Madhya Pradesh High Court
Heeralal vs State Of M.P. on 28 November, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:30982
1 SA-3-2011
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 28 th OF NOVEMBER, 2025
SECOND APPEAL No. 3 of 2011
HEERALAL
Versus
STATE OF M.P.
Appearance:
Shri Anand V.Bhardwaj, Advocate for the appellants.
Shri G.K. Agrawal, Govt. Advocate for the respondent/State.
JUDGMENT
This second appeal, under section 100 of CPC, has been filed against the judgment and decree dated 27/9/2010 passed by Additional District Judge, Mungawali, District Ashok Nagar in Civil Appeal No. 14A/2009, as well as, judgment and decree dated 10/9/2009 passed by Civil Judge Class I Mungawali, District Ashok Nagar in Civil Suit No. 22A/2008.
2. The original plaintiff Heeralal has expired during the pendency of this appeal and now this appeal is being prosecuted by his legal representatives. The appellants are the legal representative of the plaintiff, who has lost his case from both the Courts below.
3. Facts necessary for disposal of present appeal, in short, are that the original plaintiff filed a suit for declaration of title and permanent injunction by pleading inter alia that Dalel Singh was the Zamindar of village Khairkhadi. Name of Dalel Singh was recorded in the revenue records in respect of Survey Nos. 15/1, 16 (new Survey No. 44). The said land was in the ownership of Dalel Singh and in Samvat 2007 i.e. year 1946, the disputed land was given by Dalel Singh to the plaintiff as Sikmi Kashtkar and since then plaintiff is in cultivating possession of the said land and is Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 02-12-2025 19:09:36 NEUTRAL CITATION NO. 2025:MPHC-GWL:30982 2 SA-3-2011 yielding crops. Plaintiff after spending thousands of rupees had made the land cultivable after removing shrubs, trees, etc. The name of the plaintiff was thereafter recorded in the revenue records in the Khasra Panchsala of Samvat 2007, 2008 and 2009 in the capacity of a person in possession, whereas in the Khasra Panchsala of Samvat 2010, name of plaintiff was recorded as Upkrishak which continued up to Samvat 2013. The revenue record was corrected in Samvat 2013. However, the name of plaintiff was neither mentioned as Upkrishak nor in possession in the Khasra Panchsala of Samvat 2014. Later on, from Samvat 2018 to 2021, Samvat 2023 to 2028, Samvat 2027 to 2030 and from Samvat 2028 to 2032, name of the plaintiff was recorded as "without permission". In the Khasra Panchsala of Samvat 2050 and 2051, name of plaintiff was recorded as an encroacher. However, plaintiff was inducted as Sikmi Kashtkar by ex-Zamindar Dalel Singh. After the abolition of Zamindari rights, plaintiff became Pacca Krishak and after the Madhya Pradesh Land Revenue Code came into force i.e. in the year 1959, plaintiff acquired the rights of Bhumiswami. It was further pleaded that one Hazrat Singh, in a clandestine manner, obtained a Patta in respect of the disputed property from Tahsil Office in Case No. 96A19/72-73 and the plaintiff preferred an appeal which was registered as Case No. 22/77-78. The said appeal was allowed and the Patta granted to Hazrat Singh was cancelled. Thereafter, once again one Bhagwati Bai obtained Patta in respect of six bigha of land but since the plaintiff was in possession of the said land, therefore again he preferred an appeal and by order dated 19/2/1990 passed by SDO Mungawali in Case No.86/88-89, the Patta granted to Bhagwati Bai was cancelled. However, the name of the plaintiff was recorded in the revenue record as a "person in possession" but his name was not recorded in the capacity of Bhumiswami. It was further pleaded that Survey No. 43 situated in village Khairkhadi is in the ownership of the plaintiff. and Survey No. 43 and 44 are adjoining to each other and there is an earthen boundary on which plaintiff has constructed a house and is residing in the same. The plaintiff is cultivating the land Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 02-12-2025 19:09:36 NEUTRAL CITATION NO. 2025:MPHC-GWL:30982 3 SA-3-2011 and has also planted fruit bearing trees. Later on plaintiff was informed by Patwari that property in dispute is a Government land which is required to be allotted. However, in spite of information given by the plaintiff, no action was taken and, accordingly, the suit was filed for declaration that plaintiff is the owner and in possession of Survey No. 44, area 1.881 hectares situated in village Khairkhedi, Tahsil Mungawali. and in the alternative, it was pleaded that since the plaintiff is in possession of the said land for the last 40 to 45 years, therefore, he may be declared as an owner on the basis of adverse possession and permanent injunction was also sought.
