Madhya Pradesh High Court
Bhanwarlal vs Dheeraj Singh on 7 April, 2026
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2026:MPHC
2026:MPHC-GWL:11618
F.A. No.82/2012
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 7th OF APRIL, 2026
FIRST APPEAL No. 82 of 2012
BHANWARLAL
Versus
DHEERAJ SINGH AND OTHERS
Appearance:
Shri N.K. Gupta - Senior Advocate with Shri Saket Sharma - Advocate for appellant.
Shri Prashant Sharma and Shri Upendra Yadav - Advocates for respondent No.1.
Shri Anmol Khedkar - Advocate for respondent No.2.
Shri C.P. Singh - Government Advocate for respondent No.3/State.
JUDGMENT
1. This first appeal under Section 96 of Civil Procedure Code has been filed against the judgment and decree dated 22.02.2012 passed by First Additional District Judge Guna in Civil Suit No. 7A/2010 and 4A/2011.
2. The question of maintainability of one First appeal against a common judgment and decree passed in two Civil Suits shall also be considered at a later stage.
Civil suit No. 7-A/2011 A/2011
3. The facts of Civil Suit No. 7A /2011 are as under :
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(a) The respondent no. 1 Dheeraj Singh filed suit for specific performance of contract, stating inter alia that he is the resident of village illage Singhadi. Earlier the defendant no. 1 was also the resident of Singhadi and was an agriculturalist, but now he is residing in SADA, Raghogarh. The State of Madhya Pradesh has also been made a party, but no relief is being claimed against it. The defendant def no. 1 was the owner and in possession of Survey No. 231, Area rea 2.059 hectares situated in Village Singhadi, Tehsil and District Guna. The defendant no.1 was in need of money for meeting out the expenses of marriage of his son as well as for purchasing g a house. Therefore, he entered into an agreement to sell the Survey No. 231 Area 2.059 hectares for a consideration amount of ₹ 4,12,000/-. This agreement to sell was executed on 19.12.2007 and the defendant no. 1 received an amount of ₹ 97,000 97,000/- in cash by way of advance. The defendant no. 1 got the agreement to sale notarized and also got the thumb impression of his wife as a consentor. It was agreed upon that the defendant no. 1 would execute the sale deed by 10.02.2008 after receiving the remaining ou outstanding tstanding amount of ₹ 3,15,000. Thereafter, the plaintiff requested the defendant no. 1 to execute the sale deed, but every time, the defendant no. 1 avoided to execute the sale deed. In paragraph 6 of the plaint it was specifically pleaded that on multiple multipl occasions the plaintiff had requested the defendant no. 1 to execute the sale deed because the deadline was approaching very fast and it was requested that the defendant no. 1 should receive the remaining consideration amount of ₹ 3,15,000/- and should also lso hand over the possession of the land to the plaintiff, but the defendant no. 1 was all the time avoiding to execute the sale deed and was deliberately not executing the sale, w whereas hereas the plaintiff was and is still ready and willing to perform his part of contract. Plaintiff had also got a public notice published in a Hindi newspaper on 11.01.2008, pointing out that on 19.12.2007, the defendant Signature Not Verified Signed by: AMAN TIWARI Signing time: 09-04-2026 05:35:49 PM NEUTRAL CITATION NO. 2026:MPHC 2026:MPHC-GWL:11618 F.A. No.82/2012 3 no. 1 has already executed an agreement to sell in favour of plaintiff and therefore no one should purchase the said property. A registered notice was also given to the defendant no. 1 on 14.01.20 14.01.2008, 8, but the defendant no. 1 managed to return the said registered notice. Accordingly another notice dated 28.01.2008 was sent, but the same was also returned back with an endorsement that the defendant no. 1 is not residing at the given address. It was claimed that the defendant no. 1 wants to alienate the property to Bhan Bhanwarlal/appellant arlal/appellant and Gopal Singh. Accordingly a registered notice was also given by plaintiff to them on
04.02.2008 and they were requested not to purchase the land as an agreement to sell has already been executed in favour of the plaintiff. Thus it was claimed that the defendant no. 1 is deliberately avoiding the execution of sale deed and wants to grab the money of the plaintiff, whereas the plaintiff is ready and willing to perform his part of contract. Accordingly the suit was filed for specific performance of contract.
