Madhya Pradesh High Court
Shivendra Singh vs The State Of Madhya Pradesh on 28 July, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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1 S.A. No.1887 of 2019
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 28th OF JULY, 2025
SECOND APPEAL No. 1887 of 2019
SHIVENDRA SINGH
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri V.K. Bhardwaj, Senior Advocate with Shri Rohit Batham,
Advocate for the appellant.
Shri K.N. Gupta Senior Advocate with Ms. Suhani Dhariwal and Shri
Santosh Agrawal, Advocate for respondent No.3.
JUDGMENT
This second appeal, under Section 100 of CPC, has been filed against
the judgment and decree dated 17-05-2019 passed by I Additional District
Judge, Gwalior in Regular Civil Appeal No.14A/04, by which the judgment
and decree dated 5-03-2004 passed by X Civil Judge Class II, Gwalior in
Regular Civil Suit No. 8A/03 has been set aside.
2. The appellant is the plaintiff No. 2 and respondent No. 2 is the plaintiff
No. 1. According to the case of plaintiffs, the grandfather of plaintiff No. 1
was Lal Singh, whereas the grandfather of plaintiff No. 2 was Bhikam Singh.
Khasra No. 6, Area 12 Bigha 18 Biswa and Khasra No. 8/2, Area 15 Bigha 19
Biswa, situated in village Sirol, Tahsil Gird, District Gwalior is the disputed
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property. It is the case of the plaintiffs that Durgo, widow of Sevaram, was
the Zamindar of Khasra No. 6, whereas Gendalal, son of Ramprasad, was
Zamindar of Khasra No. 8/2. The aforesaid land was given on lease to the
grandfathers of the plaintiffs on 18/06/1998 (Samvat 2005), and since then
the grandfathers of the plaintiffs were in cultivating possession of the land in
dispute. After their death, plaintiffs have come in possession of the land in
dispute and they are cultivating the same. It is submitted that in the Khasra of
year 2007 to 2014, the names of the plaintiffs were recorded in the revenue
record, whereas in the Khasra of Samvat 2035 to 2038 and 2044 to 2048, the
names of the grandfathers of the plaintiffs were recorded in the capacity of
the person in possession. Thereafter, the land in dispute was mutated in the
name of the Forest Department. The plaintiffs came to know about the said
fact only when they obtained the certified copy of the Khasra on 12-11-2002.
It is the case of the plaintiffs that the predecessors of the plaintiffs were in
possession of the property in dispute three years prior to Samvat 2006 and
from thereafter the plaintiffs are in possession of the land in dispute.
Therefore, the plaintiffs and their predecessors are in possession for the last
43 years. Accordingly, it was prayed that since the plaintiffs and their
predecessors are in possession of the property in dispute, therefore, they are
entitled to be declared as owner and the State and its functionaries may be
restrained from interfering with the peaceful possession of the plaintiffs.
Since the primary relief was claimed against the State Government, therefore,
a notice under Section 80 of CPC was also required. However, it was prayed
that in case if the plaintiffs are required to wait for the statutory period to
expire, then there is every possibility that they may be dispossessed.
Therefore, a separate application under Section 80(2) of CPC was also filed.
Accordingly, it was the case of the plaintiffs that the cause of action arose on
12-11-2002 when they obtained the certified copy of the Khasra. Thus, it was
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prayed that a decree be passed in favour of the plaintiffs declaring that they
are the Bhumiswami of the land in dispute and the defendants must be
restrained from interfering with the peaceful possession of the plaintiffs and it
was also prayed that a declaration may be given that the plaintiffs are entitled
to get their names mutated in the revenue records.
