Chattisgarh High Court
Bhikham Sao vs A Paancheri Devi 44 Cra/1285/2015 ... on 20 February, 2020
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No.484 of 2006
Judgment reserved on: 22-1-2020
Judgment delivered on: 20-2-2020
Bhikham Sao, S/o Ramkishun, (Original Plaintiff - Died) His Legal
Representatives are as follows.
1. Smt. Chameli Devi, W/o Late Bhikham Sav, aged about 60 years.
2. Shobhnath Gupta, S/o Late Bhikham Sav, aged about 42 years.
3. Prakashchand Gupta, S/o Late Bhikham Sav, aged about 32 years.
Sl.No. 1, 2 and 3 all R/o Village Pindra, Thana Balrampur, Tahsil Pal,
District Surguja (C.G.).
4. Rajwanti, D/o Late Bhikham Sav and W/o Jahender Prasad Gupta,
aged about 40 years, R/o Village Basen, Post Basen, Thana Rajpur,
District Surguja (C.G.).
5. Sukanti @ Gudhuluwa, D/o Late Bhikham Sav, and W/o Balkishun
Gupta, aged about 37 years, R/o Balrampur, District Surguja (C.G.).
6. Chandrawati @ Delwa, D/o Late Bhikham Sav and W/o Vijay Gupta,
aged about 35 years, R/o Village Hariharganj, Thana Post
Hariharganj, District Palamu, Jharkhand
(Respondents)
---- Appellants
Versus
1. (a) Paancheri Devi, W/o Late Rangnath (Died)
2. (b) Ramesh, S/o Rangnath Singh (Died)
Note: Both were legal heirs of original Defendant Rangnath Singh and
after his death (No.1 and 2) brought on record and also after their
death the LRs of Ramesh brought on record.
2.(Ka) Smt. Chandrawati Singh, Wd/o Late Ramesh Singh, aged 42
years, by Caste Rajput, Occupation Housewife,
2.(Kha) Sanket Singh, S/o Late Ramesh Singh, aged 28 years, by
Caste Rajput, Occupation Service.
2
2.(Ga) Abhishek Singh, S/o Late Ramesh Singh, aged about 23 years,
by Caste Rajput, Occupation Student.
2.(Gha) Abhijit Singh, S/o Late Ramesh Singh, aged 17 years, by
Caste Rajput, Occupation Student, through natural guardian mother.
All R/o Village Seoni, Thana Balrampur, Tahsil Pal, District Surguja
(C.G.).
(c) Umesh (Dead) Through Legal Representatives
2C-A. Chinta Singh, W/o Late Umesh Singh, aged 55 years,
2C-B. Rakesh Singh, S/o Late Umesh Singh, aged 30 years,
2C-C. Ritesh Singh, S/o Late Umesh Singh, aged 25 years,
All are R/o Balrampur, P.S. Tahsil and Post Balrampur, District
Balrampur-Ramanujganj (C.G.)
2. Mudrika Choube (Dead) Through Legal Representatives
2A. Sidhnath Choubey, S/o Mudrika Choubey, aged 55 years,
2B. Ramesh Choubey, S/o Mudrika Choubey, aged 50 years,
2C. Love Choubey, S/o Mudrika Choubey, aged 48 years,
2D. Kush Choubey, S/o Mudrika Choubey, aged 45 years,
All are R/o Balrampur, P.S. Tahsil and Post Balrampur, District
Balrampur-Ramanujganj (C.G.)
3. State of Chhattisgarh, through Collector, Surguja (C.G.)
(Appellants)
---- Respondents
--------------------------------------------------------------------------------------------------------
For Appellants: Mr. Sunil Tripathi and Ms. Versha Sharma, Advocates. For Respondents No.2(Ka) to (Gha), 2C-A to 2C-C and 2A to 2D: -
Mr. Ravish Chand Agrawal, Senior Advocate with Mr. Manoj Paranjpe and Mr. Anurag Singh, Advocates. For Respondent No.3 / State: -
Mr. Ravi Kumar Bhagat, Deputy Government Advocate.
--------------------------------------------------------------------------------------------------------
Hon'ble Shri Justice Sanjay K. Agrawal C.A.V. Judgment 3
1. This second appeal preferred under Section 100 of the CPC by the LRs of the original plaintiff / appellants herein was admitted for hearing by formulating the following substantial question of law: -
"Whether the learned First Appellate Court was justified in reversing the judgment and decree passed by the Trial Court holding defendants have perfected their title by way of adverse possession?"
