Bhanwarlal vs Dheeraj Singh on 7 April, 2026

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    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.

    SPONSORED

    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
    Signing time: 09-04-2026
    05:35:49 PM

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    F.A. No.82/2012
    2

    (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 defendant

    Signature Not Verified
    Signed by: AMAN TIWARI
    Signing time: 09-04-2026
    05:35:49 PM
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    F.A. No.82/2012
    3

    no. 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
    Signed by: AMAN TIWARI
    Signing time: 09-04-2026
    05:35:49 PM

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    F.A. No.82/2012
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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
    Signing time: 09-04-2026
    05:35:49 PM

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    5

    (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
    Signed by: AMAN TIWARI
    Signing time: 09-04-2026
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    F.A. No.82/2012
    6

    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
    Signed by: AMAN TIWARI
    Signing time: 09-04-2026
    05:35:49 PM
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    F.A. No.82/2012
    7

    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 the

    Signature Not Verified
    Signed by: AMAN TIWARI
    Signing time: 09-04-2026
    05:35:49 PM
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    F.A. No.82/2012
    8

    respondent 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

    Signature Not Verified
    Signed by: AMAN TIWARI
    Signing time: 09-04-2026
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    F.A. No.82/2012
    9

    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/-?

    Signature Not Verified
    Signed by: AMAN TIWARI
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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.

    Signature Not Verified
    Signed by: AMAN TIWARI
    Signing time: 09-04-2026
    05:35:49 PM

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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

    Signature Not Verified
    Signed by: AMAN TIWARI
    Signing time: 09-04-2026
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    F.A. No.82/2012
    12

    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
    possession

    Signature Not Verified
    Signed by: AMAN TIWARI
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    F.A. No.82/2012
    13

    title 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 concurrent

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    finding 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.)

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    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: (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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