate the property to Bhan
Bhanwarlal/appellant
arlal/appellant and Gopal
Singh. Accordingly a registered notice was also given by plaintiff to them on
04.02.2008 and they were requested not to purchase the land as an agreement to
sell has already been executed in favour of the plaintiff. Thus it was claimed that
the defendant no. 1 is deliberately avoiding the execution of sale deed and wants
to grab the money of the plaintiff, whereas the plaintiff is ready and willing to
perform his part of contract. Accordingly the suit was filed for specific
performance of contract.
(b) The defendant no. 1/Sirnam
1/S rnam Singh and defendant no. 3 Bhanwarlal/Appellant
Bhan
filed a joint written statement. It was pleaded that for the last 20 years, the land is
being cultivated by Dheeraj Singh and therefore there was no question of selling
the land to the plaintiff. The defendant no. 1/S
1/Sirnam
rnam Singh never entered into an
agreement to sell and never received an amount of ₹ 97,000/- by way of advance.
It was claimed that on 20.05.1988 when defendant no. 1/Sirnam
1/S rnam Singh shifted to
village
illage Jaganpur, then S
Sirnam
rnam Singh after receiving a consideration amount of ₹
1,00,000 from the defendant no. 3, Bhanwarlal/Appellant,
arlal/Appellant, verbally sold the land
to Bhanwarlal
arlal and possession of the same was also given. Accordingly, it was
claimed that defendant no. 1/Sirnam
1/S rnam Singh would execute the sale deed in favour
of appellant/defendant no. 3/Bhan
3/Bhanwarlal. In thee month of May, 1990, the
defendant no. 1 Sirnam Singh came to Singhadi and requested the defendant no.
Signature Not Verified
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3/appellant/Bhanwarlal
arlal to remove his possession from the property in dispute,
but the defendant no. 3 Bhanwarlal/appellant
arlal/appellant refused to remove his possession.
possess
Accordingly, the defendant no. 1, S
Sirnam
rnam Singh also tried to forcibly take
possession of the property in dispute. As a result, quarrel also took place between
them. However, defendant no. 1/S
1/Sirnam
rnam Singh was made to run away by
defendant no. 3, Bhan
Bhanwarlal/Appellant
lal/Appellant and since then the defendant no. 3
Bhanwarlal/appellant
arlal/appellant is in possession of the property in dispute in the capacity of
the owner and Bhanw
warlal is cultivating the land. Bhanwarlal
arlal had also made an
application to the Tehsildar for recording hi
hiss possession over the property in
dispute and the said application was also allowed. It was further claimed that the
plaintiff Dheeraj Singh in the name of preparing the Kisan card had taken the
photographs of the defendant no. 1./S
1./Sirnam
rnam Singh and his wife and also obtained
their signatures on some blank papers and on the basis of those blank signed
papers, the plaintiff has prepared a concocted and forged agreement to sell.
(c) Thus the
he appellant/Bhan
appellant/Bhanwarlal and defendant no.1/Sirnam
rnam Singh by filing a
jointt written statement claimed that defendant no. 1/Sirnam
1/S rnam Singh had verbally
sold the property in dispute to Bhan
Bhanwarlal
arlal for a consideration amount of ₹
1,00,000/- and the agreement to sell was never executed by defendant no.
1/Sirnam
rnam Singh and in fact the plaintiff had obtained the signatures of defendant
no. 1 Sirnam
rnam Singh and his wife on the blank papers on the pretext of preparing
Kissan Card.
(d) This Civil Suit was filed on 14
14-2-2008.
Civil Suit No. 4-A/2011
A/2011
4. The facts of Civil Suit No
No. 4-A/2011 are as under :
Signature Not Verified
Signed by: AMAN TIWARI
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(a) Bhanwarlal,
arlal, who is the defendant no. 3 in Civil Suit No. 7A/2011, filed suit
for declaration of title and permit injunction on the ground that on 20.05.1988,
Sirnam Singh had verbally sold the Survey No. 231, Area 2.059 hectares situated
sit
in village
illage Singhadi, Tehsil and District Guna after receiving a consideration
amount of ₹ 1,00,000
1,00,000/-.. It was specifically pleaded that no sale deed has been
executed by Sirnam
rnam Singh in favour of Bhanwarlal.