[For the sake of convenience, parties hereinafter will be referred as per their status and ranking given in the plaint before the trial Court.]
2. Original plaintiff Bhikham Sao instituted a suit for possession and mesne profit and for permanent injunction stating inter alia that he has purchased the suit land from one Akhandleshwar Prasad Singh by registered sale deed dated 7-12-1955 vide Ex.P-1 and came into possession of the suit land and started paying land revenue and he remained in possession from the date of purchase till 1967-68 by getting his name entered and registered in various revenue records and by making payment of land revenue, but thereafter, in the year 1968, original defendant No.1 Rangnath Singh (who died during the pendency of suit) forcefully dispossessed him and started cultivating the suit land and defendant No.2 being a liquor contractor has also joined hands with defendant No.1, as such, he is entitled for the decree of possession being title-holder of the suit land.
3. Both the defendants filed joint written statement stating inter alia that their possession over the suit land is prior to 1955 continuously and undisputedly and as such, the suit is barred by limitation and since 4 they are in possession for last 25 years, therefore, by applying the doctrine of adverse possession they have perfected their title by way of adverse possession. They introduced a plea on 9-5-1974 by way of amendment that it was the benami property of the plaintiff's father, as the plaintiff's father had purchased the said property in the name of the plaintiff in 1955 when the plaintiff was minor and his father has transferred the suit land in their favour and thereby brought an end to the dispute between the parties as such, the plaintiff was never title-holder of the said property and the suit deserves to be dismissed.
4. Pursuant to the said plea, the plaintiff made a consequential amendment in the plaint on 31-7-1974 stating inter alia that the property was held by the plaintiff as full owner and his father has no benami title over the suit land and he has no right to transfer the suit land in favour of the defendants and agreement dated 16-6-1961 (Ex.D-1) was never executed by his father in favour of defendant No.1 and it is a false and fabricated document, as such, the plaintiff is entitled for declaration of title and possession.
5. The trial Court initially by judgment dated 13-3-1975, dismissed the suit as barred by limitation which the first appellate Court remanded on 10-12-1975 in appeal filed by the plaintiff and on remand, the trial Court dismissed the suit on 30-8-1979 and thereafter, the lower appellate Court on 16-4-1981 allowed the first appeal and decreed the suit, but on 14-10-1986, the M.P. High Court set-aside the judgments & decrees of both the Courts below and remanded the 5 case to the trial Court by granting the application under Order 6 Rule 17 of the CPC.
6. Pursuant to the judgment of the M.P. High Court, on 12-12-1997, the trial Court complying the judgment, considered the matter afresh and decreed the suit, but the first appellate Court allowed the appeal filed by the defendants and dismissed the suit holding that the defendants have perfected their title by way of adverse possession and further held that Ex.D-1 agreement to sale is a valid document.
7. Questioning and disputing the validity and correctness of the judgment and decree of the first appellate Court dismissing the suit, the appellants herein / LRs of the original plaintiff have filed this second appeal in which substantial question of law has been formulated which has been set-out in the opening paragraph of this judgment.
8. Mr. Sunil Tripathi, learned counsel appearing for the appellants herein / LRs of the original plaintiff, would submit that the plaintiff is the owner of the suit property vide Ex.P-1 dated 7-12-1955 having been purchased from one Akhandleshwar Prasad Singh and duly proved by the evidence led before the trial Court and the first appellate Court having held that Ex.D-1 is a valid agreement to sale executed by the plaintiff's father in favour of the defendants, could not have recorded the finding that the defendants have perfected their title by adverse possession, as it is well settled law that possession pursuant to the agreement to sale is always permissive possession and that can never be adverse to the original owner thereof as held by the Supreme 6 Court in the matter of Mohan Lal (deceased) through his LRs. Kachru and others v. Mirza Abdul Gaffar and another 1. He would further submit that Akhandleshwar Prasad Singh from whom the plaintiff has purchased the property has appeared as DW-4 and has clearly admitted the fact of alienation, but in favour of the plaintiff's father. Even otherwise, defendant No.2 examined as DW-1 has clearly admitted in para 7 of his evidence that he was cultivating the land as a licensee of the original owner and shared the crops with the owner up to the year 1969. As such, the finding recorded by the first appellate Court that the defendants have perfected their title by way of adverse possession deserves to be set-aside by answering the question of law in favour of the plaintiff and against the defendants.