(b) The defendant no. 1/Sirnam 1/S rnam Singh and defendant no. 3 Bhanwarlal/Appellant Bhan filed a joint written statement. It was pleaded that for the last 20 years, the land is being cultivated by Dheeraj Singh and therefore there was no question of selling the land to the plaintiff. The defendant no. 1/S 1/Sirnam rnam Singh never entered into an agreement to sell and never received an amount of ₹ 97,000/- by way of advance. It was claimed that on 20.05.1988 when defendant no. 1/Sirnam 1/S rnam Singh shifted to village illage Jaganpur, then S Sirnam rnam Singh after receiving a consideration amount of ₹ 1,00,000 from the defendant no. 3, Bhanwarlal/Appellant, arlal/Appellant, verbally sold the land to Bhanwarlal arlal and possession of the same was also given. Accordingly, it was claimed that defendant no. 1/Sirnam 1/S rnam Singh would execute the sale deed in favour of appellant/defendant no. 3/Bhan 3/Bhanwarlal. In thee month of May, 1990, the defendant no. 1 Sirnam Singh came to Singhadi and requested the defendant no.
Signature Not Verified Signed by: AMAN TIWARI Signing time: 09-04-2026 05:35:49 PMNEUTRAL CITATION NO. 2026:MPHC 2026:MPHC-GWL:11618 F.A. No.82/2012 4 3/appellant/Bhanwarlal arlal to remove his possession from the property in dispute, but the defendant no. 3 Bhanwarlal/appellant arlal/appellant refused to remove his possession.
possess Accordingly, the defendant no. 1, S Sirnam rnam Singh also tried to forcibly take possession of the property in dispute. As a result, quarrel also took place between them. However, defendant no. 1/S 1/Sirnam rnam Singh was made to run away by defendant no. 3, Bhan Bhanwarlal/Appellant lal/Appellant and since then the defendant no. 3 Bhanwarlal/appellant arlal/appellant is in possession of the property in dispute in the capacity of the owner and Bhanw warlal is cultivating the land. Bhanwarlal arlal had also made an application to the Tehsildar for recording hi hiss possession over the property in dispute and the said application was also allowed. It was further claimed that the plaintiff Dheeraj Singh in the name of preparing the Kisan card had taken the photographs of the defendant no. 1./S
1./Sirnam rnam Singh and his wife and also obtained their signatures on some blank papers and on the basis of those blank signed papers, the plaintiff has prepared a concocted and forged agreement to sell.
(c) Thus the he appellant/Bhan appellant/Bhanwarlal and defendant no.1/Sirnam rnam Singh by filing a jointt written statement claimed that defendant no. 1/Sirnam 1/S rnam Singh had verbally sold the property in dispute to Bhan Bhanwarlal arlal for a consideration amount of ₹ 1,00,000/- and the agreement to sell was never executed by defendant no. 1/Sirnam rnam Singh and in fact the plaintiff had obtained the signatures of defendant no. 1 Sirnam rnam Singh and his wife on the blank papers on the pretext of preparing Kissan Card.
(d) This Civil Suit was filed on 14 14-2-2008.
Civil Suit No. 4-A/2011 A/2011
4. The facts of Civil Suit No No. 4-A/2011 are as under :
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(a) Bhanwarlal, arlal, who is the defendant no. 3 in Civil Suit No. 7A/2011, filed suit for declaration of title and permit injunction on the ground that on 20.05.1988, Sirnam Singh had verbally sold the Survey No. 231, Area 2.059 hectares situated sit in village illage Singhadi, Tehsil and District Guna after receiving a consideration amount of ₹ 1,00,000 1,00,000/-.. It was specifically pleaded that no sale deed has been executed by Sirnam rnam Singh in favour of Bhanwarlal.