Bhan arlal. However, it was claimed that
possession of the Property was also given to the appellant. It was also assured
that Sirnam
rnam Singh would execute the sale deed as per his convenience. In the
month of May, 1990,, the defendant no. 1 Sirnam
S rnam Singh again tried to take back
the possession of the property in ddispute,
ispute, but the plaintiff/Bhan
plaintiff/Bhanwarlal did not
remove his possession. An attempt was also made by S
Sirnam
rnam Singh to forcibly
take possession of the property in dispute
dispute, but Sirnam
rnam Singh was made to run
away by Bhanwarlal.
arlal. S
Sirnam
rnam Singh went away by extending a threat that he
would obtain a possession through Court.
ourt. However, no action was taken by
Sirnam Singh for restoration of possession. For the last 10 years, Bhan
Bhanwarlal is
cultivating the land. Thus it was claimed that since Sirnam Singh has verbally
sold the property in dispute to Bhanwarlal
Bhan on 20-5-1988,
1988, therefore,
therefore he is the
owner. In the alternative, it was also prayed that otherwise also he has perfected
his title by way of adverse possession. It was further claimed that on 28.02.2008,
Bhanwarlal
arlal came to kknow that Sirnam
rnam Singh is intending to alienate the property
to other persons. It was claimed that Bhan
Bhanwarlal
arlal has already perfected his title by
way of adverse possession,
possession accordingly suit was filed for declaration that
Bhanwarlal
arlal has perfected his title by way of adverse possession. It appears that
Dheeraj Singh who has filed Civil Suit No. 7-A/2010
7 A/2010 moved an application for
impleading himself as defendant on the ground that an agreement to sell has been
executed by Sirnam Singh and said application was allo
allowed
wed by trial Court by
Signature Not Verified
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Order dated 3.11.2008. It was claimed that neither Dheeraj Singh is the owner of
the property in dispute nor he is in possession. It was claimed by Bhan
Bhanwarlal that
he has not sought any relief against Dheeraj Singh, but merely in the light of
order passed by the trial Court, Dheeraj Singh is being impleaded as defendant
no. 3. The suit by Bhavarlal
Bhava was filed on 03.03.2008.
(b) Dheeraj Singh filed his written statement and took the same defence that he
has entered into an agreement tto
o purchase the disputed property from Sirnam
Singh after making payment of Rs. 97,000/
97,000/- by way of advance and all other
plaint averments were denied. Thus, the defence of Dheeraj Singh was the same
which he had taken in his plaint in Civil Suit No. 77-A/2010.
(c) Initially Sirnam
rnam Singh entered his appearance through his Counsel but
lateron, he was proceeded exparte. Although Sirnam
S rnam Singh appeared as a witness
for Bhanwarlal
arlal but he never prayed for setting aside exparte proceedings against
him.
(d) Dheeraj Singh
ingh filed an application under Section 10 of CPC for stay of suit
but the said application was dismissed.
(e) Bhanwarlal
arlal examined himself as P.W.1, Nathan Singh (P.W.2), Jumman
Khan (P.W.3), Heeralal (P.W.4), Sirnam Singh/Defendant no.1 (P.W.5).
(f) By order dated 27
27-1-2011,
2011, this suit was consolidated with Civil Suit No. 77-
A/2010.
5. The Trial Court after framing issues and recording evidence, decreed the Civil
Suit No. 7-A/2010
A/2010 filed by Dheeraj Singh and dismissed the Civil Suit No. 44-
A/2011 filed by appellant
ppellant Bhanwarlal.
Bhan
Signature Not Verified
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6. Being aggrieved by Judgment and decree passed by the Trial Court in C.S. No.
7-A/2010 and 4-A/2011,
A/2011, the appellant has filed this composite appeal.
7. I.A. No. 16317 of 2017 was filed by respondent no.1 Dheeraj Singh for
dismissal of appeal on the ground that a single appeal filed against judgment and
decrees passed in two civil suits is not maintainable.
8. I.A. No. 2812 of 2026 has been filed by the appellant Bhan
Bhanwarlal that by
mistake Single appeal has been filed against the common judgment passed in two
different suits, and by mistake, the Court Fee in respect of Civil Suit No. 77-
A/2010 could not be paid, therefore, the appellant is ready and willing to pay an
additional
itional set of Court fee.
9. Considered the question of maintainability of single appeal against a common
judgment and decree passed in two suits which were consolidated.