9. Mr. Ravish Chand Agrawal, learned Senior Counsel appearing on behalf of the defendants/respondents herein, would submit as under: -
1. The plaintiff's suit was admittedly a suit for possession of the suit property based on title and the defendants have denied the title of the plaintiff. It is necessary for the court to give a finding on the title of the plaintiff even if the defendants in possession had taken the plea of adverse possession.
2. Initial burden is on the plaintiff to prove his title and once the title is established on the basis of relevant documents and other evidence, then only burden shifts to the defendant to establish that he has perfected his title by adverse possession. He would rely upon the judgments of the Supreme Court in the matters 1 (1996) 1 SCC 639 7 of Indira v. Arumugam and another 2 and M. Durai v. Muthu and others3.
3. Once the right to property or title is lost to recover the possession, that cannot be re-vested by any re-entry or by a subsequent acknowledgment of title, as once the title vests as effectively as if there had been a conveyance by the former owner, that cannot be re-vested. He would further rely upon the decision of the Supreme Court in the matter of Ravinder Kaur Grewal and others v. Manjit Kaur and others 4 and referred to paragraphs 28 and 53 of the report to strengthen his submission.
10. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the records with utmost circumspection.
11. In the first round of litigation, by judgment dated 14.10.1986 the High Court of M.P. remanded the second appeal filed by the defendants for giving opportunity to the parties to amend the plaint with regard to the question whether the said deed of agreement Ex.D- 1 is forged or not and accordingly, the plaint was amended with a pleading that the agreement dated 16-6-1961 (Ex.D-1) was not executed by plaintiff's father Ram Kishun Sao and it is a forged document, whereas, the defendants have pleaded that they are in possession prior to 1955, the suit is barred by limitation and the 2 (1998) 1 SCC 614 3 (2007) 3 SCC 114 4 (2019) 8 SCC 729 8 plaintiff's father had executed agreement to sale Ex.D-1 in their favour and as such, they are continuing in possession. Thereafter, the parties led evidence. In second round, the trial Court held that the plaintiff is title holder of the suit land as it was purchased vide Ex.P-1 dated 7-12-1955 for a cash consideration of ₹ 1,500/- from Akhandleshwar Prasad Singh in which the defendants have forcefully dispossessed the plaintiff and decreed the suit which the first appellate Court reversed holding that Ex.D-1 is not forged or fabricated, but is a valid document.
12. The suit for possession of immovable property based on title is governed by Article 65 of the Limitation Act, 1963, which states as under: -
65. For possession of Twelve years When the possession immovable property or of the defendant any interest therein based becomes adverse to on title. the plaintiff.
13. From a perusal of the aforesaid provision, it is clear that when the suit is based on title for possession, once the title is established by the plaintiff on the basis of relevant documents and supporting evidence, unless the defendant proves adverse possession for the prescriptive period, the plaintiff cannot be non-suited. {See Indira (supra).}
14. Similarly, the Supreme Court in M. Durai (supra) dealing with Article 65 of the Limitation Act, 1963, has held that under Article 65, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession. Under the latter, the plaintiff was bound to prove his title as also 9 possession within twelve years preceding the date of institution of the suit.
15. The instant suit from which this appeal has arisen, was a suit for possession based on title stating inter alia that the plaintiff has purchased the suit land vide Ex.P-1 dated 7-12-1955 from Akhandleshwar Prasad Singh which the trial Court has found proved by recording a finding that the plaintiff has purchased the suit land by registered sale deed which the first appellate Court did not accept by recording a finding that the defendants are in possession prior to 1955 i.e. from 7-12-1955.
16. Ex.P-1 is a registered sale deed dated 7-12-1955 executed by Akhandleshwar Prasad Singh in favour of the plaintiff. Akhandleshwar Prasad Singh has been examined as DW-4. In paragraph 1 of his (DW-4) examination-in-chief, he has clearly admitted in clear words that in 1954-55 he has alienated the suit land to Ram Kishun Sao - father of the plaintiff and he has obtained the sale consideration from Ram Kishun Sao. On reading the said statement, there is no doubt at all about the alienation made by said DW-4 in favour of the plaintiff's father. He has also proved Ex.P-1 and further stated that prior to execution of sale deed, he was in possession of the suit land. As such, by the statement of aforesaid witness (vendor of the land), it is established that Akhandleshwar Prasad Singh was the owner of the suit land and he had sold the land in favour of the plaintiff through his guardian father Ram Kishun Sao by which the plaintiff became the title holder. The fact of alienation was also proved by the scribe to 10 the said sale deed - Vishnu Prasad Gupta (PW-3) who has clearly stated that the sale deed was executed as per the direction and dictation of Akhandleshwar Prasad Singh (DW-4) and sale consideration was paid on behalf of the plaintiff by his father Ram Kishun Sao. It appears from the record and particularly from Ex.P-1
- copy of sale deed dated 7-12-1955 that at the time of purchase, the plaintiff was minor and therefore it was purchased by his father Ram Kishun Sao as a guardian on account of the plaintiff's minority, but the fact remains that it was purchased by the plaintiff through his guardian and father Ram Kishun Sao and title will be of the plaintiff as per Ex.P-1 sale deed and he came in possession of the suit land from the date of execution of sale deed and thereafter, he remained in possession till 1967-68.