4. Defendant also filed his written statement and admitted that Dalel Singh was the Zamindar of Village Khairkhedi and 1.881 hectares of land of survey No. 44 was recorded in the name of Dalel Singh. However, the revenue record which was filed by the plaintiff was disputed. It was claimed that Dalel Singh had not given the said land to the plaintiff on lease as a Sikmi Kashtkar. The entries with regard to the "possession" of plaintiff in the revenue records were also disputed. It was claimed that the plaintiff has encroached upon the land in dispute and proceedings have been initiated for dispossession of plaintiff. It was further claimed that plaintiff never became the Pacca Krishak and never acquired the rights of Bhumiswami after coming into force of Madhya Pradesh Land Revenue Code. It was further stated that the civil suit is not maintainable.
5. The trial Court, after framing issues and recording evidence, dismissed the suit. Being aggrieved by judgment and decree passed by the trial Court, the appellant preferred an appeal, which too has been dismissed.
6. Challenging the judgment and decree passed by the Courts below, it is submitted by counsel for the appellants that the Courts below failed to see that once Dalel Singh was the Zamindar of Village Khairkhedi and he had given a Patta (Ex.P/4) to the plaintiff, then on abolition of Zamindari rights, plaintiff had become a Pacca Krishak and after the Madhya Pradesh Land Revenue Code came into force, plaintiff Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 02-12-2025 19:09:36 NEUTRAL CITATION NO. 2025:MPHC-GWL:30982 4 SA-3-2011 acquired Bhumiswami rights and proposed the following substantial questions of law:
"i) Whether the two courts below failed to consider the effect of Section 38 of the Madhya Bharat Zamidari Abolition Act, which came into force on 05.06.1951 and of Section 185(II)(a) & (d) and of Section 190 of the M.P. Land Revenue Code, which came into force on 02.10.1959 and gravely erred in dismissing the suit of the plaintiff/appellant?
ii) Whether the learned two courts below failed to consider the relevant principle of law regarding conferral of Bhumiswami rights and passed the impugned judgment & decree on extraneous consideration?
iii) Whether the approach of the learned courts below is illegal that after eflux of patta ie. 5 years no right remained in the plaintiff/appellant and as such the possession of plaintiff/appellant became illegal?
iv) Whether the learned courts below failed to consider the entry of plaintiff/appellant as Upkrishak in Khasra of Samvat 2010 in true perspective and so also failed to consider the law laid down by this Hon'ble court in the regard i.e. Gokul & others V/s Bale & others reported in 1999 RN 30 ?"
