Madhya Pradesh High Court
Umkar Singh (Dead)Lrs Brijesh Singh vs State Of M.P. on 20 June, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:12945
1 SA No. 1693 of 2005
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 20th OF JUNE, 2025
SECOND APPEAL No. 1693 of 2005
UMKAR SINGH (DEAD) LRS BRIJESH SINGH AND OTHERS
Versus
STATE OF M.P. AND OTHERS
Appearance:
Shri O.P. Mathur- Advocate for appellants.
Shri Dilip Awasthi - Government Advocate for respondent/State.
JUDGMENT
This Second Appeal, under Section 100 of CPC, has been filed against the judgment and decree dated 16.08.2005 passed by II Additional District Judge, Ashok Nagar (District Guna) in Civil Appeal No.85A/2005 as well as judgment and decree dated 28.04.2005 passed by I Civil Judge Class-II, Ashok Nagar in Civil Suit No.182A/2004 by which the civil suit filed by appellants for declaration of title and permanent injunction has been dismissed.
2. Present appeal has been filed by the plaintiffs who have lost their case from both the courts below. It is the case of appellants that one house admeasuring 35x12 sq. ft. is situated in village Semri Shahbad. The house is approximately 40 years old and was in ownership and possession of original Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 6/28/2025 5:03:58 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:12945 2 SA No. 1693 of 2005 plaintiff Omkar Singh. The Patwari submitted a report against Rajendra Singh who is the son of Omkar Singh, that the house has been constructed over the government land after encroaching upon the same. Accordingly a notice was issued to Rajendra Singh but the summons were not served on him, however, plaintiff Omkar Singh appeared in the case. An order for demolition of house was passed apart from imposition of penalty against Rajendra Singh. The said order was assailed before the Court of SDO who set aside the order passed by Tahsildar. Omkar Singh had obtained a certified copy of the said order but now the same is in a very bad condition and it is not possible to read it out and the record has been destroyed. It was pleaded that although the order of Naib Tahsildar was set aside but for next 20 years no action was taken by the Tahsil Office for removal of encroachment. Thereafter, on 14.06.1997 a notice was served on plaintiffs No. 2 and 3 for removal of encroachment. A reply was filed and it was pleaded that it is an ancestral property which was constructed about 40 years back. Omkar Singh also moved an application for his impleadment by claiming that the house belongs to him. The said application was rejected by the Naib Tahsildar. It was pleaded that plaintiffs No.2 and 3 who are the sons of plaintiff No.1 have no right or title in the house. It was claimed that without impleading plaintiff No.1 as party to the proceedings, the defendants are trying to dispossess plaintiff No.1 and to demolish the house. In case if the house is demolished, then plaintiff No.1 would suffer irreparable loss. It was claimed that the proceedings which have been initiated under Section 248 of M.P. Land Revenue Code are illegal. The house was constructed about 40 years back. Notice under Section 80 CPC was issued and accordingly, a suit was filed for declaration of title and permanent injunction.
Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 6/28/2025 5:03:58 PMNEUTRAL CITATION NO. 2025:MPHC-GWL:12945 3 SA No. 1693 of 2005
3. During the pendency of suit, plaintiff No.1-Omkar Singh died and accordingly his name was deleted.
4. The defendants filed the written statement denying that the house in question was constructed about 40 years back. It was claimed that when Rajendra Singh made an attempt to construct a house after encroaching upon the government land, then legal action was taken by Tahsildar. The order of Naib Tahsildar was never set aside and appeal was not allowed. Plaintiffs No.2 and 3 who are the real brothers are trying to encroach upon the government land and are trying to construct a house. Accordingly, a report was made to Naib Tahsildar who carried out the spot inspection and passed an order of eviction and also imposed a penalty. The land in question is recorded as government land being a garden. The order passed by Naib Tahsildar was challenged by plaintiffs before the court of SDO which was dismissed. Plaintiffs had given in writing that they would voluntarily remove their encroachment and accordingly the plaint pleadings were denied.
5. In nutshell, the case of appellants was that they have perfected their title by way of adverse possession.
6. The Trial Court after framing issues and recording evidence dismissed the suit.
7. Being aggrieved by the judgment and decree passed by the Trial Court, appellants preferred an appeal which too has been dismissed, by the impugned judgment and decree passed by the Appellate Court.
8. Challenging the judgment and decree passed by the courts below, it is submitted by counsel for appellants that the courts below have failed to see that the appellants have perfected their title by way of adverse possession and proposed the following substantial questions of law:
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9. Heard learned counsel for the parties.
10. Before considering the pleadings and evidence led by the parties, this Court would like to consider the law governing the principle of adverse possession.
11. 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) Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 6/28/2025 5:03:58 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:12945 5 SA No. 1693 of 2005 "4. ... But it is well-settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non-
possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co- heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster."
The Court further observed thus : (P. Lakshmi Reddy case [AIR 1957 SC 314] , AIR p. 318, para
4) "4. ... the burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession."