17. While filing written statement, the original defendants only took the plea in their written statement that their possession is from 1955 and thereby they have perfected their title by way of adverse possession. In the plea introduced on 9-5-1974, for the first time, the defendants took the plea that the property was benami property of Ram Kishun Sao and since they were in possession, Ram Kishun Sao executed agreement to sale Ex.D-1 dated 16-6-1961 in their favour to bring an end to the dispute and as such, the plaintiff was never the owner of the suit land. The defendants also pleaded that the plaintiff's father as Karta of the Hindu Undivided Family on 16-6- 1961 executed an agreement to sale in their favour, as such, they are in possession in part performance of the contract which the trial 11 Court has held to be forged, but the first appellate Court has held to be a valid document and thereby reversed the decree of the trial Court holding that the defendants have perfected their title by way of adverse possession.
18. At this stage, it would be appropriate to notice the submission of the learned Senior Counsel based on Section 27 of the Limitation Act, 1963 that once the right to property to recover possession is extinguished, it cannot be re-vested by re-entry or by subsequent acknowledgment of title. The learned Senior Counsel referred to paragraphs 28 and 53 of the decision rendered by their Lordships of the Supreme Court in Ravinder Kaur Grewal (supra), which state as under: -
"28. In Halsbury's Laws of England, extinction of title by the effect of the expiration of the period of limitation has also been discussed in Para 783 and once right is lost to recover the possession, the same cannot be re-vested by any re-entry or by a subsequent acknowledgment of title. Para 783 is extracted hereunder:
"783. Extinction of title.--At the expiration of the periods prescribed by the Limitation Act, 1939 for any person to bring an action to recover land (including a redemption action) or an action to enforce an advowson, the title of that person to the land or advowson is extinguished. This is subject to the special provisions relating to settled land and land held on trust and the provisions for constituting the proprietor of registered land a trustee for the person who has acquired title against him. The extinguished title cannot afterward be revested either by re-entry or by a subsequent payment or acknowledgment of title. A rent-charge is extinguished when the remedy to recover it is barred."
(emphasis supplied)
53. Law of adverse possession does not qualify only a defendant for the acquisition of title by way of adverse possession, it may be perfected by a person who is filing a 12 suit. It only restricts a right of the owner to recover possession before the period of limitation fixed for the extinction of his rights expires. Once the right is extinguished another person acquires prescriptive right which cannot be defeated by re-entry by the owner or subsequent acknowledgment of his rights. In such a case suit can be filed by a person whose right is sought to be defeated."
19. This Court also in the matter of Resham Lal alias Badri Prasad and another v. Gosai Ram and others, 2007(3) C.G.L.J. 231, relying upon Section 27 read with Article 65 of the Limitation Act, 1963, has clearly held that inaction of the owner of the suit land for recovery of the possession continuously for more than 12 years extinguishes his title over the suit land.
20. Assuming the date of the defendants coming into possession of the suit land as held by the first appellate Court is from 7-12-1955 till the date of agreement to sale by the plaintiff's father in favour of the defendants i.e. 16-6-1961, the total period on the date of execution of agreement to sale by the plaintiff's father in favour of the defendants and their possession from the said date would be less than 12 years i.e. the period necessary for at least maintaining the plea of adverse possession, therefore, the benefit of Section 27 of the Limitation Act, 1963 is not available to the plaintiff. So also the argument based on paragraphs 28 & 53 of the decision rendered by the Supreme Court in Ravinder Kaur Grewal (supra) is not available to the plaintiff.
21. Now, the question is, whether the defendants have made out a case for perfection of their title by adverse possession over the suit land?
22. Three classic requirements of adverse possession are contained in nec vi, nec clam and nec precario namely, adequate in continuity, adequate 13 in publicity and adverse to a competitor, respectively. The above- stated requirements are required to be pleaded and established to get a decree on the basis of adverse possession.