7. Heard learned counsel for the appellant.
8. Patta is Ex. P/4. The suit was filed on 7/2/2003 and in the cause title, the age of the plaintiff was shown to be 65 years. From Patta (Ex.P/4), it appears that the Patta was granted to plaintiff for a period of five years i.e. from Samvat 2007 to 2012. It is fairly conceded by counsel for appellants that Samvat 2007 would come to year 1950. If Patta (Ex.P/4) is seen, then it appears that it was executed on 19th of October 1951. Therefore, the contention of plaintiff that Patta (Ex.P/4) was executed in the year 1950 = Samvat 2007 is doubtful. Furthermore, as already pointed out, plaintiff has shown his age as 65 years in the plaint. As already pointed out, suit was filed in the year 2003, therefore the plaintiff must have been born sometimes in the year 1938-39. If age of plaintiff is calculated on the basis of the age declared by plaintiff himself in the plaint, then it is clear that in the year 1950, the plaintiff was around 12 years of age. Undisputedly, the plaintiff was minor and Patta (Ex.P/4) shows that the plaintiff was not represented by his guardian or next friend. Furthermore, Patta also contains the signatures of plaintiff which are clear. Whether a boy of 12 years was able to sign or not is a question which has to be adjudicated by this Court after going through the record. From the plaint, it appears that plaintiff had signed the plaint but from the Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 02-12-2025 19:09:36 NEUTRAL CITATION NO. 2025:MPHC-GWL:30982 5 SA-3-2011 deposition sheet, it is clear that the plaintiff had put his thumb impression. Similarly, the affidavit and vakalatnama, which have been filed in this Court, bear the thumb impression of the plaintiff. Thus, it is clear that whenever the plaintiff was required to put his signatures in front of some Authority, then he did not sign but put his thumb impressions. Under these circumstances, whether Patta (Ex.P/4) was really granted by the ex-Zamindar Dalel Singh has also become suspicious. Furthermore, Patta (Ex.P/4) was only for a period of five years i..e from Samvat 2007 to Samvat 2012, which means that the so-called lease which was allegedly executed in favor of plaintiff had come to an end in the year 1955 i.e. Samvat 2012. Plaintiff has filed Khasra of Samvat 2007 (Ex.P/5), Khasra of Samvat 2008 (Ex.P/6), Khasra of Samvat 2009 (Ex.P/7) and Khasra of Samvat 2010 as Ex.P/8. No document subsequent to Samvat 2010 was filed. Non-filing of those documents assumes importance because the so- called Patta (Ex.P/4) was in favor of plaintiff only up Samvat 2012. Furthermore, in the Khasra Panchshala of Samvat 2007 to 2010, who had recorded the name of plaintiff as a person in possession or Upkrishak, has also not been clarified. It is well established principle of law that any revenue entry without any corresponding order by the competent Authority has no sanctity in the eye of law.
9. Appellant has referred to section 38 of Madhya Bharat Zamindari Abolition Act, Samvat 2003 and submitted that every sub-tenant or tenant of a sub-tenant who deposits with Tehsildar within the period specified in subsection 3 and 4, the amount to be paid to the proprietor or tenant or sub-tenant, as case may be, shall be deemed to be a Pacca tenant of the land comprised in his holding.
10. Subsections 3 and 4 of section 38 reads as under:-
"38. Conferral of pacca tenancy right on tenant and sub-tenants.
....... .......... ...............
....... .......... ...............
3. If the holding in the possession of a tenant of a sub-tenant, he may deposit the money within eight years of the date of vesting, otherwise his right of becoming a pacca tenant shall lapse and the sub-tenant may within six months of the expiry of the said eight years deposit in the Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 02-12-2025 19:09:36 NEUTRAL CITATION NO. 2025:MPHC-GWL:30982 6 SA-3-2011 Tahsil, the amount mentioned in clauses (a), (b), (c) and (d) as the case may be, of the preceding sub-section. If he fails to deposit such amount within the said period, the proprietor or the original tenant, as the case may be, shall be deemed to be the pacca tenant of that holding.
4. If the holding be in the possession of a sub-tenant he may deposit the money within eight years of the date of vesting. On the expiry of eight years, the original tenant or the proprietor, as the case may be, shall be deemed to be the pacca tenant of that holding.
....... .......... ..............."
11. There is nothing on record to show that plaintiff had deposited any money within eight years of the date of vesting because in case of failure to do so, the proprietor or original tenant, as the case may be, shall be deemed to be the Pacca tenant of that holding. There is nothing on record to show that plaintiff had ever complied with sub-section 3 and sub-section 4 of section 38.
