Madhya Pradesh High Court
Pooran vs State Of M.P. on 23 July, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:16333
1 SA No. 652 of 2007
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 23rd OF JULY, 2025
SECOND APPEAL No. 652 of 2007
POORAN
Versus
STATE OF M.P. AND OTHERS
Appearance:
Shri Jai Prakash Mishra - Advocate for appellant.
Shri G.K. Agarwal - Government Advocate for respondent No.1/State.
Shri Soumya Pawaiya - Advocate for respondent No.2.
JUDGMENT
Heard on the question of admission.
This Second Appeal, under Section 100 of CPC, has been filed against the
judgment and decree dated 02.08.2007 passed by II Additional District Judge
(Fast Track Court), Basoda, District Vidisha (M.P.) in Regular Civil Appeal
No.104-A/2006 as well as judgment and decree dated 31.07.2006 passed by II
Civil Judge Class II, Ganjbasoda, District Vidisha (M.P.) in Regular Civil Suit
No.205A/1994.
2. Present appeal has been filed by the plaintiff who has lost his case from
both the courts below.
3. The facts, necessary for disposal of present appeal, in short, are that the
plaintiff/appellant filed a suit for declaration and permanent injunction by
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pleading inter alia that appellant was in possession of 1.066 hectares out of total
area 2.320 hectares of Survey No.53 as well as 1.090 hectares of total area 7.630
hectares of Survey No.215, total area 2.180 hectares on the basis of verbal lease
granted by earlier Zamindar. He had paid the rent to Zamindar also. Even after
abolition of Zamindari rights, the plaintiff was in possession of the property in
dispute and therefore now he has acquired the Bhumiswami rights. By mistake of
revenue authorities, the land stood vested in the State whereas no information in
this regard was given to the plaintiff. However, it was claimed that the plaintiff
was in possession of the property in dispute. It was further claimed that in case if
it is found that plaintiff has not acquired the rights of Bhumiswami still by virtue
of his open and hostile possession, he has perfected his title by way of adverse
possession. It was further submitted that the State authorities by denying the title
of the plaintiff are out and out to allot the land on patta to different persons.
4. Defendant No.1 filed its written statement and denied the plaint averments.
It was stated that the plaintiff was never in possession of the property in dispute.
The State Government was the owner and the aforesaid land has been declared as
Kabilkasht land and accordingly has allotted Patta to landless people of
scheduled caste, namely, Jalam S/o Halku, Hari Singh S/o Satte, Bharosa S/o
Naunita, Shriram S/o Guman and Maan Singh S/o Gendalal and accordingly, the
leaseholders are in possession of the property in dispute. It was further pleaded
that plaintiff has not clarified that which Zamindar had granted verbal Patta to
him and when that verbal Patta was granted.
5. Defendant No.3, namely, Maan Singh filed a separate written statement
and denied the plaint averments and it was denied that the plaintiff is in
possession of the property in dispute for the last 30 years. It was further claimed
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that Patta has been granted to defendant No.3 in respect of Khasra No.215 area 2
hectares and thus he has acquired Bhumiswami rights.
6. The Trial Court, after framing issues and recording evidence, dismissed
the suit.
7. Being aggrieved by the judgment and decree passed by the Trial Court,
appellant preferred an appeal which too has been dismissed by the court below.
8. Challenging the judgment and decree passed by the courts below, it is
submitted by counsel for appellant that the courts below have failed to see that a
verbal Patta was granted by Ex-Zamindar and therefore, after the abolition of
Zamindari rights, he has acquired Bhumiswami rights and proposed the following
Substantial Questions of Law:
(1) Whether, in the facts and circumstances of the case the
impugned judgement and decree passed by the learned First Appellate
Court confirming the judgement and decree passed by the learned
Trial Court is illegal, without jurisdiction and contrary to law ?
(2) Whether, in the facts and circumstances of the case the learned
first appellate court has erred in law in over looking the material piece
of oral and documentary evidence of the plaintiff?
(3) Whether, the learned First Appellate Court has erred in law in
over looking the direction issued by this Hon’ble Court in Second
Appeal No.685/1997 which is mandatory to be followed by the
learned Trial Court as well as by the learned First Appellate Court ?