23. The Supreme Court in the matter of Karnataka Board of Wakf v. Government of India and others5 laid down the principles of law which a person claiming adverse possession should demonstrate by holding that 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. Their Lordships further held that 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.
24. The principle of law laid down in Karnataka Board of Wakf (supra) has been followed with approval in Ravinder Kaur Grewal (supra) and their Lordships in paragraphs 60, 61 & 62 of the report laid down the principles and clearly held that 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 detail of title and his knowledge, and observed as under: -
"60. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi 5 (2004) 10 SCC 779 14 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 based on possession.
61. Adverse possession is heritable and there can be tacking of adverse possession by two or more persons as the right is transmissible one. In our opinion, it confers a perfected right which cannot be defeated on re-entry except as provided in Article 65 itself. Tacking is based on the fulfillment of certain conditions, tacking may be by possession by the purchaser, legatee or assignee, etc. so as to constitute continuity of possession, that person must be claiming through whom it is sought to be tacked, and would depend on the identity of the same property under the same right. Two distinct trespassers cannot tack their possession to constitute conferral of right by adverse possession for the prescribed period.
62. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years' period of adverse possession is over, even owner's right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the 15 owner's title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other Articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit."
25. 1) In Ram Janmabhumi Temple Case in the matter of M. Siddiq (Dead) Through Legal Representatives (Ram Janmabhumi Temple Case) v. Mahant Suresh Das and others 6, the Supreme Court (Constitution Bench) has clearly held that the claim on the basis of adverse possession amounts to acknowledgment of title of person against whom adverse possession is claimed and observed as under: -
"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 No.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 6 (2020) 1 SCC 1 16 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. ..."
24.2) Their Lordships further relying upon the judgment of the Supreme Court in Karnataka Board of Wakf (supra) held that the ingredients in terms of that judgment must be set up in the pleadings and proved in evidence. There can be no proof sans pleadings and pleadings without evidence will not establish a case in law. 24.3) Their Lordships also emphasized the need for making clear averment of adverse possession as under: -
"1154. In a judgment rendered in 2015, one of us (Abdul Nazeer, J.) as a Single Judge of the Karnataka High Court succinctly identified and laid down the prerequisites of a claim to adverse possession in the following terms:
(Pilla Akkayyamma case7, SCC OnLine Kar Para 27) "27. 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 others' rights but denies them. Possession implies dominion and control and the consciousness in the mind of the person having dominion over an object that he has it and can exercise it. Mere possession of the land would not ripen into possessory title. Possessor must have animus possidendi and hold the land adverse to the title of the true owner.
Occupation only implies bare use of the land without any right to retain it. In order to constitute adverse possession, there must be actual possession of a person claiming as of right by himself or by persons deriving title from him. To prove title to the land by adverse possession, it is not sufficient to show that some acts of possession have been done. The possession required must be adequate in continuity, in publicity and in extent to show that it is adverse to the owner. In other words, the possession must be actual, visible, exclusive, hostile and continued during the time necessary to create a bar under 7 Pilla Akkayyamma v. Channnappa, 2015 SCC OnLine Kar 8226 : ILR 2015 Kar 3841 17 the statute of limitation.
30. In a suit falling under Article 65 of the Limitation Act, plaintiff must establish his title to the property. He need not prove that he was in possession within 12 years. If he fails to prove his title, the suits fails, and the question of adverse possession does not arise in such a case. When the plaintiff has established his title to a land, the burden of proving that he has lost that title by reason of the adverse possession of the defendant lies upon the defendant. If the defendant fails to prove that he has been in adverse possession for more than 12 years, the plaintiff is entitled to succeed simply on the strength of his title. A person alleging that he has become owner of immovable property by adverse possession must establish that he was in possession of the property peaceably, openly and in assertion of a title hostile to the real owner. Stricter proof is required to establish acquisition of title by adverse possession for the statutory period."
(emphasis supplied) 1155. In Ravinder Kaur Grewal v. Manjit Kaur8, a three-Judge Bench of this Court of which one of us, Abdul Nazeer, J. was a part, further developed the law on adverse possession to hold that any person who has perfected their title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In this view, adverse possession is both a sword and a shield.
1156. The plaintiffs have failed to adopt a clear stand evidently because they are conscious of the fact that in pleading adverse possession, they must necessarily carry the burden of acknowledging the title of the person or the entity against whom the plea of adverse possession has not been adequately set up in the pleadings and as noted above, has not been put forth with any certitude in the course of the submissions. Above all, it is impossible for the plaintiffs to set up a case of being in peaceful, open and continuous possession of the entire property. ..."
