Madhya Pradesh High Court
Shivendra Singh vs The State Of Madhya Pradesh on 28 July, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:17085
1 S.A. No.1887 of 2019
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 28th OF JULY, 2025
SECOND APPEAL No. 1887 of 2019
SHIVENDRA SINGH
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri V.K. Bhardwaj, Senior Advocate with Shri Rohit Batham,
Advocate for the appellant.
Shri K.N. Gupta Senior Advocate with Ms. Suhani Dhariwal and Shri
Santosh Agrawal, Advocate for respondent No.3.
JUDGMENT
This second appeal, under Section 100 of CPC, has been filed against the judgment and decree dated 17-05-2019 passed by I Additional District Judge, Gwalior in Regular Civil Appeal No.14A/04, by which the judgment and decree dated 5-03-2004 passed by X Civil Judge Class II, Gwalior in Regular Civil Suit No. 8A/03 has been set aside.
2. The appellant is the plaintiff No. 2 and respondent No. 2 is the plaintiff No. 1. According to the case of plaintiffs, the grandfather of plaintiff No. 1 was Lal Singh, whereas the grandfather of plaintiff No. 2 was Bhikam Singh. Khasra No. 6, Area 12 Bigha 18 Biswa and Khasra No. 8/2, Area 15 Bigha 19 Biswa, situated in village Sirol, Tahsil Gird, District Gwalior is the disputed Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 8/14/2025 11:42:13 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:17085 2 S.A. No.1887 of 2019 property. It is the case of the plaintiffs that Durgo, widow of Sevaram, was the Zamindar of Khasra No. 6, whereas Gendalal, son of Ramprasad, was Zamindar of Khasra No. 8/2. The aforesaid land was given on lease to the grandfathers of the plaintiffs on 18/06/1998 (Samvat 2005), and since then the grandfathers of the plaintiffs were in cultivating possession of the land in dispute. After their death, plaintiffs have come in possession of the land in dispute and they are cultivating the same. It is submitted that in the Khasra of year 2007 to 2014, the names of the plaintiffs were recorded in the revenue record, whereas in the Khasra of Samvat 2035 to 2038 and 2044 to 2048, the names of the grandfathers of the plaintiffs were recorded in the capacity of the person in possession. Thereafter, the land in dispute was mutated in the name of the Forest Department. The plaintiffs came to know about the said fact only when they obtained the certified copy of the Khasra on 12-11-2002. It is the case of the plaintiffs that the predecessors of the plaintiffs were in possession of the property in dispute three years prior to Samvat 2006 and from thereafter the plaintiffs are in possession of the land in dispute. Therefore, the plaintiffs and their predecessors are in possession for the last 43 years. Accordingly, it was prayed that since the plaintiffs and their predecessors are in possession of the property in dispute, therefore, they are entitled to be declared as owner and the State and its functionaries may be restrained from interfering with the peaceful possession of the plaintiffs. Since the primary relief was claimed against the State Government, therefore, a notice under Section 80 of CPC was also required. However, it was prayed that in case if the plaintiffs are required to wait for the statutory period to expire, then there is every possibility that they may be dispossessed. Therefore, a separate application under Section 80(2) of CPC was also filed. Accordingly, it was the case of the plaintiffs that the cause of action arose on 12-11-2002 when they obtained the certified copy of the Khasra. Thus, it was Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 8/14/2025 11:42:13 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:17085 3 S.A. No.1887 of 2019 prayed that a decree be passed in favour of the plaintiffs declaring that they are the Bhumiswami of the land in dispute and the defendants must be restrained from interfering with the peaceful possession of the plaintiffs and it was also prayed that a declaration may be given that the plaintiffs are entitled to get their names mutated in the revenue records.
The defendant/State filed its written statement and claimed that the plaintiffs have not filed any document to show that they are in possession of the property in dispute. It was pleaded that in absence of prayer for possession, the suit itself is not maintainable. No document to show the Khasra of Samvat 2035 to 2038 and 2044 to 2048 was filed. The plaintiffs have sought that the revenue record of Samvat 2059 be corrected, whereas the period of limitation for correction of the revenue entry is one year. The plaintiffs had not made any effort to get the revenue records corrected during the said period and thus the suit is barred by limitation. The suit has not been properly valued. It was further stated that although the plaintiffs had claimed that they got the certified copy of the Khasra on 12-11-2002, but as per the endorsement made on the certified copy, it is clear that the application for obtaining the certified copy was filed on 2-7-1986 and certified copy was delivered on 18-8-1986. Therefore, even otherwise, the suit filed by the plaintiff is also barred by time. The cause of action did not arise in favour of plaintiff on 12-11-2002. It is submitted that from Samvat 2006, the State Government has been recorded as the owner of the property in dispute. The names of predecessors of the plaintiffs were never recorded as persons in possession. Even if the predecessors of the plaintiff were in possession, still their possession was in the capacity of encroachers. Therefore, they are not entitled for any relief and thus it was prayed that the suit filed by the plaintiff be dismissed with a cost of Rs. 5,000.