Bhan arlal. However, it was claimed that possession of the Property was also given to the appellant. It was also assured that Sirnam rnam Singh would execute the sale deed as per his convenience. In the month of May, 1990,, the defendant no. 1 Sirnam S rnam Singh again tried to take back the possession of the property in ddispute, ispute, but the plaintiff/Bhan plaintiff/Bhanwarlal did not remove his possession. An attempt was also made by S Sirnam rnam Singh to forcibly take possession of the property in dispute dispute, but Sirnam rnam Singh was made to run away by Bhanwarlal.
arlal. S Sirnam rnam Singh went away by extending a threat that he would obtain a possession through Court.
ourt. However, no action was taken by Sirnam Singh for restoration of possession. For the last 10 years, Bhan Bhanwarlal is cultivating the land. Thus it was claimed that since Sirnam Singh has verbally sold the property in dispute to Bhanwarlal Bhan on 20-5-1988, 1988, therefore, therefore he is the owner. In the alternative, it was also prayed that otherwise also he has perfected his title by way of adverse possession. It was further claimed that on 28.02.2008, Bhanwarlal arlal came to kknow that Sirnam rnam Singh is intending to alienate the property to other persons. It was claimed that Bhan Bhanwarlal arlal has already perfected his title by way of adverse possession, possession accordingly suit was filed for declaration that Bhanwarlal arlal has perfected his title by way of adverse possession. It appears that Dheeraj Singh who has filed Civil Suit No. 7-A/2010 7 A/2010 moved an application for impleading himself as defendant on the ground that an agreement to sell has been executed by Sirnam Singh and said application was allo allowed wed by trial Court by Signature Not Verified Signed by: AMAN TIWARI Signing time: 09-04-2026 05:35:49 PM NEUTRAL CITATION NO. 2026:MPHC 2026:MPHC-GWL:11618 F.A. No.82/2012 6 Order dated 3.11.2008. It was claimed that neither Dheeraj Singh is the owner of the property in dispute nor he is in possession. It was claimed by Bhan Bhanwarlal that he has not sought any relief against Dheeraj Singh, but merely in the light of order passed by the trial Court, Dheeraj Singh is being impleaded as defendant no. 3. The suit by Bhavarlal Bhava was filed on 03.03.2008.
(b) Dheeraj Singh filed his written statement and took the same defence that he has entered into an agreement tto o purchase the disputed property from Sirnam Singh after making payment of Rs. 97,000/ 97,000/- by way of advance and all other plaint averments were denied. Thus, the defence of Dheeraj Singh was the same which he had taken in his plaint in Civil Suit No. 77-A/2010.
(c) Initially Sirnam rnam Singh entered his appearance through his Counsel but lateron, he was proceeded exparte. Although Sirnam S rnam Singh appeared as a witness for Bhanwarlal arlal but he never prayed for setting aside exparte proceedings against him.
(d) Dheeraj Singh ingh filed an application under Section 10 of CPC for stay of suit but the said application was dismissed.
(e) Bhanwarlal arlal examined himself as P.W.1, Nathan Singh (P.W.2), Jumman Khan (P.W.3), Heeralal (P.W.4), Sirnam Singh/Defendant no.1 (P.W.5).
(f) By order dated 27 27-1-2011, 2011, this suit was consolidated with Civil Suit No. 77- A/2010.
5. The Trial Court after framing issues and recording evidence, decreed the Civil Suit No. 7-A/2010 A/2010 filed by Dheeraj Singh and dismissed the Civil Suit No. 44- A/2011 filed by appellant ppellant Bhanwarlal.
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6. Being aggrieved by Judgment and decree passed by the Trial Court in C.S. No. 7-A/2010 and 4-A/2011, A/2011, the appellant has filed this composite appeal.
7. I.A. No. 16317 of 2017 was filed by respondent no.1 Dheeraj Singh for dismissal of appeal on the ground that a single appeal filed against judgment and decrees passed in two civil suits is not maintainable.
8. I.A. No. 2812 of 2026 has been filed by the appellant Bhan Bhanwarlal that by mistake Single appeal has been filed against the common judgment passed in two different suits, and by mistake, the Court Fee in respect of Civil Suit No. 77- A/2010 could not be paid, therefore, the appellant is ready and willing to pay an additional itional set of Court fee.
9. Considered the question of maintainability of single appeal against a common judgment and decree passed in two suits which were consolidated.
10. The appellant did not file any application seeking permission to file one appeal against common judgment and decree passed in two civil suits. Objection with regard to the maintainability of single appeal was already taken in the year 2017, but no steps were taken by the appella appellant nt to file a separate appeal.