(4) Whether, the learned First Appellate Court has erred in law in
not considering, discussing and appreciating oral and documentary
evidence on record which goes unrebutted?
(5) Whether, in view of the settled possession of the plaintiff over
the suit land, the plaintiff is legally entitled to get decree for
permanent injunction in view of the law laid down by this Hon’ble
Court reported in 1970 MPWR-SN 43, reported in 1996 RN 425Signature Not Verified
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(Bhagwan Singh vs. Sardar Singh) and reported in 1996 RN 389
(Teepan Vs. Chuyn) and also in view of the law laid down by Hon’ble
Apex Court reported in Pratap Rai N. Kothari Vs. John Braganza
reported in 1999 4 SCC 403 ?
(6) Whether, in the facts and circumstances of the case the learned
first appellate court has erred in law in basing the impugned
judgement on evidence which are not on record ?
(7) Whether, in the facts and circumstances of the case, the learned
first appellate court has erred in law in drawing the presumption
regarding plaintiff’s continuous possession over the suit land ?
(8) Whether, the learned first appellate court has committed
illegality and jurisdictional error in not drawing backward and
forward possession on the basis of Khasras entries, on record ?
(9) Whether, the certified copy of Khasra entries Ex. P.1 issued by
the Patwari is permissible in evidence?
(10) Whether, the learned First Appellate Court has erred in law in
not decreeing the plaintiff’s case when the plaintiff has proved his
case by adducing the oral and documentary evidence then the burden
of proof shifted over the defendants while the defendants have failed
to adduce any evidence in support of their defence and rebuttal?
(11) Whether, the findings in impugned judgement passed by the
learned first appellate court are perverse ?
(12) Whether, the decree of injunction ought to have been passed in
favour of plaintiff when plaintiff proved to be in settled possession?
(13) Whether, the impugned judgements are speaking or reasoned
judgements ?
(14) Whether, the impugned judgement passed by the learned first
appellate court is based on surmises and conjectures ?
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9. Heard learned counsel for the parties.
10. Although the plaintiff had claimed that verbal Patta was granted to the
father of plaintiff by Ex-Zamindar but in the plaint pleadings it was claimed by
the plaintiff that verbal Patta was granted by Ex-Zamindar to the plaintiff
himself. Further, the plaintiff could not point out the name of the Zamindar who
had granted verbal Patta. Even no document has been placed on record to show
that the land in dispute was a Zamindari land. Furthermore, no documentary
evidence has been filed to prove that the plaintiff was in possession of the land in
dispute in Samvat 2007 i.e. year 1950 and Samvat 2008 i.e. year 1951. Nothing
has been placed on record to show that plaintiff had ever paid rent to the Ex-
Zamindar. Both the courts below have given a concurrent finding of fact that the
plaintiff has failed to prove that any verbal Patta was granted either to him or to
his father and he has also failed to prove that after abolition of Zamindari rights,
he has acquired the rights of Bhumiswami.
11. So far as the question of adverse possession is concerned, the plaintiff has
taken two self-contradictory pleadings. On one hand, he has claimed that he is in
possession by virtue of verbal Patta granted by Ex.Zamindar whereas on the
other hand he has claimed that he has perfected his title by way of adverse
possession. In order to establish the plea of adverse possession, the aspirant has
to admit the title of true owner.
12. The Supreme Court in the case of Hemaji Waghaji Jat Vs. Bhikabhai
Khengarbhai Harijan and others reported in (2009) 16 SCC 517 has held as
under:
14. In Secy. of State for India In
Council v. Debendra Lal Khan [(1933-34) 61 IA
78 : AIR 1934 PC 23] it was observed that theSignature Not Verified
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ordinary classical requirement of adverse
possession is that it should be nec vi, nec clam, nec
precario and the possession required must be
adequate in continuity, in publicity and in extent to
show that it is possession adverse to the competitor.