3. The trial court, after framing issues and recording evidence, decreed Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 8/14/2025 11:42:13 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:17085 4 S.A. No.1887 of 2019 the suit by judgment and decree dated 5-3-2004 in Civil Suit No. 8-A/2003. Being aggrieved by the judgment and decree passed by the trial court, the respondents/State preferred an appeal under Section 96 of CPC along with an application filed under Section 5 of the Limitation Act. The appellate Court rejected the application filed under Section 5 of the Limitation Act and accordingly dismissed the suit as barred by time.
4. Being aggrieved by the order passed by the appellate Court, the State preferred Second Appeal No. 143/2008. By judgment dated 8th of April 2011, the said second appeal was dismissed by a coordinate Bench of this Court by holding that the appellate Court did not commit any mistake by rejecting the application filed under Section 5 of the Limitation Act. Being aggrieved by the judgment and decree dated 8th of April 2011 passed by this Court, the appellant preferred Civil Appeal No. 2245/2018 and the Supreme Court, by order dated 16th of February 2018, set aside the order passed by the High Court in Second Appeal No. 143/2008 as well as the order passed by the appellate Court, and delay in filing an appeal was condoned by the Supreme Court and the matter was remitted back to the first appellate Court for fresh decision on merits in accordance with law. The appellate Court, by the impugned judgment and decree dated 17-5-2019, allowed the appeal and dismissed the suit filed by appellant No. 1 and respondent No. 2.
5. It is not out of place to mention here that respondent No. 3 was not impleaded as a party in the civil suit. It appears that after the matter was remanded by Supreme Court, the respondent No. 3 filed an application under Order 1 Rule 10 CPC seeking permission for its impleadment as defendant. The appellate Court, by order dated 21-12-2018, rejected the application filed by the respondent No. 3 for impleadment. Being aggrieved by the rejection of the application filed by respondent No. 3 under Order 1 Rule 10 CPC, it appears that the respondent No. 3 filed M.A. No. 128/2019. By order dated Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 8/14/2025 11:42:13 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:17085 5 S.A. No.1887 of 2019 23-4-2019, passed by a Coordinate Bench of this Court, the said appeal was disposed of with the consent of the parties with a direction that the first appellate Court shall grant opportunity of hearing to the parties concerned including the Svastik Education and Welfare Society, Gwalior/respondent No.3 with the State Government and shall decide the regular civil appeal pending before it as expeditiously as possible. Accordingly, the respondent No. 3 was also heard by the first appellate Court while deciding the appeal filed by the State Government.
6. However, one thing is clear that respondent No. 3 was not impleaded as defendant by the plaintiffs in the suit. They moved an application for the first time after the matter was remanded back by the Supreme Court and their application under Order 1 Rule 10 CPC was rejected and even the miscellaneous appeal filed by the respondent No. 3 was disposed of only with liberty to argue along with the State Government. Thus, it is clear that the respondent No. 3 was never impleaded as defendant in the present suit. Therefore, any judgment passed in this case will not apply to the respondent No. 3 and neither this judgment would be used against the interest of the respondent No. 3 nor it will be used in favor of the respondent No. 3.
7. Challenging the judgment and decree passed by the appellate court, it is submitted by counsel for the appellant that in the Patta of Samvat 2005, the name of Lal Singh son of Machal Singh, Bhikam Singh son of Raja Ram Singh, and Kaptan Singh son of Tatariya, were recorded in respect of Khasra No. 6, whereas in the Patta of Samvat 2005, the name of Bhikam Singh son of Raja Ram, and Lal Singh son of Machal Singh, were recorded in respect of Khasra No. 8/2. These documents have been filed as Exhibit P-38 and P-39. It is submitted that it is clear from the aforesaid documents that in Samvat 2005, the names of the grandfather of the plaintiffs were recorded in the revenue records as Gair Marusi Krishak, therefore, it is incorrect to say that Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 8/14/2025 11:42:13 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:17085 6 S.A. No.1887 of 2019 the plaintiffs have failed to prove any documentary evidence to show that they were in possession of the property in dispute. It is further submitted that it is clear from the Khasra of Samvat 2007 (Ex. P-5), Samvat 2008 (Ex. P-6), Samvat 2009 (Ex. P-7), Kistband Khatoni of year 1955 (Ex. P-8), Kistband Khatoni of Samvat 2012 (Exhibit P-9), etc., the names of Lal Singh and Bhikam Singh were recorded as agriculturists and therefore it is clear that they were in possession of the property in dispute. It is further submitted that there is a presumption attached to the revenue entries and the same has been ignored by the lower appellate Court. It is further submitted that the Court below failed to see that the Forest Act, 1927 came into force in M.P. On 1- 11-1956, therefore, the property in dispute could not have been recorded in the name of the Government/Forest and, accordingly, proposed the following substantial questions of law:-
"i) Whether the learned lower appellate court has not observed order 41 rule 31 of the Code of Civil Procedure, 1908, the point of determination framed by learned lower appellate court are beyond pleading & evidence and not framed point of determination as to why judgment of learned trial court is erroneous in the eyes of law?