11. The Supreme Court in the case of M/s Ramnath Exports Pvt. Ltd. Vs. Vinita Mehta and another decided on 5-7-2022 in C.A. No. 4639/22 has held as under :
10. The contention of the appellant with vehe vehemence mence is that the application CLMA seeking permission to file joint appeal against common judgment and two decrees has not been decided by the impugned order, though at the time of admitting the appeal and issuing notice, objections were called. In the cou counter-affidavit affidavit filed by the Signature Not Verified Signed by: AMAN TIWARI Signing time: 09-04-2026 05:35:49 PM NEUTRAL CITATION NO. 2026:MPHC 2026:MPHC-GWL:11618 F.A. No.82/2012 8 respondent even before this Court, the said fact has not been contested or refuted. In the order, it has also not been mentioned that dismissal of the appeal would lead to decide all pending applications including CLMA. As per record, record, it is clear that the High Court admitted the appeal on 18.07.2008 and CLMA was awaiting its fate for almost about a decade. By the impugned order passed on 04.07.2018, first appeal was dismissed accepting the preliminary objection regarding maintainability nability applying the principle of res-judicata.
res judicata. There is not even any without observation that permission as sought to file one appeal cannot be granted. The record indicates that the CLMA filed by the appellant seeking permission to file one appeal was nnot ot decided. It is to observe, once at the time of admission of first appeal, despite having objection of maintainability it was admitted asking reply and rejoinder on CLMA, the High Court ought to have decided the said application.
Thus, prior to deciding the preliminary objection, the High Court should have decided the said CLMA, either granting leave to file a single appeal or refusing to entertain one appeal against one judgment and two decrees passed in two suits after consolidation. In case, the High Court would have rejected the said CLMA, the appellant could have availed the opportunity to file separate appeal against the judgment and decree passed in Civil Suit No.411 of 1989. Without deciding the CLMA and accepting the preliminary objections, dismissing ssing the appeal as barred by res-judicata, res judicata, primarily appears contrary to the spirit of its own order dated 18.07.2008. In our considered view also, the approach adopted by High Court is not correct, because on dismissal of the CLMA, the appellant might ha have had the opportunity to rectify the defect by way of filing separate appeal under Section 96 of CPC challenging the same judgment with separate decree passed in Civil Suit No.411 of 1989. Converse to it, if this Court proceeds to consider the merit of th thee contentions raised in the said CLMA and record the findings in negative, it would effectively render the appellant remediless, therefore, we refrain ourselves from examining the merits of CLMA. It is a trite law that the procedural defect may fall within the purview of irregularity and capable of being cured, but it should not be allowed to defeat the substantive right accrued to the litigant without affording reasonable opportunity. Therefore, in our considered view, non non-adjudication adjudication of the CLMA application, ion, and upholding the preliminary objection of non- non Signature Not Verified Signed by: AMAN TIWARI Signing time: 09-04-2026 05:35:49 PM NEUTRAL CITATION NO. 2026:MPHC 2026:MPHC-GWL:11618 F.A. No.82/2012 9 maintainability of one appeal by High Court has caused serious prejudice to the appellant.
12. This Court is of considered opinion, that the appellant cannot get an advantage of the aforesaid judgment, be because cause in that case, an application was already pending seeking permission to file single appeal and that application was not decided for decades together. However, at the cost of repetition, it is once again clarified that inspite of objection raised by respondent respondent no.1 in the year 2017 by filing I.A. No. 16317 of 2017, no steps were taken by the appellant to rectify his decision of not filing separate appeal. Furthermore, he has also admitted that one single appeal against a common Judgment and Decree passed pas in two different suits is not maintainable, therefore, no useful purpose would be served by extending time to pay Court Fee in respect of Civil Suit No. 77-A/2010. Therefore, this appeal filed against the Judgment and Decree passed by the Trial Court in Civil Suit No. 7-A/2010 7 is hereby Dismissed.
13. Thus, it is made clear that now this Court would consider the case of appellant Bhanwarlal arlal in respect of his Civil Suit No. 44-A/2011.
A/2011.
14. It is the case of the appellant that on 20-5-1988, Sirnam Singh/Defenant Singh/ no.1 orally sold the land in dispute to him and also handed over possession of the same. In the month of May 1990, Sirnam Singh tried to dispossess him but could not succeed, therefore, it was claimed that from the year 1990, the appellant Bhanwarlal lal is in possession of property in dispute being the owner of the same.
15. The following are the two points of deter determination :
(a) Whether land can be sold orally after accepting consideration amount of Rs.
1,00,000/-?
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(b) Whether the appellant Bhan Bhanwarlal arlal has perfected his title by way of adverse possession qua Sirnam rnam Singh?