15. This Court in P. Lakshmi Reddy v. L.
Lakshmi Reddy [AIR 1957 SC 314], while
following the ratio of Debendra Lal Khan
case [(1933-34) 61 IA 78 : AIR 1934 PC 23],
observed as under : (P. Lakshmi Reddy case [AIR
1957 SC 314] , AIR p. 318, para 4)
“4. … But it is well-settled that in order to
establish adverse possession of one co-heir as
against another it is not enough to show that one
out of them is in sole possession and enjoyment of
the profits, of the properties. Ouster of the non-
possessing co-heir by the co-heir in possession who
claims his possession to be adverse, should be
made out. The possession of one co-heir is
considered, in law, as possession of all the co-heirs.
When one co-heir is found to be in possession of
the properties it is presumed to be on the basis of
joint title. The co-heir in possession cannot render
his possession adverse to the other co-heir not in
possession merely by any secret hostile animus on
his own part in derogation of the other co-heir’s
title. It is a settled rule of law that as between co-
heirs there must be evidence of open assertion of
hostile title, coupled with exclusive possession and
enjoyment by one of them to the knowledge of the
other so as to constitute ouster.”
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The Court further observed thus : (P. Lakshmi
Reddy case [AIR 1957 SC 314] , AIR p. 318, para
4)
“4. … the burden of making out ouster is on the
person claiming to displace the lawful title of a co-
heir by his adverse possession.”
16. In S.M. Karim v. Bibi Sakina [AIR 1964 SC
1254], Hidayatullah, J. speaking for the Court
observed as under : (AIR p. 1256, para 5)
“5. … Adverse possession must be adequate in
continuity, in publicity and extent and a plea is
required at the least to show when possession
becomes adverse so that the starting point of
limitation against the party affected can be found.
There is no evidence here when possession became
adverse, if it at all did, and a mere suggestion in the
relief clause that there was an uninterrupted
possession for ‘several 12 years’ or that the
plaintiff had acquired ‘an absolute title’ was not
enough to raise such a plea. Long possession is not
necessarily adverse possession and the prayer
clause is not a substitute for a plea.”
17. The facts of R. Chandevarappa v. State of
Karnataka [(1995) 6 SCC 309] are similar to the
case at hand. In this case, this Court observed as
under : (SCC p. 314, para 11)
“11. The question then is whether the appellant
has perfected his title by adverse possession. It is
seen that a contention was raised before the
Assistant Commissioner that the appellant having
remained in possession from 1968, he perfected his
title by adverse possession. But the crucial facts to
constitute adverse possession have not been
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pleaded. Admittedly the appellant came into
possession by a derivative title from the original
grantee. It is seen that the original grantee has no
right to alienate the land. Therefore, having come
into possession under colour of title from original
grantee, if the appellant intends to plead adverse
possession as against the State, he must disclaim
his title and plead his hostile claim to the
knowledge of the State and that the State had not
taken any action thereon within the prescribed
period. Thereby, the appellant’s possession would
become adverse. No such stand was taken nor
evidence has been adduced in this behalf. The
counsel in fairness, despite his research, is unable
to bring to our notice any such plea having been
taken by the appellant.”
18. In D.N. Venkatarayappa v. State of
Karnataka [(1997) 7 SCC 567 : (1998) 2 CLJ 414]
this [Ed. : The extract quoted herein below is taken
from the observations of the learned Single Judge
of the High Court in an order involved in D.N.
Venkatarayappa case, (1997) 7 SCC 567.] Court
observed as under : (SCC p. 571b-c, para 3)
“Therefore, in the absence of crucial pleadings,
which constitute adverse possession and evidence
to show that the petitioners have been in
continuous and uninterrupted possession of the
lands in question claiming right, title and interest in
the lands in question hostile to the right, title and
interest of the original grantees, the petitioners
cannot claim that they have perfected their title by
adverse possession….”
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19. In Md. Mohammad Ali v. Jagadish
Kalita [(2004) 1 SCC 271] this Court observed as
under : (SCC p. 277, paras 21-22)
“21. For the purpose of proving adverse
possession/ouster, the defendant must also prove
animus possidendi.
22. … We may further observe that in a proper
case the court may have to construe the entire
pleadings so as to come to a conclusion as to
whether the proper plea of adverse possession has
been raised in the written statement or not which
can also be gathered from the cumulative effect of
the averments made therein.”