The defendant/State filed its written statement and claimed that the
plaintiffs have not filed any document to show that they are in possession of
the property in dispute. It was pleaded that in absence of prayer for
possession, the suit itself is not maintainable. No document to show the
Khasra of Samvat 2035 to 2038 and 2044 to 2048 was filed. The plaintiffs
have sought that the revenue record of Samvat 2059 be corrected, whereas the
period of limitation for correction of the revenue entry is one year. The
plaintiffs had not made any effort to get the revenue records corrected during
the said period and thus the suit is barred by limitation. The suit has not been
properly valued. It was further stated that although the plaintiffs had claimed
that they got the certified copy of the Khasra on 12-11-2002, but as per the
endorsement made on the certified copy, it is clear that the application for
obtaining the certified copy was filed on 2-7-1986 and certified copy was
delivered on 18-8-1986. Therefore, even otherwise, the suit filed by the
plaintiff is also barred by time. The cause of action did not arise in favour of
plaintiff on 12-11-2002. It is submitted that from Samvat 2006, the State
Government has been recorded as the owner of the property in dispute. The
names of predecessors of the plaintiffs were never recorded as persons in
possession. Even if the predecessors of the plaintiff were in possession, still
their possession was in the capacity of encroachers. Therefore, they are not
entitled for any relief and thus it was prayed that the suit filed by the plaintiff
be dismissed with a cost of Rs. 5,000.
3. The trial court, after framing issues and recording evidence, decreed
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the suit by judgment and decree dated 5-3-2004 in Civil Suit No. 8-A/2003.
Being aggrieved by the judgment and decree passed by the trial court, the
respondents/State preferred an appeal under Section 96 of CPC along with an
application filed under Section 5 of the Limitation Act. The appellate Court
rejected the application filed under Section 5 of the Limitation Act and
accordingly dismissed the suit as barred by time.
4. Being aggrieved by the order passed by the appellate Court, the State
preferred Second Appeal No. 143/2008. By judgment dated 8th of April 2011,
the said second appeal was dismissed by a coordinate Bench of this Court by
holding that the appellate Court did not commit any mistake by rejecting the
application filed under Section 5 of the Limitation Act. Being aggrieved by
the judgment and decree dated 8th of April 2011 passed by this Court, the
appellant preferred Civil Appeal No. 2245/2018 and the Supreme Court, by
order dated 16th of February 2018, set aside the order passed by the High
Court in Second Appeal No. 143/2008 as well as the order passed by the
appellate Court, and delay in filing an appeal was condoned by the Supreme
Court and the matter was remitted back to the first appellate Court for fresh
decision on merits in accordance with law. The appellate Court, by the
impugned judgment and decree dated 17-5-2019, allowed the appeal and
dismissed the suit filed by appellant No. 1 and respondent No. 2.
5. It is not out of place to mention here that respondent No. 3 was not
impleaded as a party in the civil suit. It appears that after the matter was
remanded by Supreme Court, the respondent No. 3 filed an application under
Order 1 Rule 10 CPC seeking permission for its impleadment as defendant.
The appellate Court, by order dated 21-12-2018, rejected the application filed
by the respondent No. 3 for impleadment. Being aggrieved by the rejection of
the application filed by respondent No. 3 under Order 1 Rule 10 CPC, it
appears that the respondent No. 3 filed M.A. No. 128/2019. By order dated
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23-4-2019, passed by a Coordinate Bench of this Court, the said appeal was
disposed of with the consent of the parties with a direction that the first
appellate Court shall grant opportunity of hearing to the parties concerned
including the Svastik Education and Welfare Society, Gwalior/respondent
No.3 with the State Government and shall decide the regular civil appeal
pending before it as expeditiously as possible. Accordingly, the respondent
No. 3 was also heard by the first appellate Court while deciding the appeal
filed by the State Government.
6. However, one thing is clear that respondent No. 3 was not impleaded as
defendant by the plaintiffs in the suit. They moved an application for the first
time after the matter was remanded back by the Supreme Court and their
application under Order 1 Rule 10 CPC was rejected and even the
miscellaneous appeal filed by the respondent No. 3 was disposed of only with
liberty to argue along with the State Government. Thus, it is clear that the
respondent No. 3 was never impleaded as defendant in the present suit.