Singh
(a) Whether land can be sold orally after accepting consideration amount of Rs. 1,00,000/-?
16. Section 54 of Transfer of Property Act reads as under :
"54.
54. "Sale" defined.
defined.--"Sale"
le" is a transfer of ownership in exchange for a price paid or promised or part part-paid and part-promised.
Sale how made.-- --Such Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery ry of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Contract for sale.
sale.--A A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property."
property.
17. Thus, it is clear that where the value of the property is more than Rs. 100/-, 100/ then it cannot be sold except by registered ssale ale deed. Therefore, it is held that no title or right would stand transferred to Bhan Bhanwarlal arlal by virtue of oral transaction of sale.
(b) Whether the appellant Bhan Bhanwarlal arlal has perfected his title by way of adverse possession ?
18. It is the case of the appellant Bhanwarlal that on 20-5-1988, 1988, Sirnam Singh sold the land orally to him for a consideration of Rs. 1,00,000/-
1,00,000/ and possession was also given. Thus, it is clear that appellant Bhan Bhanwarlal arlal was placed in permissive possession.
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19. Before proceeding ffurther, urther, this Court would like to consider the law relating to Adverse 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, h, the High Court erred fundamentally in observing in para 7 that, "it it was not necessary for him (defendant) to first admit the ownership of the plaintiff before raising such a plea".
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 ri rights ghts 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 owne 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 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 ledge 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 Signature Not Verified Signed by: AMAN TIWARI Signing time: 09-04-2026 05:35:49 PM NEUTRAL CITATION NO. 2026:MPHC 2026:MPHC-GWL:11618 F.A. No.82/2012 12 ground, he was not entitled to claim the title by adverse possession against the plaintiff.
21. The Supremee 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 therefo therefore, re, 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 poss ession as well as of denying the possession Signature Not Verified Signed by: AMAN TIWARI Signing time: 09-04-2026 05:35:49 PM NEUTRAL CITATION NO. 2026:MPHC 2026:MPHC-GWL:11618 F.A. No.82/2012 13 title of the true owner does not arise. The Court held as under: (SCC pp.
574-75, 75, paras 1212-14) "12.. The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial nial 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 musmustt 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 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 enj 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
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 co owner can be referred to his status as co co-owner, owner, it cannot be considered adverse to other co 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
ad possession:
'14
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 his title on adverse possession must Signature Not Verified Signed by: AMAN TIWARI Signing time: 09-04-2026 05:35:49 PM NEUTRAL CITATION NO. 2026:MPHC 2026:MPHC-GWL:11618 F.A. No.82/2012 14 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 po 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 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 Annasaheb Bapusaheb P Patil v. Balwant,, (1995) 2 SCC 543] , SCC p. 554, paras 14 14-15.)'"
12. In Kurella Naga Druva Vudaya Bhaskara Rao [Kurella 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 "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 it 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 Signature Not Verified Signed by: AMAN TIWARI Signing time: 09-04-2026 05:35:49 PM NEUTRAL CITATION NO. 2026:MPHC 2026:MPHC-GWL:11618 F.A. No.82/2012 15 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 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 ourt and the High Court also held [Kurella [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 posse possession."
13. In Brijesh Kumar v. Shardabai [Brijesh 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 wh 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.
wner. The respondent-plaintiff 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] , on adverse possession obser observing ving as follows: (SCC p. 322, para 15) '15
15. Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does Signature Not Verified Signed by: AMAN TIWARI Signing time: 09-04-2026 05:35:49 PM NEUTRAL CITATION NO. 2026:MPHC 2026:MPHC-GWL:11618 F.A. No.82/2012 16 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 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 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 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 ccolour 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 fro 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."