20. In Karnataka Board of Wakf v. Govt. of
India [(2004) 10 SCC 779] at para 11, this Court
observed as under : (SCC p. 785)
“11. In the eye of the law, an owner would be
deemed to be in possession of a property so long as
there is no intrusion. Non-use of the property by
the owner even for a long time won’t affect his title.
But the position will be altered when another
person takes possession of the property and asserts
a right over it. Adverse possession is a hostile
possession by clearly asserting hostile title in denial
of the title of the true owner. It is a well-settled
principle that a party claiming adverse possession
must prove that his possession is ‘nec vi, nec clam,
nec precario’, that is, peaceful, open and
continuous. The possession must be adequate in
continuity, in publicity and in extent to show that
their possession is adverse to the true owner. It
must start with a wrongful disposition of the
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rightful owner and be actual, visible, exclusive,
hostile and continued over the statutory period.”
The Court further observed that : (SCC p. 785, para
11)
“11. … Plea of adverse possession is not a pure
question of law but a blended one of fact and law.
Therefore, a person who claims adverse possession
should show : (a) on what date he came into
possession, (b) what was the nature of his
possession, (c) whether the factum of possession
was known to the other party, (d) how long his
possession has continued, and (e) his possession
was open and undisturbed. A person pleading
adverse possession has no equities in his favour.
Since he is trying to defeat the rights of the true
owner, it is for him to clearly plead and establish
all facts necessary to establish his adverse
possession.”
21. In Saroop Singh v. Banto [(2005) 8 SCC
330] this Court observed : (SCC p. 340, paras 29-
30)
“29. In terms of Article 65 the starting point of
limitation does not commence from the date when
the right of ownership arises to the plaintiff but
commences from the date the defendant’s
possession becomes adverse. (See Vasantiben
Prahladji Nayak v. Somnath Muljibhai
Nayak [(2004) 3 SCC 376] .)
30. ‘Animus possidendi’ is one of the
ingredients of adverse possession. Unless the
person possessing the land has a requisite animus
the period for prescription does not commence. As
in the instant case, the appellant categorically states
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that his possession is not adverse as that of true
owner, the logical corollary is that he did not have
the requisite animus. (See Md. Mohammad
Ali v. Jagdish Kalita [(2004) 1 SCC 271] .)”
22. This principle has been reiterated later in M.
Durai v. Muthu [(2007) 3 SCC 114] . This Court
observed as under : (SCC p. 116, para 7)
“7. … in terms of Articles 142 and 144 of the
old Limitation Act, the plaintiff was bound to prove
his title as also possession within twelve years
preceding the date of institution of the suit under
the Limitation Act, 1963, once the plaintiff proves
his title, the burden shifts to the defendant to
establish that he has perfected his title by adverse
possession.”
23. This Court had an occasion to examine the
concept of adverse possession in T.
Anjanappa v. Somalingappa [(2006) 7 SCC 570].
The Court observed that a person who bases his
title on adverse possession must show by clear and
unequivocal evidence that his title was hostile to
the real owner and amounted to denial of his title to
the property claimed. The Court further observed
that : (SCC p. 577, para 20)
“20. … The classical requirements of
acquisition of title by adverse possession are that
such possession in denial of the true owner’s title
must be peaceful, open and continuous. The
possession must be open and hostile enough to be
capable of being known by the parties interested in
the property, though it is not necessary that there
should be evidence of the adverse possessor
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actually informing the real owner of the former’s
hostile action.”
24. In a relatively recent case in P.T.
Munichikkanna Reddy v. Revamma [(2007) 6 SCC
59] this Court again had an occasion to deal with
the concept of adverse possession in detail. The
Court also examined the legal position in various
countries particularly in English and American
systems. We deem it appropriate to reproduce
relevant passages in extenso. The Court dealing
with adverse possession in paras 5 and 6 observed
as under : (SCC pp. 66-67)
“5. Adverse possession in one sense is based on
the theory or presumption that the owner has
abandoned the property to the adverse possessor on
the acquiescence of the owner to the hostile acts
and claims of the person in possession. It follows
that sound qualities of a typical adverse possession
lie in it being open, continuous and hostile.