Therefore, any judgment passed in this case will not apply to the respondent
No. 3 and neither this judgment would be used against the interest of the
respondent No. 3 nor it will be used in favor of the respondent No. 3.
7. Challenging the judgment and decree passed by the appellate court, it is
submitted by counsel for the appellant that in the Patta of Samvat 2005, the
name of Lal Singh son of Machal Singh, Bhikam Singh son of Raja Ram
Singh, and Kaptan Singh son of Tatariya, were recorded in respect of Khasra
No. 6, whereas in the Patta of Samvat 2005, the name of Bhikam Singh son
of Raja Ram, and Lal Singh son of Machal Singh, were recorded in respect of
Khasra No. 8/2. These documents have been filed as Exhibit P-38 and P-39.
It is submitted that it is clear from the aforesaid documents that in Samvat
2005, the names of the grandfather of the plaintiffs were recorded in the
revenue records as Gair Marusi Krishak, therefore, it is incorrect to say that
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the plaintiffs have failed to prove any documentary evidence to show that
they were in possession of the property in dispute. It is further submitted that
it is clear from the Khasra of Samvat 2007 (Ex. P-5), Samvat 2008 (Ex. P-6),
Samvat 2009 (Ex. P-7), Kistband Khatoni of year 1955 (Ex. P-8), Kistband
Khatoni of Samvat 2012 (Exhibit P-9), etc., the names of Lal Singh and
Bhikam Singh were recorded as agriculturists and therefore it is clear that
they were in possession of the property in dispute. It is further submitted that
there is a presumption attached to the revenue entries and the same has been
ignored by the lower appellate Court. It is further submitted that the Court
below failed to see that the Forest Act, 1927 came into force in M.P. On 1-
11-1956, therefore, the property in dispute could not have been recorded in
the name of the Government/Forest and, accordingly, proposed the following
substantial questions of law:-
“i) Whether the learned lower appellate court has not observed
order 41 rule 31 of the Code of Civil Procedure, 1908, the point of
determination framed by learned lower appellate court are beyond
pleading & evidence and not framed point of determination as to
why judgment of learned trial court is erroneous in the eyes of
law?
ii) Whether the learned lower appellate court didn’t consider the
judgment of learned trial court in the light of pleadings of parties
and forgot true effect of order 8 rule 5 of the Code of Civil
Procedure, 1908?
iii) Whether the learned lower appellate court failed to discuss
the conclusions of learned trial court and the learned lower
appellate court made out a new case without pleadings?
iv) Whether the learned lower appellate court failed to
understand the effect of entries in revenue records and acted
against the principle laid down by Hon’ble High Court in 1997
MPRN 381 parties Laxman Rao V/s State of M.P. & another
and also failed to observe that rights are accrued to the appellants
under the law?
v) Whether the learned lower appellate court failed to observe
that Forest Act 1927 came into force in M.P. On 01.11.1956?
vi) Whether the learned lower appellate court failed to notice
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the trite law that no pleadings, no evidence and therefore no issue?
vii) Whether the learned lower appellate court erred in allowing
application under order 41 rule 27 of the Code of Civil Procedure,
1908 and so also erred in arraying him as a party?”
8. In reply, the counsel for the State has supported the findings recorded
by the appellate court. Shri K.N. Gupta, Senior Advocate, and Shri Santosh
Agarwal appeared for respondent No. 3 and submitted that it was Rayyatwari
land and not Zamindari land, and therefore the contention of the appellants
that the land was given on oral lease to the grandfathers of the plaintiffs by a
Ex-Zamindar is false. It is further submitted that there is nothing on record to
suggest that the land was ever recorded in the name of Durgo Bai and
Gendalal.