10. The appellant did not file any application seeking permission to file one
appeal against common judgment and decree passed in two civil suits. Objection
with regard to the maintainability of single appeal was already taken in the year
2017, but no steps were taken by the appella
appellant
nt to file a separate appeal.
11. The Supreme Court in the case of M/s Ramnath Exports Pvt. Ltd. Vs.
Vinita Mehta and another decided on 5-7-2022 in C.A. No. 4639/22 has held
as under :
10. The contention of the appellant with vehe vehemence
mence is that the
application CLMA seeking permission to file joint appeal against
common judgment and two decrees has not been decided by the
impugned order, though at the time of admitting the appeal and issuing
notice, objections were called. In the cou
counter-affidavit
affidavit filed by theSignature Not Verified
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8respondent even before this Court, the said fact has not been contested
or refuted. In the order, it has also not been mentioned that dismissal of
the appeal would lead to decide all pending applications including
CLMA. As per record,
record, it is clear that the High Court admitted the
appeal on 18.07.2008 and CLMA was awaiting its fate for almost about
a decade. By the impugned order passed on 04.07.2018, first appeal
was dismissed accepting the preliminary objection regarding
maintainability
nability applying the principle of res-judicata.
res judicata. There is not even
any without observation that permission as sought to file one appeal
cannot be granted. The record indicates that the CLMA filed by the
appellant seeking permission to file one appeal was nnot ot decided. It is to
observe, once at the time of admission of first appeal, despite having
objection of maintainability it was admitted asking reply and rejoinder
on CLMA, the High Court ought to have decided the said application.
Thus, prior to deciding the preliminary objection, the High Court
should have decided the said CLMA, either granting leave to file a
single appeal or refusing to entertain one appeal against one judgment
and two decrees passed in two suits after consolidation. In case, the
High Court would have rejected the said CLMA, the appellant could
have availed the opportunity to file separate appeal against the
judgment and decree passed in Civil Suit No.411 of 1989. Without
deciding the CLMA and accepting the preliminary objections,
dismissing
ssing the appeal as barred by res-judicata,
res judicata, primarily appears
contrary to the spirit of its own order dated 18.07.2008. In our
considered view also, the approach adopted by High Court is not
correct, because on dismissal of the CLMA, the appellant might ha have
had the opportunity to rectify the defect by way of filing separate
appeal under Section 96 of CPC challenging the same judgment with
separate decree passed in Civil Suit No.411 of 1989. Converse to it, if
this Court proceeds to consider the merit of th thee contentions raised in
the said CLMA and record the findings in negative, it would effectively
render the appellant remediless, therefore, we refrain ourselves from
examining the merits of CLMA. It is a trite law that the procedural
defect may fall within the purview of irregularity and capable of being
cured, but it should not be allowed to defeat the substantive right
accrued to the litigant without affording reasonable opportunity.
Therefore, in our considered view, non non-adjudication
adjudication of the CLMA
application,
ion, and upholding the preliminary objection of non- non
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maintainability of one appeal by High Court has caused serious
prejudice to the appellant.
12. This Court is of considered opinion, that the appellant cannot get an
advantage of the aforesaid judgment, be
because
cause in that case, an application was
already pending seeking permission to file single appeal and that application was
not decided for decades together. However, at the cost of repetition, it is once
again clarified that inspite of objection raised by respondent
respondent no.1 in the year
2017 by filing I.A. No. 16317 of 2017, no steps were taken by the appellant to
rectify his decision of not filing separate appeal. Furthermore, he has also
admitted that one single appeal against a common Judgment and Decree passed
pas
in two different suits is not maintainable, therefore, no useful purpose would be
served by extending time to pay Court Fee in respect of Civil Suit No. 77-A/2010.
Therefore, this appeal filed against the Judgment and Decree passed by the Trial
Court in Civil Suit No. 7-A/2010
7 is hereby Dismissed.
13. Thus, it is made clear that now this Court would consider the case of
appellant Bhanwarlal
arlal in respect of his Civil Suit No. 44-A/2011.
A/2011.
14. It is the case of the appellant that on 20-5-1988, Sirnam Singh/Defenant
Singh/ no.1
orally sold the land in dispute to him and also handed over possession of the
same. In the month of May 1990, Sirnam Singh tried to dispossess him but could
not succeed, therefore, it was claimed that from the year 1990, the appellant
Bhanwarlal
lal is in possession of property in dispute being the owner of the same.