26. Reverting to the facts of the present case in light of the principles of law flowing from the above-noticed judgments of the Supreme Court, it is the case of the defendants that they came in possession pursuant to the agreement to sale from the plaintiff's father which the trial 8 (2019) 8 SCC 729 : (2019) 4 SCC (Civ) 453 18 Court did not accept, but the first appellate Court has accepted the agreement to sale dated 16-6-1961 (Ex.D-1) as a valid document and the defendants in this second appeal have not questioned the said document to be invalid document by filing cross-appeal or cross- objection, if any. So the nature of document vide Ex.D-1 to be valid document executed by the plaintiff's father in favour of the defendants, has become final. Therefore, the question would be, what is the nature of possession which they (defendants) hold by Ex.D-1 - agreement to sale? At this stage, it would be necessary to notice Ex.D-1 dated 16-6-1961 which states as under: -
eSa oyh jkefd'kqu jke vkRet t; xksfoUn lko tkfr jkSfu;kj lkfdu fiaMªk Fkkuk cyjkeiqj rglhy iky ftyk ljxqtk dk gwaA eSa viuk yM+dk ukckfyd Hkh[ke lko vkRet jke fd'kqu lko tkfr jkSfu;kj lkfdu fiaMªk Fkkuk cyjkeiqj rglhy iky ftyk ljxqtk ds tehu tks ekStk cyjkeiqj ds [kkrk uEcj 92 dk 8-89 (vkB ,dM+ uoklh fMflfey) gSA ftldk [kljk uEcj] jdck uEcj fiB ij n'kkZ;k x;k gS] ftls Jh jaxukFk flag oYn jk/kkÑ".k flag lkfdu louh ds lkFk eqofyd 5000 (ikap gtkj :i;k) flQZ esa cspus ds fy;s r; fd;k ftlesa ls eqofyd 1400 (pkSng lkS :i;k) flQZ ikdj bdjkj ukek fy[k jgk gwa fd okn okfjl cph gq;h iwjh jde ysdj vnkyr jkekuqtxat esa jftLVªh dj nwaxkA tks fd Øsrk dk igys ls gh dCtk gSA blfy;s nks xokgksa ds lkeus vius gks'k gok'k ds lkFk bdjkjukek fy[k fn;k fd le; ij dke vkosA
27. On a careful perusal of agreement to sale Ex.D-1, it appears that the plaintiff's father on behalf of the plaintiff (Bhikham Sao), being his guardian, has agreed to sell the suit land in favour of defendant No.1 for a consideration of ₹ 5,000/- and defendant No.1 who was already in possession of the suit land was allowed to continue in 19 possession further on the basis of Ex.D-1 - agreement to sale entered on 16-6-1961.
28. At this stage, it would be appropriate to notice Section 53A of the Transfer of Property Act, 1882 which provides as under: -
"53A. Part performance.--Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
29. Following are the essential conditions contemplated by Section 53A of the Transfer of Property Act, 1882: -
(1) there must be a contract to transfer for consideration of any immovable property;
(2) the contract must be in writing, signed by the transferor, or by someone on his behalf;20
(3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained;
(4) the transferee must in part-performance of the contract take possession of the property, or of any part thereof;
(5) the transferee must have done some act in furtherance of the contract; and (6) the transferee must have performed or be willing to perform his part of the contract.
30. Protection provided under Section 53A of the Transfer of Property Act, 1882 to the proposed transferee is a shield only against the transferor. It dis-entitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance of such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed into service against a third party. (See Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra (Dead) Through LRs.9.)
31. By virtue of Section 53A of the Transfer of Property Act, 1882, where a transferee is already in possession, if continues in possession pursuant to the said agreement to sale, he shall be deemed to be in possession pursuant to the agreement and the nature of possession pursuant to the agreement to sale is no longer in dispute, it is always 9 (2004) 8 SCC 614 21 permissive in character.