ii) Whether the learned lower appellate court didn't consider the judgment of learned trial court in the light of pleadings of parties and forgot true effect of order 8 rule 5 of the Code of Civil Procedure, 1908?
iii) Whether the learned lower appellate court failed to discuss the conclusions of learned trial court and the learned lower appellate court made out a new case without pleadings?
iv) Whether the learned lower appellate court failed to understand the effect of entries in revenue records and acted against the principle laid down by Hon'ble High Court in 1997 MPRN 381 parties Laxman Rao V/s State of M.P. & another and also failed to observe that rights are accrued to the appellants under the law?
v) Whether the learned lower appellate court failed to observe that Forest Act 1927 came into force in M.P. On 01.11.1956?
vi) Whether the learned lower appellate court failed to notice Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 8/14/2025 11:42:13 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:17085 7 S.A. No.1887 of 2019 the trite law that no pleadings, no evidence and therefore no issue?
vii) Whether the learned lower appellate court erred in allowing application under order 41 rule 27 of the Code of Civil Procedure, 1908 and so also erred in arraying him as a party?"
8. In reply, the counsel for the State has supported the findings recorded by the appellate court. Shri K.N. Gupta, Senior Advocate, and Shri Santosh Agarwal appeared for respondent No. 3 and submitted that it was Rayyatwari land and not Zamindari land, and therefore the contention of the appellants that the land was given on oral lease to the grandfathers of the plaintiffs by a Ex-Zamindar is false. It is further submitted that there is nothing on record to suggest that the land was ever recorded in the name of Durgo Bai and Gendalal.
9. Heard the learned counsel for the parties.
10. The arguments which were advanced by the counsel for the appellant can be summarized as under:-
That the, predecessors of the appellants had become Krishak and therefore they had acquired the status of Bhumiswami, and the plaintiffs and their predecessors were in possession of the property in dispute for the last more than 40 years and therefore they have become the owner.
The basic foundation for claiming title over the land in dispute is that, according to the plaintiffs, Durgo Bai was the Zamindar of Khasra No. 6 whereas Gendalal was the Zamindar of Khasra No. 8/2. The second contention is that Durgo Bai and Gendalal gave the aforesaid land on verbal lease to the predecessor/grandfather of the plaintiffs, namely Lal Singh and Bhikam Singh. Thereafter, Lal Singh and Bhikam Singh's names were recorded in the revenue records and they remained in possession, and after their death, the plaintiffs are in possession of the property in dispute and therefore they have acquired the title of Bhumiswami.Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 8/14/2025 11:42:13 AM
NEUTRAL CITATION NO. 2025:MPHC-GWL:17085 8 S.A. No.1887 of 2019
11. The first question for consideration is as to whether the plaintiffs have proved that the land in dispute was a Zamindari land of Durgo, widow of Sevaram, and Gendalal or not?
12. The plaintiffs have not filed any document to show that the land in dispute was a Zamindari land and Durgo and Gendalal were the Zamindars of Khasra Nos. 6 and 8/2. On the contrary, it is the case of the respondents that the land was a Rayyatwari land and not Zamindari land. Since the plaintiffs have failed to prove that Durgo Bai and Gendalal were Zamindars of Khasra No.6 and Khasra No. 8/2, therefore, this Court is of considered opinion that the first question which is essential to decide the dispute in question has to be answered in negative and thus it is held that plaintiffs have failed to prove that Durgo and Gendalal were Zamindars of Khasra Nos. 6 and 8/2 respectively.
13. It is next contended by counsel for appellants that Durgo had executed a Patta in favour of Bhikam Singh, Lal Singh and Kaptaan Singh in respect of Khasra No. 6 (Ex. P-38), and Gendalal had executed a Patta in favour of Bhikam Singh and Lal Singh in respect of Khasra No. 8/2 (Ex. P-39), and therefore, from thereafter, Bhikam Singh and Lal Singh were in cultivating possession of the land in dispute. This Court has already come to a conclusion that the plaintiffs have failed to prove that Durgo and Gendalal were the Zamindars of Khasra No. 6 and 8/2 respectively. Therefore, even if it is found that Patta (Ex. P-38) and Patta in respect of Khasra No. 8/2 (Ex. P-39) were executed by them, still in absence of any right or title in favour of Durgo and Gendalal, it cannot be said that any right to hold the property had ever been transferred in favour of Bhikam Singh and Lal Singh. Even otherwise, this Court is of the considered opinion that the plaintiffs have failed to prove the execution of Patta (Ex. P-38 and P-39).