15. The following are the two points of deter
determination :
(a) Whether land can be sold orally after accepting consideration amount of Rs.
1,00,000/-?
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(b) Whether the appellant Bhan
Bhanwarlal
arlal has perfected his title by way of adverse
possession qua Sirnam
rnam Singh?
Singh
(a) Whether land can be sold orally after accepting consideration amount of
Rs. 1,00,000/-?
16. Section 54 of Transfer of Property Act reads as under :
“54.
54. “Sale” defined.
defined.–“Sale”
le” is a transfer of ownership in exchange for a price
paid or promised or part
part-paid and part-promised.
Sale how made.– –Such
Such transfer, in the case of tangible immoveable property of the
value of one hundred rupees and upwards, or in the case of a reversion or other
intangible thing, can be made only by a registered instrument.
In the case of tangible immoveable property of a value less than one hundred
rupees, such transfer may be made either by a registered instrument or by delivery
of the property.
Delivery
ry of tangible immoveable property takes place when the seller places the
buyer, or such person as he directs, in possession of the property.
Contract for sale.
sale.–A A contract for the sale of immoveable property is a contract
that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property.”
property.
17. Thus, it is clear that where the value of the property is more than Rs. 100/-,
100/
then it cannot be sold except by registered ssale
ale deed. Therefore, it is held that no
title or right would stand transferred to Bhan
Bhanwarlal
arlal by virtue of oral transaction
of sale.
(b) Whether the appellant Bhan
Bhanwarlal
arlal has perfected his title by way of adverse
possession ?
18. It is the case of the appellant Bhanwarlal that on 20-5-1988,
1988, Sirnam Singh
sold the land orally to him for a consideration of Rs. 1,00,000/-
1,00,000/ and possession
was also given. Thus, it is clear that appellant Bhan
Bhanwarlal
arlal was placed in
permissive possession.
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19. Before proceeding ffurther,
urther, this Court would like to consider the law relating
to Adverse Possession.
20. The Supreme Court in the case of Dagadabai (Dead) by Legal
Representatives Vs. Abbas alias Gulab Rustum Pinjari reported in (2017) 13
SCC 705 has held as under:
16. Fourth,
h, the High Court erred fundamentally in observing in para 7
that, “it
it was not necessary for him (defendant) to first admit the
ownership of the plaintiff before raising such a plea”.
plea”. In our considered
opinion, these observations of the High Court are against the law of
adverse possession. It is a settled principle of law of adverse possession
that the person, who claims title over the property on the strength of
adverse possession and thereby wants the Court to divest the true owner
of his ownership ri
rights
ghts over such property, is required to prove his case
only against the true owner of the property. It is equally well settled
that such person must necessarily first admit the ownership of the true
owner over the property to the knowledge of the true owner owne and
secondly, the true owner has to be made a party to the suit to enable the
Court to decide the plea of adverse possession between the two rival
claimants.
17. It is only thereafter and subject to proving other material conditions
with the aid of adequate
adequate evidence on the issue of actual, peaceful, and
uninterrupted continuous possession of the person over the suit
property for more than 12 years to the exclusion of true owner with the
element of hostility in asserting the rights of ownership to the
knowledge
ledge of the true owner, a case of adverse possession can be held
to be made out which, in turn, results in depriving the true owner of his
ownership rights in the property and vests ownership rights of the
property in the person who claims it.
18. In this case, we find that the defendant did not admit the plaintiff’s
ownership over the suit land and, therefore, the issue of adverse
possession, in our opinion, could not have been tried successfully at the
instance of the defendant as against the plaintiff. That apart, the
defendant having claimed the ownership over the suit land by
inheritance as an adopted son of Rustum and having failed to prove this
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ground, he was not entitled to claim the title by adverse possession
against the plaintiff.
21. The Supremee Court in the case of M. Radheshyamlal Vs. V Sandhya and Anr.
Etc. decided on 18.03.2024 in Civil Appeal No.4322 – 4324 of 2024 has held as
under:
“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 therefo
therefore,
re, 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.”
22. The Supreme Court in the case of Uttam Chand (Dead) through Legal
Representatives Vs. Nathu Ram (Dead) through Legal Representatives and
others reported in (2020) 11 SCC 263 has held as under:
11. In T. Anjanappa [T. Anjanappa v. Somalingappa,, (2006) 7 SCC
570] , this Court has set aside the finding of the High Court that the
defendants claiming adverse possession do not have to prove who is the
true owner. If the defendants are not sure who the true owner is, the
question of them being in hostile poss ession as well as of denying the
possessionSignature Not Verified
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13title of the true owner does not arise. The Court held as under: (SCC pp.