12. Furthermore, both the Courts below have held that plaintiff has failed to prove that he was in possession on the day when the M.P. Land Revenue Code came into force.
13. So far as the question of adverse possession is concerned, it is well established principle of law that after having set up the claim on the basis of ownership, the plaintiff cannot take an alternative plea of adverse possession. In order to claim adverse possession, the plaintiff has to admit the title of the true owner.
14. 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 Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 02-12-2025 19:09:36 NEUTRAL CITATION NO. 2025:MPHC-GWL:30982 7 SA-3-2011 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 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.
15. 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 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."
Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 02-12-2025 19:09:36NEUTRAL CITATION NO. 2025:MPHC-GWL:30982 8 SA-3-2011
16. 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.
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 Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 02-12-2025 19:09:36 NEUTRAL CITATION NO. 2025:MPHC-GWL:30982 9 SA-3-2011 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. 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 Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 02-12-2025 19:09:36 NEUTRAL CITATION NO. 2025:MPHC-GWL:30982
10 SA-3-2011 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 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 Subba Rao, (2010) 14 SCC 316 : (2012) 1 SCC (Civ) 452] , Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 02-12-2025 19:09:36 NEUTRAL CITATION NO. 2025:MPHC-GWL:30982 11 SA-3-2011 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 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 Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 02-12-2025 19:09:36 NEUTRAL CITATION NO. 2025:MPHC-GWL:30982 12 SA-3-2011 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 4 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 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.
Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 02-12-2025 19:09:36NEUTRAL CITATION NO. 2025:MPHC-GWL:30982 13 SA-3-2011 *** 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) '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) Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 02-12-2025 19:09:36 NEUTRAL CITATION NO. 2025:MPHC-GWL:30982
14 SA-3-2011 '7. ... "An adverse holding is an actual and exclusive appropriation of land commenced and continued under a claim of right, either under an openly avowed claim, or under a constructive claim (arising from the acts and circumstances attending the appropriation), to hold the land against him (sic) who was in possession. (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 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 Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 02-12-2025 19:09:36 NEUTRAL CITATION NO. 2025:MPHC-GWL:30982 15 SA-3-2011 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)"
17. 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:-
"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."
18. It is well established principle of law that this Court in exercise of power under section 100 of CPC cannot interfere with the findings of fact unless and until they are shown to be perverse. Even an erroneous finding of fact cannot be interfered with by this Court while exercising power under section 100 of CPC.
19. The Supreme Court in the case of Angadi Chandranna Vs. Shankar and Others decided on 22/04/2025 in Civil Appeal No.5401/2025 {Arising out of SLP (C) No.6799 of 2022}, has held as under:-
Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 02-12-2025 19:09:36NEUTRAL CITATION NO. 2025:MPHC-GWL:30982 16 SA-3-2011 "12. Before delving into the facts of the case, this court in Jaichand (supra) expressed its anguish at the High Court for not understanding the scope of Section 100 CPC, which limits intervention only to cases where a substantial question of law exists, and clarified that the High Court can go into the findings of facts under Section 103 CPC only under certain circumstances, as stated in the following passages:
"23. We are thoroughly disappointed with the manner in which the High Court framed the so-called substantial question of law. By any stretch of imagination, it cannot be termed even a question of law far from being a substantial question of law. How many times the Apex Court should keep explaining the scope of a second appeal Under Section 100 of the Code of Civil Procedure and how a substantial question of law should be framed? We may once again explain the well-settled principles governing the scope of a second appeal Under Section 100 of the Code of Civil Procedure.
24. In Navaneethammal v. Arjuna Chetty reported in MANU/SC/2077/1996 : 1998: INSC: 349 : AIR 1996 S.C. 3521, it was held by this Court that the High Court should not reappreciate the evidence to reach another possible view in order to set aside the findings of fact arrived at by the first appellate Court.