32. In the matter of Achal Reddy v. Ramakrishna Reddiar and others 10, the Supreme Court while dealing with Articles 64 and 65 of the Limitation Act, 1963 in the case of an executory contract of sale where vendee getting possession of the property under agreement of sale while parties contemplating execution of registered sale deed subsequently, held that vendee in such a situation recognises title of vendor and as such cannot claim his possession to be adverse against the vendor. Paragraphs 9 and 10 of the report read as follows: -
"9. There is no controversy that the plaintiff has to establish subsisting title by proving possession within 12 years prior to the suit when the plaintiff alleged dispossession while in possession of the suit property. The first appellate court as well as the second appellate court proceeded on the basis that the plaintiff is not entitled to succeed as such possession has not been proved. The concurrent findings that the plaintiff had title in spite of the decree for specific performance obtained against him, when that decree had not been executed are not assailed by the appellant in the High Court. The appellant cannot, therefore, urge before us on the basis of the findings in the earlier suit to which he was not a party that Ex.A-1 sale deed is one without consideration and does not confer valid title on the plaintiff. The sole question that has been considered by the High Court is that of subsisting title. We have to consider whether the question of law as to the character of the possession Varada Reddi had between July 10, 1946 and July 17, 1947 is adverse or only permissive. In the case of an agreement of sale the party who obtains possession, acknowledges title of the vendor even though the agreement of sale may be invalid. It is an acknowledgment and recognition of the title of the vendor which excludes the theory of adverse possession. The well settled rule of law is that if person is in actual possession and has a right to possession under a title involving a due recognition of the owner's title his possession will not be regarded as adverse in law, even though he claims under another title having regard to the well recognised policy of law that possession is never considered adverse if it is 10 (1990) 4 SCC 706 22 referable to a lawful title. The purchaser who got into possession under an executory contract of sale in a permissible character cannot be heard to contend that his possession was adverse. In the conception of adverse possession there is an essential and basic difference between a case in which the other party is put in possession of property by an outright transfer, both parties stipulating for a total divestiture of all the rights of the transferor in the property, and in a case in which there is a mere executory agreement of transfer both parties contemplating a deed of transfer to be executed at a later point of time. In the latter case the principle of estoppel applies estopping the transferee from contending that his possession, while the contract remained executory in stage, was in his own right and adversely against the transferor. Adverse possession implies that it commenced in wrong and is maintained against right. When the commencement and continuance of possession is legal and proper, referable to a contract, it cannot be adverse.
10. In the case of an executory contract of sale where the transferee is put in possession of the property in pursuance of the agreement of sale and where the parties contemplate the execution of a regular registered sale deed the animus of the purchaser throughout is that he is in possession of the property belonging to the vendor and that the former's title has to be perfected by a duly executed registered deed of sale under which the vendor has to pass on and convey his title. The purchaser's possession in such cases is of a derivative character and in clear recognition of and in acknowledgment of the title of the vendor. The position is different in the case where in pursuance of an oral transfer or a deed of transfer not registered the owner of a property transfers the property and puts the transferee in possession with the clear animus and on the distinct understanding that from that time onwards he shall have no right of title to the property. In such a case the owner of the property does not retain any vestige of right in regard to the property and his mental attitude towards the property is that it has ceased to belong to him altogether. The transferee after getting into possession retains the same with the clean animus that he has become the absolute owner of the property and in complete negation of any right or title of the transferor, his enjoyment is solely as owner in his right and not derivatively or in recognition of the title of any person. So far as the vendor is concerned both in mind and actual conduct, there is a total divestiture of all his right, title and interest in the property. This applies only in a case where there is a clear manifestation of the intention of the owner 23 to divest himself of the right over the property. On the other hand in the case of an executory contract the possession of the transferee until the date of registration of the conveyance is permissive or derivative and in law is deemed to be on behalf of the owner himself. The correctness of the decision in Annamalai v. Muthiah11 cannot, therefore, be doubted."
33. In Mohan Lal (supra), their Lordships of the Supreme Court have held that a person having come into possession under the agreement, his possession cannot be adverse and the plea of adverse possession is not available to the said person. Paragraph 4 of the report states 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., up to 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. The decisions rendered by the Supreme Court in Achal Reddy (supra) and Mohan Lal (supra) have been followed by this Court in the matter of Santram Janak Dewangan v. Shivprasad Garibram Dewangan12 in which this Court held as under: -
"10. In view of the aforesaid position of law, the defendant, who came into possession of the suit land pursuant to the agreement to sell, cannot claim adverse possession and, as such, I do not find any illegality in the impugned judgment and decree and no such substantial 11 ILR (1965) 1 Mad 254: 78 Mad LW 172 12 AIR 2016 Chhattisgarh 150 24 question of law is involved in this second appeal."