574-75,
75, paras 1212-14)
“12.. The concept of adverse possession contemplates a hostile
possession i.e. a possession which is expressly or impliedly in
denial
nial of the title of the true owner. Possession to be adverse
must be possession by a person who does not acknowledge the
other’s rights but denies them. The principle of law is firmly
established that a person who bases his title on adverse
possession musmustt show by clear and unequivocal evidence that
his possession was hostile to the real owner and amounted to
denial of his title to the property claimed. For deciding whether
the alleged acts of a person constituted adverse possession, the
animus of the person
person doing those acts is the most crucial factor.
Adverse possession is commenced in wrong and is aimed
against right. A person is said to hold the property adversely to
the real owner when that person in denial of the owner’s right
excluded him from the enjoyment
enj of his property.
13.. Possession to be adverse must be possession by a person
who does not acknowledge the other’s rights but denies them:
’24
24.. It is a matter of fundamental principle of law that
where possession can be referred to a lawful title, it will
not be considered to be adverse. It is on the basis of this
principle that it has been laid down that since the
possession of one co-owner
co owner can be referred to his status
as co
co-owner,
owner, it cannot be considered adverse to other co
co-
owners.’ (See Vidya Devi v. Prem Prakash [Vidya
Devi v. Prem Prakash,, (1995) 4 SCC 496] , SCC p. 504,
para 24.)
14. Adverse possession is that form of possession or occupancy
of land which is inconsistent with the title of the rightful owner
and tends to extinguish that person’s title. Possession is not held
to be adverse if it can be referred to a lawful title. The person
setting up adverse possession may have been holding under the
rightful owner’s title e.g. trustees, guardians, bailiffs or agents.
Such persons cannot set up adverse
ad possession:
'14
14.. … Adverse possession means a [hostile possession]
which is expressly or impliedly in denial of title of the
true owner. Under Article 65 [of the Limitation Act]
burden is on the defendants to prove affirmatively. A
person who bases his his title on adverse possession must
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show by clear and unequivocal evidence i.e. possession
was hostile to the real owner and amounted to a denial of
his title to the property claimed. In deciding whether the
acts, alleged by a person, constitute adverse po
possession,
regard must be had to the animus of the person doing
those acts which must be ascertained from the facts and
circumstances of each case. The person who bases his
title on adverse possession, therefore, must show by clear
and unequivocal evidence i.e. possession was hostile to
the real owner and amounted to a denial of his title to the
property claimed.
15. Where possession can be referred to a lawful title, it
will not be considered to be adverse. The reason being
that a person whose possession can can be referred to a
lawful title will not be permitted to show that his
possession was hostile to another’s title. One who holds
possession on behalf of another, does not by mere denial
of that other’s title make his possession adverse so as to
give himself the benefit of the statute of limitation.
Therefore, a person who enters into possession having a
lawful title, cannot divest another of that title by
pretending that he had no title at all. (See Annasaheb
Bapusaheb Patil v. Balwant [Annasaheb
Annasaheb Bapusaheb
P
Patil v. Balwant,, (1995) 2 SCC 543] , SCC p. 554, paras
14
14-15.)'”
12. In Kurella Naga Druva Vudaya Bhaskara Rao [Kurella Kurella Naga
Druva Vudaya Bhaskara Rao v. Galla Jani Kamma,, (2008) 15 SCC
150] , the payment of tax receipts and mere possession for some years
was found insufficient to claim adverse possession. It was held that if
according to the defendant, the plaintiff was not the true owner, his
possession hostile to the plaintiff’s title will not be sufficient. The Court
held as under: (SCC p. 158, para 19)19
“19.. The defendant claimed that he had perfected his title by
adverse possession by being in open, continuous and hostile
possession of the suit property from 1957. He also produced
some tax receipts showing that he has paid the taxes in regard to
the suit
it land. Some tax receipts also showed that he paid the tax
on behalf of someone else. After considering the oral and
documentary evidence, both the courts have entered a concurrentSignature Not Verified
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15finding that the defendant did not establish adverse possession,
and that mere possession for some years was not sufficient to
claim adverse possession, unless such possession was hostile
possession, denying the title of the true owner. The courts have
pointed out that if according to the defendant, the plaintiff was
not the true
true owner, his possession hostile to the plaintiff’s title
will not be sufficient and he had to show that his possession was
also hostile to the title and possession of the true owner. After
detailed analysis of the oral and documentary evidence, the trial
court
ourt and the High Court also held [Kurella
[Kurella Naga Druva Vudaya
Bhaskara Rao v. Galla Janikamma,, 2006 SCC OnLine AP 842 :
(2009) 3 ALD 416] that the appellant was only managing the
properties on behalf of the plaintiff and his occupation was not
hostile posse
possession.”