25. In Kshitish Chandra Purkait v. Santosh Kumar Purkait reported in MANU/SC/0647/1997 : 1997:INSC:487 : (1997) 5 S.C.C. 438), this Court held that in the Second Appeal, the High Court should be satisfied that the case involves a substantial question of law and not mere question of law.
26. In Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor reported in MANU/SC/0058/1999 : 1999 (2) S.C.C. 471, this Court held: Keeping in view the amendment made in 1976, the High Court can exercise its jurisdiction Under Section 100, Code of Civil Procedure only on the basis of substantial questions of law which are to be framed at the time of admission of the Second Appeal and the Second Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 02-12-2025 19:09:36 NEUTRAL CITATION NO. 2025:MPHC-GWL:30982 17 SA-3-2011 Appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. A judgment rendered by the High Court Under Section 100 Code of Civil Procedure without following the aforesaid procedure cannot be sustained.
27. This Court in Kondira Dagadu Kadam v. Savitribai Sopan Gujar reported in MANU/SC/0278/1999 : 1999:INSC:192 : AIR 1999 S.C. 2213 held: The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.
28. It is thus clear that Under Section 100, Code of Civil Procedure, the High Court cannot interfere with the findings of fact arrived at by the first Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence.
29. The High Court in the Second Appeal can interfere with the findings of the trial Court on the ground of failure on the part of the trial as well as the first appellate Court, as the case may be, when such findings are either recorded without proper construction of the documents or failure to follow the decisions of this Court and acted on assumption not supported by evidence. Under Section 103, Code of Civil Procedure, the High Court has got power to determine the issue of fact. The Section lays down: Power of High Court to determine issue of fact: In any Second Appeal, the High Court may, if the evidence on the record is sufficient to determine any issue necessary for the disposal of the appeal,-Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 02-12-2025 19:09:36
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(a) Which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or (b) Which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100.
30. In Bhagwan Sharma v. Bani Ghosh reported in MANU/SC/0094/1993 : AIR 1993 S.C. 398, this Court held:
The High Court was certainly entitled to go into the question as to whether the findings of fact recorded by the first appellate court which was the final court of fact were vitiated in the eye of law on account of non-consideration of admissible evidence of vital nature. But, after setting aside the findings of fact on that ground the Court had either to remand the matter to the first appellate Court for a rehearing of the first appeal and decision in accordance with law after taking into consideration the entire relevant evidence on the records, or in the alternative to decide the case finally in accordance with the provisions of Section 103(b). ...... If in an appropriate case the High Court decides to follow the second course, it must hear the parties fully with reference to the entire evidence on the records relevant to the issue in question and this is possible if only a proper paper book is prepared for hearing of facts and notice is given to the parties. The grounds which may be available in support of a plea that the finding of fact by the court below is vitiated in law does not by itself lead to the further conclusion that a contrary finding has to be finally arrived at on the disputed issue. On a reappraisal of the entire evidence the ultimate conclusion may go in favour of either party and it cannot be prejudged.
31. In the case of Hero Vinoth v. Seshammal reported in MANU/SC/2774/2006 : 2006:INSC:305 : (2006) 5 SCC 545 this Court explained the concept in the following words: It must be tested whether the question is of general public importance or whether it directly and substantially affects the Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 02-12-2025 19:09:36 NEUTRAL CITATION NO. 2025:MPHC-GWL:30982 19 SA-3-2011 rights of the parties. Or whether it is not finally decided, or not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.
32. It is not that the High Courts are not well-versed with the principles governing Section 100 of the Code of Civil Procedure. It is only the casual and callous approach on the part of the courts to apply the correct principles of law to the facts of the case that leads to passing of vulnerable orders like the one on hand."