(See Downing v. Bird [100 So 2d 57 (Fla 1958)];
Arkansas Commemorative Commission v. City of
Little Rock [227 Ark 1085 : 303 SW 2d 569
(1957)] ; Monnot v. Murphy [207 NY 240 : 100 NE
742 (1913)] ; City of Rock Springs v. Sturm [39
Wyo 494 : 273 P 908 : 97 ALR 1 (1929)] .)
6. Efficacy of adverse possession law in most
jurisdictions depends on strong limitation statutes
by operation of which right to access the court
expires through efflux of time. As against rights of
the paper-owner, in the context of adverse
possession, there evolves a set of competing rights
in favour of the adverse possessor who has, for a
long period of time, cared for the land, developed
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it, as against the owner of the property who has
ignored the property. Modern statutes of limitation
operate, as a rule, not only to cut off one’s right to
bring an action for the recovery of property that has
been in the adverse possession of another for a
specified time, but also to vest the possessor with
title. The intention of such statutes is not to punish
one who neglects to assert rights, but to protect
those who have maintained the possession of
property for the time specified by the statute under
claim of right or colour of title. (See American
Jurisprudence, Vol. 3, 2d, p. 81.) It is important to
keep in mind while studying the American notion of
adverse possession, especially in the backdrop of
limitation statutes, that the intention to dispossess
cannot be given a complete go-by. Simple
application of limitation shall not be enough by
itself for the success of an adverse possession
claim.”
13. The Supreme Court also in the case of Nand Ram (Dead) Through Legal
Representatives And others vs. Jagdish Prasad (Dead) Through Legal
Representatives reported in (2020) 9 SCC 393 has held as under:
“42 ….. In the present proceedings, the respondent
has denied his status as that of a tenant but claimed
title in himself. The respondent claimed adverse
possession and claimed possession as owner
against a person, who has inducted him as tenant.
The respondent was to prove his continuous, open
and hostile possession to the knowledge of true
owner for a continuous period of 12 years. The
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time before or after the award of the Reference
Court nor has he surrendered possession before
asserting hostile, continuous and open title to the
knowledge of the true owner. The question of
adverse possession without admitting the title of
the real owner is not tenable. Such question has
been examined by this Court in Uttam
Chand v. Nathu Ram [(2020) 11 SCC 263].”
14. The Supreme Court in the case of A. Shanmugam Vs. Ariya Kshatriya
Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam
represented by its President and others reported in (2012) 6 SCC 430 has held
as under:
“43.6. The watchman, caretaker or a servant
employed to look after the property can never
acquire interest in the property irrespective of his
long possession. The watchman, caretaker or a
servant is under an obligation to hand over the
possession forthwith on demand. According to the
principles of justice, equity and good conscience,
the courts are not justified in protecting the
possession of a watchman, caretaker or servant
who was only allowed to live into the premises to
look after the same.
43.7. The watchman, caretaker or agent holds the
property of the principal only on behalf of the
principal. He acquires no right or interest
whatsoever in such property irrespective of his long
stay or possession.”
15. The plaintiff cannot take two self-contradictory stands i.e. on one hand that
the possession of the land was with the plaintiff in his Bhumiswami rights and on
the other hand that he has perfected his title by way of adverse possession.
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Unless and until the title of the true owner is admitted by the plaintiff, he cannot
set up his claim on the basis of adverse possession. Both the courts below have
given a concurrent findings of fact that neither the plaintiff is in possession nor
he has perfected his title by way of adverse possession. It is well established
principle of law that this Court in exercise of power under Section 100 of CPC
cannot interfere with the concurrent findings of fact even if they are found to be
erroneous. No perversity in the findings recorded by the courts below could be
pointed out by counsel for appellant. Thus, it is held that no substantial question
of law arises in the present appeal.
16. Accordingly, judgment and decree dated 02.08.2007 passed by II
Additional District Judge (Fast Track Court), Basoda, District Vidisha (M.P.) in
Regular Civil Appeal No.104-A/2006 and judgment and decree dated 31.07.2006
passed by II Civil Judge Class II, Ganjbasoda, District Vidisha (M.P.) in Regular
Civil Suit No.205A/1994 are hereby affirmed.
17. Ex. consequenti, appeal fails and is hereby dismissed in limine.
(G.S. Ahluwalia)
Judge
pd
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