13. In Brijesh Kumar v. Shardabai [Brijesh Brijesh Kumar v. Shardabai,
(2019) 9 SCC 369 : (2019) 4 SCC (Civ) 509] , the Court held as under:
(SCC p. 374, para 13)
“13. Adverse possession is hostile possession by assertion of a
hostile title in denial of the title of the true owner as held in M.
Venkatesh [M. Venkatesh v. BDA, (2015) 17 SCC 1 : (2017) 5
SCC (Civ) 387] . The respondent had failed to establish
peaceful, open and continuous possession demonstrating a
wrongful ouster of the rightful owner. It thus involved question
of facts and law. The onus lay on the respondent to establish
when and how he came into possession, the nature of his
possession, the factum of possession known and hostile to the
other parties, continuous possession over 12 years wh which was
open and undisturbed. The respondent was seeking to deny the
rights of the true owner. The onus therefore lay upon the
respondent to establish possession as a fact coupled with that it
was open, hostile and continuous to the knowledge of the true
owner.
wner. The respondent-plaintiff
respondent plaintiff failed to discharge the onus.
Reference may also be made to Chatti Konati Rao v. Palle
Venkata Subba Rao [Chatti Konati Rao v. Palle Venkata Subba
Rao, (2010) 14 SCC 316 : (2012) 1 SCC (Civ) 452] , on adverse
possession obser
observing
ving as follows: (SCC p. 322, para 15)
’15
15. Animus possidendi as is well known is a requisite
ingredient of adverse possession. Mere possession does
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not ripen into possessory title until the possessor holds
the property adverse to the title of the true owner for the
said purpose. The person who claims adverse possession
is required to establish the date on which he came in
possession, nature of possession, the factum of
possession, knowledge to the true owner, duration of
possession and that possession was was open and
undisturbed. A person pleading adverse possession has
no equities in his favour as he is trying to defeat the
rights of the true owner and, hence, it is for him to clearly
plead and establish all facts necessary to establish
adverse possession. The courts always take unkind view
towards statutes of limitation overriding property rights.
The plea of adverse possession is not a pure question of
law but a blended one of fact and law.’ ”
14. As to whether the plaintiff can claim title on the basis of adverse
possession, this Court in a judgment Ravinder Kaur Grewal v. Manjit
Kaur [Ravinder
Ravinder Kaur Grewal v. Manjit Kaur,, (2019) 8 SCC 729 :
(2019) 4 SCC (Civ) 453] has held as under: (SCC p. 777, para 60)
“60.. The adverse possession requires all the three classic
requirements to co-exist
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 ccolour 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 fro 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.”
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15. The matter has been examined by a Constitution Bench in M.
Siddiq (Ram Janmabhumi Temple
Temple-5 J.) v. Suresh Das [M. M. Siddiq (Ram
Janmabhumi Temple
Temple-5 J.) v. Suresh Das,, (2020) 1 SCC 1] 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: (SCC pp. 703 703-706, paras 1142–1143 & 1147-
1150)
“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 4
ought to be cognizant of the fact that any claim of adverse
possession against the Hindus or the temple w would
ould 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 whichwhich 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
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 Para 11( 11(a
a), it becomes
evident that beyond stating that the Muslims have been in long,
exclusive and continuous possession beginning
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
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the rights of the true owner and the law is nnot
ot readily accepting
of such a case unless a clear and cogent basis has been made out
in the pleadings and established in the evidence.
***
1147. In Supt. & Remembrancer of Legal Affairs v. Anil Kumar
Bhunja [Supt. & Remembrancer of Legal Affairs v. Anil Kumar
Bhunja, (1979) 4 SCC 274 : 1979 SCC (Cri) 1038] , R.S.