9. Heard the learned counsel for the parties.
10. The arguments which were advanced by the counsel for the appellant
can be summarized as under:-
That the, predecessors of the appellants had become Krishak and
therefore they had acquired the status of Bhumiswami, and the plaintiffs and
their predecessors were in possession of the property in dispute for the last
more than 40 years and therefore they have become the owner.
The basic foundation for claiming title over the land in dispute is that,
according to the plaintiffs, Durgo Bai was the Zamindar of Khasra No. 6
whereas Gendalal was the Zamindar of Khasra No. 8/2. The second
contention is that Durgo Bai and Gendalal gave the aforesaid land on verbal
lease to the predecessor/grandfather of the plaintiffs, namely Lal Singh and
Bhikam Singh. Thereafter, Lal Singh and Bhikam Singh’s names were
recorded in the revenue records and they remained in possession, and after
their death, the plaintiffs are in possession of the property in dispute and
therefore they have acquired the title of Bhumiswami.
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11. The first question for consideration is as to whether the plaintiffs have
proved that the land in dispute was a Zamindari land of Durgo, widow of
Sevaram, and Gendalal or not?
12. The plaintiffs have not filed any document to show that the land in
dispute was a Zamindari land and Durgo and Gendalal were the Zamindars of
Khasra Nos. 6 and 8/2. On the contrary, it is the case of the respondents that
the land was a Rayyatwari land and not Zamindari land. Since the plaintiffs
have failed to prove that Durgo Bai and Gendalal were Zamindars of Khasra
No.6 and Khasra No. 8/2, therefore, this Court is of considered opinion that
the first question which is essential to decide the dispute in question has to be
answered in negative and thus it is held that plaintiffs have failed to prove
that Durgo and Gendalal were Zamindars of Khasra Nos. 6 and 8/2
respectively.
13. It is next contended by counsel for appellants that Durgo had executed
a Patta in favour of Bhikam Singh, Lal Singh and Kaptaan Singh in respect
of Khasra No. 6 (Ex. P-38), and Gendalal had executed a Patta in favour of
Bhikam Singh and Lal Singh in respect of Khasra No. 8/2 (Ex. P-39), and
therefore, from thereafter, Bhikam Singh and Lal Singh were in cultivating
possession of the land in dispute. This Court has already come to a
conclusion that the plaintiffs have failed to prove that Durgo and Gendalal
were the Zamindars of Khasra No. 6 and 8/2 respectively. Therefore, even if
it is found that Patta (Ex. P-38) and Patta in respect of Khasra No. 8/2 (Ex.
P-39) were executed by them, still in absence of any right or title in favour of
Durgo and Gendalal, it cannot be said that any right to hold the property had
ever been transferred in favour of Bhikam Singh and Lal Singh. Even
otherwise, this Court is of the considered opinion that the plaintiffs have
failed to prove the execution of Patta (Ex. P-38 and P-39).
14. The appellants have examined Shivendra Singh. Shivendra Singh has
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stated that Patta (Ex. P-38) was executed by Durgo and he identified the
thumb impression of Bhikam Singh and the signature of Lal Singh. This
witness has not stated that he can identify the signatures of Durgo. Similarly,
this witness has stated that Patta (Ex. P-39) was executed by Gendalal. This
witness has also not stated that he can identify the signature on Patta. This
witness has merely stated that he can identify the thumb impression of
Bhikam Singh and the signatures of Lal Singh. This witness has also stated
that Bihari and Kisna, who were the attesting witnesses, have expired.
Thus, it is clear that Ex.P-38 was allegedly executed by Durgo in favour of
Bhikam Singh, Lal Singh and Kaptaan Singh, and Ex.P-39 was executed by
Gendalal in favour of Bhikam Singh and Lal Singh. Both the documents were
attested by Bihari and Kishna, who have also expired. Both the documents
are unregistered documents. If a witness has expired, then the plaintiff should
have examined any person who can identify the signatures of Bihari and
Kisna. No witness has been examined by the plaintiff to prove that Patta (Ex.
