Madhya Pradesh High Court
Bharat Singh (Deleted) Through Lrs (1) ... vs State Of Madhya Pradesh on 1 August, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:17877
1 SA-267-2008
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 1 st OF AUGUST, 2025
SECOND APPEAL No. 267 of 2008
BHARAT SINGH (DELETED) THROUGH LRS (1) GULABBAI AND
OTHERS
Versus
STATE OF MADHYA PRADESH
Appearance:
Mr. Rohit Bansal - Advocate for appellant(LRs.).
Mr. S.S. Kushwaha - Govt. Advocate for State.
JUDGMENT
This second appeal under Section 100 of CPC has been filed against the judgment and decree dated 20.03.2008 passed by II Additional District Judge, Vidisha, District Vidisha in Civil Appeal No. 25A/2007, as well as judgment and decree dated 30.11.2006 passed by Civil Judge, Class I, Vidisha, District Vidisha in Civil Suit No. 105A/2001.
2. Appellants are plaintiffs who have lost their case from both the Courts below.
3. The facts necessary for disposal of present appeal, in short, are that plaintiffs filed a suit for declaration of title and permanent injunction on the ground that Survey Nos. 49, 223, 224, 226, 227, and 242, total area 2.377 hectares, were given on oral lease by the Zamindar to Mohar Singh, who is the father of plaintiff No. 1, and husband of plaintiff No. 2. For the last 50 years, plaintiffs are in possession of property in dispute, and accordingly, on Signature Not Verified Signed by: ALOK KUMAR Signing time: 21-08-2025 17:53:49 NEUTRAL CITATION NO. 2025:MPHC-GWL:17877 2 SA-267-2008 the basis of adverse possession, they have acquired the title. However, the State authorities, without giving any opportunity of hearing to plaintiffs, have recorded aforesaid lands as government lands. Plaintiffs came to know about the said illegal mutation on 12.08.1999. On 30.10.2001, the Patwari started threatening the plaintiffs that they would be dispossessed from the land in dispute and patta would be granted to other villagers, and therefore, suit was filed for declaration of title and permanent injunction.
4. Defendant/State did not file any written statement.
5. The Trial Court, after framing issues and recording evidence, dismissed the suit.
6. Being aggrieved by judgment and decree passed by the Trial Court, appellants preferred an appeal, which too has been dismissed by the Appellate Court.
7. Challenging the judgments and decrees passed by the Courts below, it is submitted by counsel for appellants that land in dispute was given on oral lease by ex-Zamindar to father of plaintiff No. 1/husband of plaintiff No. 2, and since then, they are in possession of property in dispute. Therefore, either they have acquired the status of Bhumiswami or they have perfected their title by way of adverse possession.
8. Heard learned counsel for appellant.
9. Both the appellants have expired during the pendency of appeal, and accordingly, legal representatives of appellants have been brought on record and they are pursuing this appeal.
10. Appellants have filed copy of Khasra Panchasala of Samvat 2032, Signature Not Verified Signed by: ALOK KUMAR Signing time: 21-08-2025 17:53:49 NEUTRAL CITATION NO. 2025:MPHC-GWL:17877 3 SA-267-2008 i.e., year 1975, Exhibit P-4, in which name of Mohar Singh i.e. father of plaintiff No.1, is recorded in Column No.12 as a person in possession. Similarly, in the Khasra Panchasala of the year 1979-80 to 1982-83 Exhibit P-5, name of Mohar Singh is mentioned in Column No.12 as a person in possession. In the Khasra Panchasala of Samvat 2031-2035, i.e., year 1974 onwards, Exhibit P-6, the name of Mohar Singh has been mentioned as a person in possession. Similar is the case with Khasra Panchasala of Samvat 2026, i.e., of year 1969 onwards, Exhibit P-7, where name of father of plaintiff No. 1 was recorded in Column No.12. Similarly, in Khasra Panchasala of year 1984-85 to 1987-88 Exhibit P-8, name of father of plaintiff No.1 was mentioned in Column No. 12. In Khasra Panchasala of year 1993-94, to 1997-98 Exhibit P-9, name of father of plaintiff or plaintiffs No. 1 and 2 were mentioned in the revenue records in Column No.12. Similar is the situation of Khasra Panchasala of year 1998-99, Exhibit P-10, in which names of plaintiffs are mentioned in Column No.12. In Khasra Panchasala of year 2004-05, Exhibit D-1, the names of none of the person is mentioned in Column No.12, whereas land is recorded as charnoi land.
11. Thus, the moot question for consideration is as to whether plaintiffs had proved that whether the land was a zamindari land, and whether it was ever given on verbal lease to father of plaintiff No.1, namely, Mohar Singh or not?