Sarkaria, J. speaking for a three
three-Judge
Judge Bench of this Court noted
that the concept of possession is “polymorphous” embodying
both a rig
right
ht (the right to enjoy) and a fact (the real intention).
The learned Judge held: (SCC p. 278, para 13)
’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
cause 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.
1148. In P. Lakshmi Reddy v. L. Lakshmi Reddy [P. Lakshmi
Reddy v. L. Lakshmi Reddy, 1957 SCR 195 : AIR 1957 SC
314] , Jagannadhadas, J. spea Judge Bench of
speaking for a three-Judge
this Court dwelt on the “classical requirement” of adverse
possession: (AIR pp. 317-18,
317 para 4)
‘4.. Now, the ordinary classical requirement of
adverse possession is that it should be nec vi nec
clam nec precario. (See Secy. of State for India in
Council v. Debendra Lal Khan [Secy.
Secy. of State for
India in Council v. Debendra Lal Khan,
Khan 1933 SCC
OnLine PC 65 : (1933-34)34) 61 IA 78] IA at p. 82.)Signature Not Verified
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19The 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: (AIR p. 319, para
7)
‘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.
ssession. (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 Edn., Vol. I, Lecture VI, at p. 159]
This Court held: (AIR p. 319, para 7)
‘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 obtai
actual possession with the requisite animus.’
1149. In Karnataka Board of Wakf v. Union of
India [Karnataka
Karnataka Board of Wakf v. Union of India, (2004) 10
SCC 779] , S. Rajendra Babu, J. speaking for a two two-Judge
Bench held that: (SCC p. 785, para 11)
’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
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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
ong his possession has continued, and (e) his
possession was open and undisturbed
undisturbed.’
The ingredients must be set up in the pleadings and proved in
evidence. There can be no proof sans pleadings and pleadings
without evidence will not establish a case in la
law.
1150. In Annakili v. A. Vedanayagam [Annakili v. A.
Vedanayagam, (2007) 14 SCC 308] , this Court emphasised
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.”
(emphasis in original)
23. Thus, it is clear that while setting up a ground of adverse possession, the
title of the opposite party has to be accepted. Permissive Possession will never
turn into an Adverse Possession.
24. If the facts of the case are considered, then it is clear that it is the case of
the appellant Bhanwarlal
arlal that on 20
20-5-1988,
1988, Sirnam Singh had orally sold the
land in dispute to him for a consideration of Rs. 1 lac and also handed over the
possession. Thus from 1988, Bhanwarlal
Bhan arlal was in permissive possession. Although
it is the contention of the appellant that in the month of May 1990, Sirnam Singh
made an attempt to dispossess him, but could not succeed, but that would not
mean that the possession of the appellant thereafter, became hostile to the title of
Sirnam Singh. It is not the case of app
appellant Bhanwarlal
arlal that Sirnam Singh ever
refunded Rs 1 lac and withdrew his permission from Bhanwarlal
Bhan to retain
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permission. The appellant Bhanwarlal
Bhan arlal never admitted that from 1990 onwards,
he ever treated Sirnam Singh as owner. On the contrary, it was spe
specifically
pleaded by Bhanwarlal
arlal in his plaint that from 1990 he is in possession being the
owner. The principal of Adverse Possession would come into force only after 12
years from the date when the possession become hostile. Since, Bhan
Bhanwarlal
always treated
ted himself to the owner by virtue of oral sale transaction, therefore, it
is clear that his possession was permissive. Further more, the appellant
Bhanwarlal
arlal has stated in his plaint that he is in possession for the last 10 years
therefore, he had perfect
perfected
ed his title by way of adverse possession. Article 65 of
Limitation Act would not come into picture in 10 years.
25. Thus, it is clear that the appellant Bhan
Bhanwarlal
arlal has failed to prove that he had
ever perfected his title by adverse possession.
26. No other
ther argument was advanced by the Counsel for the appellant.
27. Cross Objection has been filed by the respondent no. 1 Dheeraj Singh
claiming the litigation expenses of Rs. 69,349
69,349/-,, in contesting his suit for specific
performance of contract. No Court fee
ee has been paid on cross
cross-objection.
Accordingly, the cross objection is dismissed.
28. Ex consequenti,, the Judgment and Decree dated 22.02.2012 passed by First
Additional
dditional District Judge Guna in Civil Suit No. 4A/2011 is hereby Affirmed.
29. Appeal fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
Aman
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