Signature Not Verified Signed by: AMAN TIWARI Signing time: 09-04-2026 05:35:49 PMNEUTRAL CITATION NO. 2026:MPHC 2026:MPHC-GWL:11618 F.A. No.82/2012 17
15. The matter has been examined by a Constitution Bench in M. Siddiq (Ram Janmabhumi Temple Temple-5 J.) v. Suresh Das [M. M. Siddiq (Ram Janmabhumi Temple 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. 703 703-706, 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 w would ould 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 whichwhich 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 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( 11(a
a), it becomes evident that beyond stating that the Muslims have been in long, exclusive and continuous possession beginning 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 Signature Not Verified Signed by: AMAN TIWARI Signing time: 09-04-2026 05:35:49 PM NEUTRAL CITATION NO. 2026:MPHC 2026:MPHC-GWL:11618 F.A. No.82/2012 18 the rights of the true owner and the law is nnot ot 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 three-Judge Judge Bench of this Court noted that the concept of possession is "polymorphous" embodying both a rig right ht (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 cause 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. spea Judge Bench of speaking for a three-Judge this Court dwelt on the "classical requirement" of adverse possession: (AIR pp. 317-18, 317 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.
Secy. of State for India in Council v. Debendra Lal Khan, Khan 1933 SCC OnLine PC 65 : (1933-34)34) 61 IA 78] IA at p. 82.) Signature Not Verified Signed by: AMAN TIWARI Signing time: 09-04-2026 05:35:49 PM NEUTRAL CITATION NO. 2026:MPHC 2026:MPHC-GWL:11618 F.A. No.82/2012 19 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 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.
ssession. (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 obtai actual possession with the requisite animus.' 1149. In Karnataka Board of Wakf v. Union of India [Karnataka Karnataka Board of Wakf v. Union of India, (2004) 10 SCC 779] , S. Rajendra Babu, J. speaking for a two 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 Signature Not Verified Signed by: AMAN TIWARI Signing time: 09-04-2026 05:35:49 PM NEUTRAL CITATION NO. 2026:MPHC 2026:MPHC-GWL:11618 F.A. No.82/2012 20 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 ong his possession has continued, and (e) his possession was open and undisturbed 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 la 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. Thus, it is clear that while setting up a ground of adverse possession, the title of the opposite party has to be accepted. Permissive Possession will never turn into an Adverse Possession.
24. If the facts of the case are considered, then it is clear that it is the case of the appellant Bhanwarlal arlal that on 20 20-5-1988, 1988, Sirnam Singh had orally sold the land in dispute to him for a consideration of Rs. 1 lac and also handed over the possession. Thus from 1988, Bhanwarlal Bhan arlal was in permissive possession. Although it is the contention of the appellant that in the month of May 1990, Sirnam Singh made an attempt to dispossess him, but could not succeed, but that would not mean that the possession of the appellant thereafter, became hostile to the title of Sirnam Singh. It is not the case of app appellant Bhanwarlal arlal that Sirnam Singh ever refunded Rs 1 lac and withdrew his permission from Bhanwarlal Bhan to retain Signature Not Verified Signed by: AMAN TIWARI Signing time: 09-04-2026 05:35:49 PM NEUTRAL CITATION NO. 2026:MPHC 2026:MPHC-GWL:11618 F.A. No.82/2012 21 permission. The appellant Bhanwarlal Bhan arlal never admitted that from 1990 onwards, he ever treated Sirnam Singh as owner. On the contrary, it was spe specifically pleaded by Bhanwarlal arlal in his plaint that from 1990 he is in possession being the owner. The principal of Adverse Possession would come into force only after 12 years from the date when the possession become hostile. Since, Bhan Bhanwarlal always treated ted himself to the owner by virtue of oral sale transaction, therefore, it is clear that his possession was permissive. Further more, the appellant Bhanwarlal arlal has stated in his plaint that he is in possession for the last 10 years therefore, he had perfect perfected ed his title by way of adverse possession. Article 65 of Limitation Act would not come into picture in 10 years.
25. Thus, it is clear that the appellant Bhan Bhanwarlal arlal has failed to prove that he had ever perfected his title by adverse possession.
26. No other ther argument was advanced by the Counsel for the appellant.
27. Cross Objection has been filed by the respondent no. 1 Dheeraj Singh claiming the litigation expenses of Rs. 69,349 69,349/-,, in contesting his suit for specific performance of contract. No Court fee ee has been paid on cross cross-objection.
Accordingly, the cross objection is dismissed.
28. Ex consequenti,, the Judgment and Decree dated 22.02.2012 passed by First Additional dditional District Judge Guna in Civil Suit No. 4A/2011 is hereby Affirmed.
29. Appeal fails and is hereby dismissed.
(G. S. AHLUWALIA) JUDGE Aman Signature Not Verified Signed by: AMAN TIWARI Signing time: 09-04-2026 05:35:49 PM