12. Bharat Singh (PW-1) has specifically admitted in paragraph 8 of his cross-examination that he does not know that in which year, the verbal Signature Not Verified Signed by: ALOK KUMAR Signing time: 21-08-2025 17:53:49 NEUTRAL CITATION NO. 2025:MPHC-GWL:17877 4 SA-267-2008 lease was granted by ex-Zamindar and he was also not in a position to state that in whose presence, verbal lease was granted. He was also not in a position to state about the amount of land revenue. He further admitted that he was not born on the date when the verbal lease was granted. It was further stated by him that his father had died about 12 years back. He further stated that he does not know as to whether his father had filed civil suit and as to whether said suit was dismissed or not. He further denied for want of knowledge that appeal had went up to the stage of High Court. he further denied for want of knowledge that he had received a notice of eviction. However, in paragraph 12, he admitted that on 29.12.2001, he had received a notice of eviction under Section 248 of M.P.L.R. Code.
13. Thus, it is clear that plaintiffs have failed to prove that land in dispute was zamindari land and it was ever given on verbal lease by the ex-Zamindar to his father.
14. Narayan Singh (PW-3) has admitted that whenever somebody encroaches upon the government land, notices of eviction are issued. He also admitted that plaintiff No.1 has also received a notice and he had also deposited penalty. He further admitted that penalty is for encroaching upon the government land. However, he could not say as to whether plaintiff No.1 was actually dispossessed by the State Government or not.
15. Upendra Mishra (PW-4) is the Patwari of the area. He has stated that land in dispute is a charnoi land and it is in possession of State Government. Further in paragraph 11 of his cross-examination, he has stated that land in dispute has been given on lease to Nathu Kashi Bai, Jagidish Signature Not Verified Signed by: ALOK KUMAR Signing time: 21-08-2025 17:53:49 NEUTRAL CITATION NO. 2025:MPHC-GWL:17877 5 SA-267-2008 Shankariya, Mamta, Ghasiya, Hari Bai and Kashi Bai and they are in possession of the same. He further admitted that during his patrolling, he had found that those persons were in possession of the land in dispute.
16. Thus, it is clear that plaintiffs have failed to prove that land in dispute was ever given on verbal lease by ex-Zamindar, and they have also failed to prove that in Samvat 2007, his father was in possession of the property in dispute. Thus, plaintiffs have miserably failed in proving that they have acquired any Bhumiswami rights.
17. So far as question of adverse possession is concerned, 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 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 nonpossessing 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 Signature Not Verified Signed by: ALOK KUMAR Signing time: 21-08-2025 17:53:49 NEUTRAL CITATION NO. 2025:MPHC-GWL:17877 6 SA-267-2008 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 coheirs 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 coheir 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 Signature Not Verified Signed by: ALOK KUMAR Signing time: 21-08-2025 17:53:49 NEUTRAL CITATION NO. 2025:MPHC-GWL:17877 7 SA-267-2008 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 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 Signature Not Verified Signed by: ALOK KUMAR Signing time: 21-08-2025 17:53:49 NEUTRAL CITATION NO. 2025:MPHC-GWL:17877 8 SA-267-2008 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 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 Signature Not Verified Signed by: ALOK KUMAR Signing time: 21-08-2025 17:53:49 NEUTRAL CITATION NO. 2025:MPHC-GWL:17877 9 SA-267-2008 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 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 Signature Not Verified Signed by: ALOK KUMAR Signing time: 21-08-2025 17:53:49 NEUTRAL CITATION NO. 2025:MPHC-GWL:17877 10 SA-267-2008 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 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 Signature Not Verified Signed by: ALOK KUMAR Signing time: 21-08-2025 17:53:49 NEUTRAL CITATION NO. 2025:MPHC-GWL:17877 11 SA-267-2008 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."
18. 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]."
19. 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:
Signature Not Verified Signed by: ALOK KUMAR Signing time: 21-08-2025 17:53:49NEUTRAL CITATION NO. 2025:MPHC-GWL:17877 12 SA-267-2008 "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."
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, the High Court erred fundamentally in observing in para 7 that, "it was not necessary for him (defendant) to first admit the ownership of the plaintiff before raising such a 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 rights 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 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 Signature Not Verified Signed by: ALOK KUMAR Signing time: 21-08-2025 17:53:49 NEUTRAL CITATION NO. 2025:MPHC-GWL:17877 13 SA-267-2008 conditions with the aid of 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 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 ground, he was not entitled to claim the title by adverse possession against the plaintiff."