16. In S.M. Karim v. Bibi Sakina [AIR 1964 SC 1254], Hidayatullah, J. speaking for the Court observed as under : (AIR p. 1256, para 5) "5. ... Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 6/28/2025 5:03:58 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:12945 6 SA No. 1693 of 2005 becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for 'several 12 years' or that the plaintiff had acquired 'an absolute title' was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea."
17. The facts of R. Chandevarappa v. State of Karnataka [(1995) 6 SCC 309] are similar to the case at hand. In this case, this Court observed as under : (SCC p. 314, para 11) "11. The question then is whether the appellant has perfected his title by adverse possession. It is seen that a contention was raised before the Assistant Commissioner that the appellant having remained in possession from 1968, he perfected his title by adverse possession. But the crucial facts to constitute adverse possession have not been pleaded. Admittedly the appellant came into possession by a derivative title from the original grantee. It is seen that the original grantee has no right to alienate the land. Therefore, having come into possession under colour of title from original grantee, if the appellant intends to plead adverse possession as against the State, he must disclaim his title and plead his hostile claim to the knowledge of the State and that the State had not taken any action thereon within the prescribed period. Thereby, the Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 6/28/2025 5:03:58 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:12945 7 SA No. 1693 of 2005 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 Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 6/28/2025 5:03:58 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:12945 8 SA No. 1693 of 2005 been raised in the written statement or not which can also be gathered from the cumulative effect of the averments made therein."
20. In Karnataka Board of Wakf v. Govt. of India [(2004) 10 SCC 779] at para 11, this Court observed as under : (SCC p. 785) "11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well- settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the 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 Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 6/28/2025 5:03:58 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:12945 9 SA No. 1693 of 2005 long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."
21. In Saroop Singh v. Banto [(2005) 8 SCC 330] this Court observed : (SCC p. 340, paras 29-
30) "29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak [(2004) 3 SCC 376] .)
30. 'Animus possidendi' is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states 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 Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 6/28/2025 5:03:58 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:12945 10 SA No. 1693 of 2005 under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession."
23. This Court had an occasion to examine the concept of adverse possession in T. Anjanappa v. Somalingappa [(2006) 7 SCC 570]. The Court observed that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his title was hostile to the real owner and amounted to denial of his title to the property claimed. The Court further observed that : (SCC p. 577, para 20) "20. ... The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."
24. In a relatively recent case in P.T. Munichikkanna Reddy v. Revamma [(2007) 6 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) Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 6/28/2025 5:03:58 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:12945 11 SA No. 1693 of 2005 "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 Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 6/28/2025 5:03:58 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:12945 12 SA No. 1693 of 2005 the statute under claim of right or colour of title. (See American Jurisprudence, Vol. 3, 2d, p.
81.) It is important to keep in mind while studying the American notion of adverse possession, especially in the backdrop of limitation statutes, that the intention to dispossess cannot be given a complete go-by. Simple application of limitation shall not be enough by itself for the success of an adverse possession claim."
12. 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]."Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 6/28/2025 5:03:58 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:12945 13 SA No. 1693 of 2005
13. The Supreme Court in the case of A. Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam represented by its President and others reported in (2012) 6 SCC 430 has held as under:
"43.6. The watchman, caretaker or a servant employed to look after the property can never acquire interest in the property irrespective of his long possession. The watchman, caretaker or a servant is under an obligation to hand over the possession forthwith on demand. According to the principles of justice, equity and good conscience, the courts are not justified in protecting the possession of a watchman, caretaker or servant who was only allowed to live into the premises to look after the same. 43.7. The watchman, caretaker or agent holds the property of the principal only on behalf of the principal. He acquires no right or interest whatsoever in such property irrespective of his long stay or possession."
14. It is the case of plaintiffs themselves that revenue proceedings had been initiated against them and earlier also penalty was imposed and a direction was given to demolish the house. Long possession by itself would not result into perfection of title by way of adverse possession. It is the case of plaintiffs themselves that the revenue authorities are repeatedly taking action against appellants on account of encroachment on the government land. Therefore, it cannot be said that even if appellants are in possession of the property in dispute, then the same is open and hostile to the knowledge of the State. The State has to dispossess an encroacher in accordance with law and for that Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 6/28/2025 5:03:58 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:12945 14 SA No. 1693 of 2005 purpose has to initiate proceedings under Section 248 of M.P. Land Revenue Code. The said proceedings were initiated which also culminated into an order of eviction. In fact, by filing the Civil Suit, appellants had challenged the order of eviction. Under these circumstances, it cannot be said that the possession of appellants is open and hostile even to the knowledge of the true owner.
15. Under these circumstances, this Court is of considered opinion that the plaintiffs have failed to prove that they have perfected their title by way of adverse possession.
16. As no substantial question of law arises in the present appeal, accordingly, judgment and decree dated 16.08.2005 passed by II Additional District Judge, Ashok Nagar (District Guna) in Civil Appeal No.85A/2005 as well as judgment and decree dated 28.04.2005 passed by I Civil Judge Class-II, Ashok Nagar in Civil Suit No.182A/2004 are hereby affirmed.
17. Ex. Consequenti, appeal fails and is hereby dismissed.
(G. S. AHLUWALIA) JUDGE pd Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 6/28/2025 5:03:58 PM