12.1. In the present case, in our view, the so-called substantial question of law framed by the High Court does not qualify to be a substantial question of law, rather the exercise of the High Court is a venture into the findings of the First Appellant Court by re-appreciation of evidence. It is settled law that the High Court can go into the findings of facts only if the First Appellate Court has failed to look into the law or evidence or considered inadmissible evidence or without evidence. Section 103 permits the High Court to go into the facts only when the courts below have not determined or rendered any finding on a crucial fact, despite evidence already available on record or after deciding the substantial question of law, the facts of a particular case demand re-determination. For the second limb of Section 103 to apply, there must first be a decision on the substantial question of law, to which the facts must be applied, to determine the issue in dispute. When the First Appellate Court in exercise of its jurisdiction has considered the entire evidence and rendered a finding, the High Court cannot re-appreciate the evidence just because another view is possible, when the view taken by the First Appellate Court is plausible and does not suffer from vice in law. When the determination of the High Court is only by way of re- appreciation of the existing evidence, without there being any legal question to be answered, it would be axiomatic that not even a question of law is involved, much less a substantial one. It will be useful to refer Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 02-12-2025 19:09:36 NEUTRAL CITATION NO. 2025:MPHC-GWL:30982 20 SA-3-2011 to another judgment of this Court in Chandrabhan (Deceased) through L.Rs & Ors. v. Saraswati & Ors.11, wherein it was held as follows:
"33. The principles relating to Section 100 of the Code of Civil Procedure relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents and involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iii) The general Rule is that the High Court will not interfere with findings of facts arrived at by the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 02-12-2025 19:09:36 NEUTRAL CITATION NO. 2025:MPHC-GWL:30982
21 SA-3-2011 wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.
34. In this case, it cannot be said that the First Appellate Court acted on no evidence. The Respondents in their Second Appeal before the High Court did not advert to any material evidence that had been ignored by the First Appellate Court. The Respondents also could not show that any wrong inference had been drawn by the First Appellate Court from proved facts by applying the law erroneously.
35. In this case, as observed above, evidence had been adduced on behalf of the Original Plaintiff as well as the Defendants. The First Appellate Court analysed the evidence carefully and in effect found that the Trial Court had erred in its analysis of evidence and given undue importance to discrepancies and inconsistencies, which were not really material, overlooking the time gap of 34 years that had elapsed since the date of the adoption. There was no such infirmity in the reasoning of the First Appellate Court which called for interference.
36. Right of appeal is not automatic. Right of appeal is conferred by statute. When statute confers a limited right of appeal restricted only to cases which involve substantial questions of law, it is not open to this Court to sit in appeal over the factual findings arrived at by the First Appellate Court."
12.2. In the present case, the First Appellate Court analyzed the entire oral evidence adduced by both parties, as well as the documentary evidence relied upon by either side, and dismissed the suit. The authority to re-consider the evidence is available only to the First Appellate Court under Section 96 and not to the High Court in exercise of its authority under Section 100, unless the case falls under the Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 02-12-2025 19:09:36 NEUTRAL CITATION NO. 2025:MPHC-GWL:30982 22 SA-3-2011 exceptional circumstances provided under Section 103. While so, the re- appreciation of the entire evidence, including the contents of the exhibits, reliance on and wrongful identification of a different property and treating the same to be the suit property actually in dispute to prescribe another view without any substantial question of law, only illustrate the callousness of the High Court in applying the settled principles. Therefore, the High Court erred in setting aside the judgment and decree of the First Appellate Court."
20. This Court has also elaborately and independently gone through the record and does not find any perversity in the findings recorded by the Courts below. Accordingly, no substantial question of law arises in the first appeal.
21. Ex consequenti judgment and decree dated 27/9/2010 passed by Additional District Judge, Mungawali, District Ashok Nagar in Civil Appeal No. 14A/2009 and judgment and decree dated 10/9/2009 passed by Civil Judge Class I Mungawali, District Ashok Nagar in Civil Suit No. 22A/2008, are hereby affirmed.
22. Appeal fails and is, hereby, dismissed.
(G. S. AHLUWALIA) JUDGE (and) Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 02-12-2025 19:09:36