21. The Supreme 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 Signature Not Verified Signed by: ALOK KUMAR Signing time: 21-08-2025 17:53:49 NEUTRAL CITATION NO. 2025:MPHC-GWL:17877 14 SA-267-2008 seeks to defeat the rights of the true owner, and therefore, 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 possession as well as of denying the title of the true owner does not arise. The Court held as under: (SCC pp. 574-75, paras 12-14) "12. The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial 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 must 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 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 of his property.Signature Not Verified Signed by: ALOK KUMAR Signing time: 21-08-2025 17:53:49
NEUTRAL CITATION NO. 2025:MPHC-GWL:17877 15 SA-267-2008
13. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them:
'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 can be referred to his status as co-owner, it cannot be considered adverse to other 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 possession:
'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 title on adverse possession 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. In deciding whether the acts, alleged by a person, constitute adverse 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. Signature Not Verified Signed by: ALOK KUMAR Signing time: 21-08-2025 17:53:49 NEUTRAL CITATION NO. 2025:MPHC-GWL:17877 16 SA-267-2008 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 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 Bapusaheb Patil v. Balwant, (1995) 2 SCC 543] , SCC p. 554, paras 14-15.)'"
12. In Kurella Naga Druva Vudaya Bhaskara Rao [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. 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 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 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 Signature Not Verified Signed by: ALOK KUMAR Signing time: 21-08-2025 17:53:49 NEUTRAL CITATION NO. 2025:MPHC-GWL:17877 17 SA-267-2008 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 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 and the High Court also held [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 possession."
13. In Brijesh Kumar v. Shardabai [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 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. The 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 Signature Not Verified Signed by: ALOK KUMAR Signing time: 21-08-2025 17:53:49 NEUTRAL CITATION NO. 2025:MPHC-GWL:17877 18 SA-267-2008 Subba Rao, (2010) 14 SCC 316 : (2012) 1 SCC (Civ) 452], on adverse possession observing as follows: (SCC p. 322, para 15) '15. Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does 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 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 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 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 Signature Not Verified Signed by: ALOK KUMAR Signing time: 21-08-2025 17:53:49 NEUTRAL CITATION NO. 2025:MPHC-GWL:17877
19 SA-267-2008 diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour 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 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."
15. The matter has been examined by a Constitution Bench in M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das [M. Siddiq (Ram Janmabhumi 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. 703-706, 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 ought to be cognizant of the fact that any claim of adverse possession against the Hindus or the temple would 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 Signature Not Verified Signed by: ALOK KUMAR Signing time: 21-08-2025 17:53:49 NEUTRAL CITATION NO. 2025:MPHC-GWL:17877 20 SA-267-2008 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 which 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 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(a), it becomes evident that beyond stating that the Muslims have been in long, exclusive and continuous possession 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 the rights of the true owner and the law is not 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-Judge Bench of this Court noted that the concept of possession is "polymorphous" embodying both a right (the right to enjoy) and a fact (the real intention). The learned Judge held: (SCC p. 278, para 13) Signature Not Verified Signed by: ALOK KUMAR Signing time: 21-08-2025 17:53:49 NEUTRAL CITATION NO. 2025:MPHC-GWL:17877 21 SA-267-2008 '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 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. speaking for a three-Judge Bench of this Court dwelt on the "classical requirement" of adverse possession: (AIR pp. 317-18, 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. of State for India in Council v. Debendra Lal Khan, 1933 SCC OnLine PC 65 :
(1933-34) 61 IA 78] IA at p. 82.) 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 Signature Not Verified Signed by: ALOK KUMAR Signing time: 21-08-2025 17:53:49 NEUTRAL CITATION NO. 2025:MPHC-GWL:17877
22 SA-267-2008 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. (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 actual possession with the requisite animus.' 1149. In Karnataka Board of Wakf v. Union of India [Karnataka Board of Wakf v. Union of India, (2004) 10 SCC 779] , S. Rajendra Babu, J. speaking for a 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 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 Signature Not Verified Signed by: ALOK KUMAR Signing time: 21-08-2025 17:53:49 NEUTRAL CITATION NO. 2025:MPHC-GWL:17877 23 SA-267-2008 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.' 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 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. Furthermore, two self contradictory stand, i.e., adverse possession and possession by virtue of title cannot be raised.
24. No other argument is advanced by counsel for appellants.
25. It is well-established principle of law that unless and until, the concurrent findings of facts recorded by the Courts below are shown to be perverse, this Court in exercise of power under Section 100 of CPC cannot interfere with the findings even if they are found to be erroneous. This Court has also independently considered the case of appellants and did not find any illegality or perversity in the findings recorded by the Courts below.
26. As no substantial question of law arises in the present appeal, accordingly, judgment and decree dated 20.03.2008 passed by II Additional District Judge, Vidisha, District Vidisha in Civil Appeal No. 25A/2007, as well as judgment and decree dated 30.11.2006 passed by Civil Judge, Class Signature Not Verified Signed by: ALOK KUMAR Signing time: 21-08-2025 17:53:49 NEUTRAL CITATION NO. 2025:MPHC-GWL:17877 24 SA-267-2008 I, Vidisha, District Vidisha in Civil Suit No. 105A/2001, are hereby affirmed.
27. Appeal fails and is hereby dismissed.
(G. S. AHLUWALIA) JUDGE AKS Signature Not Verified Signed by: ALOK KUMAR Signing time: 21-08-2025 17:53:49