P-38 and P-39) bear the signatures of Bihari and Kisna. Similarly, the
plaintiffs have not examined the legal representatives of Durgo and Gendalal
to prove the signatures of Durgo and Gendalal on Exhibit P-38 and P-39
respectively. In other words, the signatures of Durgo, Bihari and Kisna on Ex.
P-38, and the signatures of Gendalal, Bihari and Krishna on Ex. P-39, have
remained unproved. Unless and until it is proved by the plaintiff that Patta
(Ex. P-38) bears the signature of Durgo and Patta (Ex. P-39) bears the
signature of Gendalal, it cannot be said that the execution of the said Pattas,
i.e. Ex. P-38 and P-39, was duly proved. Therefore, this Court is of the
considered opinion that not only the plaintiffs have failed to prove that
Durgo and Gendalal were Zamindars of Khasra No. 6 and 8/2 respectively,
but they have also failed to prove the execution of Patta by Durgobai (Ex.
P-38) and Patta by Gendalal (Ex. P-39). Therefore, the very source of right as
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claimed by the plaintiffs could not be proved by them.
15. The next question for consideration is that Patta (Ex. P-38) was issued
in the name of Bhikam Singh, Lal Singh and Kaptaan Singh. Accordingly, the
counsel for the appellant was directed to clarify who was Kaptan Singh and
whether he was in any manner related to the plaintiffs or not. It is fairly
conceded by counsel for the appellant that there is nothing on record to
suggest about the relationship of the plaintiffs with Kaptaan Singh.
16. The next question for consideration is whether the plaintiffs are the
grandsons of Bhikam Singh and Lal Singh and whether the plaintiffs can
succeed their property by bypassing the other Class-I heirs of Bhikam Singh
and Lal Singh ?
17. The plaintiffs have examined Kashiprasad Shakya (PW-1), R.P.
Bhatnagar (PW-2), Mehtab Singh (PW-3) and Shivendra Singh (PW-4).
Kashiprasad (PW-1) and R.P. Bhatnagar (PW-2) are revenue officers who
have proved the revenue records. Mehtab Singh (PW-3) is an agriculturist
who claims that he had seen the plaintiffs and their predecessors in
cultivating possession. Shivendra Singh (PW-4) is the only witness who was
examined by the plaintiffs. As already pointed out, the plaintiffs have not
filed any document to show that Durgo and Gendalal were ever recorded as
Zamindars. On the contrary, it is clear from the Khasra Panchsala of Samvat
2008 and 2009 that the land in dispute was Rayyatwari land. Rayyatwari land
is a land which is under the control and ownership of the Government and
Zamindars have no right over it. Neither in the plaint nor in the evidence of
Shivendra Singh it has been clarified that how they bypassed the Class-I heirs
of Bhikam Singh and Lal Singh. It is not their case that any Will, gift, or sale
deed was ever executed by Bhikam Singh and Lal Singh in their favor. They
have not clarified that how they can succeed to the property of Kaptan Singh.
Even the date of death of Bhikam Singh and Lal Singh is not on record. Even
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the plaintiffs have not given the pedigree in the plaint. They have not clarified
that who were the sons and daughters of Bhikam Singh and Lal Singh.
Therefore, even otherwise, if it is presumed that the land in question was
given on Patta to Bhikam Singh and Lal Singh, still the plaintiffs have failed
to prove that they are the legal representatives of Bhikam Singh and Lal
Singh and they had succeeded the property in accordance with the Hindu
Succession Act.
18. Furthermore, in order to bring the suit within a period of limitation, it
was claimed by the plaintiffs that when they obtained the certified copy of the
revenue records on 12-11-2002, then they came to know that the name of the
State Government was already recorded in the revenue records, and thus they
claimed that the cause of action arose for the first time on 12-11-2002. The
plaintiffs have filed the revenue records (Ex. P-1 to P-3), and the certified
copies of the said documents were obtained by the plaintiff on 18-12-2002.