35. Reverting finally to the facts of the present case in light of the aforesaid principles of law laid down in the above-stated judgments, it is quite apparent that in this case, defendant No.1 was required to plead and prove the three classic requirements for proving adverse possession i.e. adequate in continuity, adequate in publicity and adverse to a competitor, and further required to show on what date he came into possession, what was the nature of possession over the suit land, etc., as per the judgment rendered by the Supreme Court in Karnataka Board of Wakf (supra). It would be appropriate to notice the averment of the written statement in this regard. Paragraphs 2 & 4 of the written statement read as follows:-
2--- ;g fd okn i= dh dafMdk 2 vlR; gksus ls vekU; gS- okn Hkwfe ij izfroknhx.k dk dCtk fujUrj] vck/k :i ls ,oa 'kkafr iwoZd lu~ 1955 ds dbZ o"kZ iwoZ ls pyk vk jgk gS vkSj izfroknhx.k gh okn Hkwfe dh yxku fujUrj nsrs vk jgs gSa- izfroknhx.k dk dCtk okn Hkwfe ij iap'kkyk [kljs esa Hkh lu~ 1955 ds iwoZ ls gh vafdr gS vkSj vkr rd fof/kor vafdr gksrk pyk vk jgk gS-
4---- ;g fd okn i= dh dafMdk Øekad 4 vlR; gksus ls vekU; gS izfroknhx.k us okn Hkwfe dk dCtk lu~ 1967&68 esa ugha Nhuk gS- okn Hkwfe dk dCtk Nhuus dk iz'u gh ugha mBrk gS] tcfd izfroknhx.k okn Hkwfe ij lu~ 1955 bZ0 ds dbZ o"kZ iwoZ ls gh dkcht gksdj yxkrkj dkLr djrs pys vk jgs gS-
36. In the additional statement, paragraphs x & M, the following averment was made by the defendants:-
x--- ;g fd okn Hkwfe ij izfroknhx.k dk yxHkx 25 o"kksaZ ls fujUrj 'kkafr iwoZd dCtk djus ds dkj.k izfroknhx.k dks foHkq[kkf/kdkj adverse possession ds dkj.k Hkh LoRo izkIr gks pqdk 25 gS-
M---- ;g fd oknh ds firk us la;qDr fgUnw ifjokj ds drkZ dh gSfl;r ls okn Hkwfe dks cspus dk Bgjkao contract fyf[kr :i esa vkSj viuh nLr[kr ls fnukad 18-6-61 bZ0 dks mfpr ewY; ysdj fd;k rFkk izfroknhx.k mDr frfFk 18-6-61 ds iwoZ ls gh okn Hkwfe ij dkcht jgs vkSj vkt rd dkcht gS- Bgjkao ds vkaf'kd lEiknu part performance of contract /kkjk 53 % v % Hkw&gLrkarj.k vf/kfu;e dk fl)kar ykxw gksrk gS vkSj izfroknhx.k mDr Bgjko contract esa fufgr vius drZO; dk ikyu djrs gS] vkSj Hkfo"; esa Hkh djus ds fy, rS;kj gS-
37. On a careful perusal of the above-stated averment of defendant No.1, conjointly, it is vivid that the defendants did not aver any date of coming into possession of the suit land except pleading that they are in possession many years prior to 1955 and thereafter, in the additional statement (para M), it was pleaded that they entered into agreement to sale with the plaintiff's father on 18-6-1961, but they are already in possession of the suit land and Section 53A of the Transfer of Property Act, 1882 is applicable.
38. Thus, the defendants claimed that they are in possession of the suit land prior to the agreement to sale dated 16-6-1961 (Ex.D-1).
Section 53A of the Transfer of Property Act, 1882 would still be applicable, if the transferee is already in possession.
39. Their Lordships of the Supreme Court in Mohan Lal (supra) and Achal Reddy (supra) have clearly held that where the claim is founded on Section 53A of the Transfer of Property Act, 1882 and the claimant admits by implication that he came into possession of the 26 suit land lawfully under agreement to sale and continued to remain in possession till the date of suit, his possession being permissive, plea of adverse possession is not available to the claimant (defendant in this case). Since the defendant's possession over the suit land is admittedly pursuant to the agreement to sale Ex.D-1 and the said possession being permissive, the plea of adverse possession is not available to the defendants. The first appellate Court has committed gross legal error in holding that the defendants have perfected their title by way of adverse possession.
40. The substantial question of law is answered against the defendants and in favour of the plaintiffs.
41. As a fallout and consequence of the aforesaid discussion, the judgment and decree of the first appellate Court is hereby set aside and that of the trial Court is restored. The second appeal is allowed to the extent indicated herein above relegating the parties to bear their own cost(s).
42. Decree be drawn-up accordingly.
Sd/-
(Sanjay K. Agrawal) Judge Soma