Thus, the case of the plaintiffs that they got the certified copy on 12-11-2002
and therefore came to know about the recording of the name of the State
Government is false because the certified copies were obtained by them
subsequent to 12-11-2002 and not prior thereto. The certified copies of the
other Khasra Pansalas were supplied to the appellant in the year 1986. In
order to take advantage of the lack of knowledge, the person has to plead and
prove that, in spite of his due diligence, he could not obtain the documents.
Section 17 of the Limitation Act read as under:
17. Effect of fraud or mistake.–
(1)Where, in the case of any suit or application for which a period
of limitation is prescribed by this Act,
(a) the suit or application is based upon the fraud of the
defendant or respondent or his agent; or
(b) the knowledge of the right or title on which a suit or
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person as aforesaid; or
(c) the suit or application is for relief from the consequences
of a mistake; or
(d) where any document necessary to establish the right of the
plaintiff or applicant has been fraudulently concealed from him,
the period of limitation shall not begin to run until plaintiff or
applicant has discovered the fraud or the mistake or could, with
reasonable diligence, have discovered it; or in the case of a
concealed document, until the plaintiff or the applicant first had the
means of producing the concealed document or compelling its
production:
Provided that nothing in this section shall enable any suit to be
instituted or application to be made to recover or enforce any charge
against, or set aside any transaction affecting, any property which–
(I) in the case of fraud, has been purchased for valuable
consideration by a person who was not a party to the fraud and
did not at the time of the purchase know, or have reason to
believe, that any fraud had been committed, or
(ii) in the case of mistake, has been purchased for valuable
consideration subsequently to the transaction in which the
mistake was made, by a person who did not know, or have
reason to believe, that the mistake had been made, or
(iii) in the case of a concealed document, has been purchased
for valuable consideration by a person who was not a party to
the concealment and, did not at the time of purchase know, or
have reason to believe, that the document had been concealed.
(2) Where a judgment-debtor has, by fraud or force, prevented
the execution of a decree or order within the period of limitation,
the court may, on the application of the judgment-creditor made
after the expiry of the said period extend the period for execution of
the decree or order:
Provided that such application is made within one year from
the date of the discovery of the fraud or the cessation of force, as the
case may be.
Thus, it is clear that in absence of any pleading that, in spite of
reasonable diligence, the appellants could not discover the recording of nameSignature Not Verified
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of State and could not obtain the certified copies of Ex. P-1 to P-3, this Court
is of considered opinion that a bald statement that only after obtaining the
certified copies of the aforesaid documents on 12-11-2002 they got the
knowledge of the mutation in the revenue records and therefore the cause of
action arose on 12-11-2002 cannot be accepted. Thus, it is clear that the suit
filed by the appellants was also barred by time, as they should have filed the
suit within a period of three years from the date of mutation of the name of
the State Government in the revenue records.
19. It is next contended by counsel for the appellant that since appellant
No. 1 and respondent No. 2 are in possession of the property in dispute for
the last more than 40 years, therefore, they have perfected their title by way
of adverse possession and thus, it is submitted that even if the Court below
had come to the conclusion that the plaintiffs have failed to prove their title
over the land in dispute, still they were in open and hostile possession.
20. Heard the learned counsel for the appellant on the said question.
21. In order to claim the ground of adverse possession, the aspirant has to
admit the title of the true owner, and only thereafter he can claim that he was
in open and hostile possession. Long possession by itself is not sufficient to
hold that the person is in hostile or adverse possession.
22. 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
the ordinary classical requirement of adverse
possession is that it should be nec vi, nec clam,
nec precario and the possession required must
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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.”
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
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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 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
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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….”
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
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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 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
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person possessing the land has a requisite
animus the period for prescription does not
commence. As in the instant case, the appellant
categorically states 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 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
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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 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
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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.”
23. 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 respondent
has not led any evidence of hostile possession
to the knowledge of true owner at any 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].”
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24. 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.”
25. Therefore, even assuming that the plaintiffs were in possession, still
they cannot claim their title on the basis of adverse possession because they
cannot take two self-contradictory pleas for the simple reason that their case
is based on title, and therefore they have never accepted the title of the true
owner. Claiming possession on the basis of title and claiming possession on
the basis of adverse possession are just contrary to each other, and this
alternative plea is not available to the plaintiffs.
26. The Supreme Court in the case of Narasamma & Ors. Vs. A.
Krishnappa (dead) through Lrs decided on 26/08/2020 in Civil Appeal
No.2710/2010 has held as under:-
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32. In Karnataka Board of Wakf case, it has been clearly set out
that a plaintiff filing a title over the property must specifically
plead it. When such a plea of adverse possession is projected, it is
inherent in the nature of it that someone else is the owner of the
property. In that context, it was observed in para 12 that “….the
pleas on title and adverse possession are mutually inconsistent and
the latter does not begin to operate until the former is
renounced….”
33. The aforesaid judgment in turn relied upon the judgment in
Mohan Lal (Deceased) Thr. LRs., which observed in para 4 as
under:
“4. As regards the first plea, it is inconsistent with the
second plea. Having come into possession under the
agreement, he must disclaim his right thereunder and
plead and prove assertion of his independent hostile
adverse possession to the knowledge of the transferor or
his successor in title or interest and that the latter had
acquiesced to his illegal possession during the entire
period of 12 years, i.e., upto completing the period of his
title by prescription nec vi, nec clam, nec precario. Since
the appellant’s claim is founded on Section 53-A, it goes
without saying that he admits by implication that he came
into possession of the land lawfully under the agreement
and continued to remain in possession till date of the suit.
Thereby the plea of adverse possession is not available to
the appellant.”
34. In order to establish adverse possession an inquiry is
required to be made into the starting point of such adverse
possession and, thus, when the recorded owner got
dispossessed would be crucial.”
27. No other argument is advanced by counsel for the appellant.
28. The defendants had examined Munnalal (DW-1) who brought the
revenue record of Samvat 1997 (Ex. D-1) of year 2003-2004 and 2004 (Ex.
D-2). According to this witness, in the Khasra Panchsala of year 2003-2004,
there is a reference of order dated 29-4-2003 passed by the Nazul
Department, Bhopal, by which the land in dispute has been given to Murali
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Lal Pavaiya Education Society, Gwalior, Co-Excellent Circle of Study
School. As already pointed out, respondent No. 3 was never impleaded as
defendant. Even its application filed under Order 1 Rule 10 CPC was rejected
by the trial Court, and the miscellaneous appeal filed by respondent No. 3 for
its impleadment was not granted by the Coordinate Bench of this Court. The
Coordinate Bench had merely permitted respondent No. 3 to argue along with
the State counsel. Thus, it is clear that respondent No. 3 cannot get advantage
of the revenue entry made in Ex. D-1 and D-2. Furthermore, as respondent
No. 3 is not a party to the appeal and no counterclaim was ever filed by it
claiming title over the land in dispute by virtue of order passed by the State
Government, coupled with the fact that order of Nazul department is also not
produced and proved, therefore, it is held that for the purposes of this appeal
respondent No. 3 would not get benefit of any entry made in Ex. D-1 and
D-2.
29. Considering the totality of the facts and circumstances of the case, this
Court is of considered opinion that, as no substantial question of law arises in
the present appeal, accordingly, the judgment and decree dated 17-5-2019
passed by I Additional District Judge, Gwalior in Regular Civil Appeal No.
14A/04 is hereby affirmed.
30. Appeal fails and is hereby dismissed.
(G.S. Ahluwalia)
Judge
(and)
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