14. The appellants have examined Shivendra Singh. Shivendra Singh has Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 8/14/2025 11:42:13 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:17085 9 S.A. No.1887 of 2019 stated that Patta (Ex. P-38) was executed by Durgo and he identified the thumb impression of Bhikam Singh and the signature of Lal Singh. This witness has not stated that he can identify the signatures of Durgo. Similarly, this witness has stated that Patta (Ex. P-39) was executed by Gendalal. This witness has also not stated that he can identify the signature on Patta. This witness has merely stated that he can identify the thumb impression of Bhikam Singh and the signatures of Lal Singh. This witness has also stated that Bihari and Kisna, who were the attesting witnesses, have expired. Thus, it is clear that Ex.P-38 was allegedly executed by Durgo in favour of Bhikam Singh, Lal Singh and Kaptaan Singh, and Ex.P-39 was executed by Gendalal in favour of Bhikam Singh and Lal Singh. Both the documents were attested by Bihari and Kishna, who have also expired. Both the documents are unregistered documents. If a witness has expired, then the plaintiff should have examined any person who can identify the signatures of Bihari and Kisna. No witness has been examined by the plaintiff to prove that Patta (Ex. P-38 and P-39) bear the signatures of Bihari and Kisna. Similarly, the plaintiffs have not examined the legal representatives of Durgo and Gendalal to prove the signatures of Durgo and Gendalal on Exhibit P-38 and P-39 respectively. In other words, the signatures of Durgo, Bihari and Kisna on Ex. P-38, and the signatures of Gendalal, Bihari and Krishna on Ex. P-39, have remained unproved. Unless and until it is proved by the plaintiff that Patta (Ex. P-38) bears the signature of Durgo and Patta (Ex. P-39) bears the signature of Gendalal, it cannot be said that the execution of the said Pattas, i.e. Ex. P-38 and P-39, was duly proved. Therefore, this Court is of the considered opinion that not only the plaintiffs have failed to prove that Durgo and Gendalal were Zamindars of Khasra No. 6 and 8/2 respectively, but they have also failed to prove the execution of Patta by Durgobai (Ex. P-38) and Patta by Gendalal (Ex. P-39). Therefore, the very source of right as Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 8/14/2025 11:42:13 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:17085 10 S.A. No.1887 of 2019 claimed by the plaintiffs could not be proved by them.
15. The next question for consideration is that Patta (Ex. P-38) was issued in the name of Bhikam Singh, Lal Singh and Kaptaan Singh. Accordingly, the counsel for the appellant was directed to clarify who was Kaptan Singh and whether he was in any manner related to the plaintiffs or not. It is fairly conceded by counsel for the appellant that there is nothing on record to suggest about the relationship of the plaintiffs with Kaptaan Singh.
16. The next question for consideration is whether the plaintiffs are the grandsons of Bhikam Singh and Lal Singh and whether the plaintiffs can succeed their property by bypassing the other Class-I heirs of Bhikam Singh and Lal Singh ?
17. The plaintiffs have examined Kashiprasad Shakya (PW-1), R.P. Bhatnagar (PW-2), Mehtab Singh (PW-3) and Shivendra Singh (PW-4). Kashiprasad (PW-1) and R.P. Bhatnagar (PW-2) are revenue officers who have proved the revenue records. Mehtab Singh (PW-3) is an agriculturist who claims that he had seen the plaintiffs and their predecessors in cultivating possession. Shivendra Singh (PW-4) is the only witness who was examined by the plaintiffs. As already pointed out, the plaintiffs have not filed any document to show that Durgo and Gendalal were ever recorded as Zamindars. On the contrary, it is clear from the Khasra Panchsala of Samvat 2008 and 2009 that the land in dispute was Rayyatwari land. Rayyatwari land is a land which is under the control and ownership of the Government and Zamindars have no right over it. Neither in the plaint nor in the evidence of Shivendra Singh it has been clarified that how they bypassed the Class-I heirs of Bhikam Singh and Lal Singh. It is not their case that any Will, gift, or sale deed was ever executed by Bhikam Singh and Lal Singh in their favor. They have not clarified that how they can succeed to the property of Kaptan Singh. Even the date of death of Bhikam Singh and Lal Singh is not on record. Even Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 8/14/2025 11:42:13 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:17085 11 S.A. No.1887 of 2019 the plaintiffs have not given the pedigree in the plaint. They have not clarified that who were the sons and daughters of Bhikam Singh and Lal Singh. Therefore, even otherwise, if it is presumed that the land in question was given on Patta to Bhikam Singh and Lal Singh, still the plaintiffs have failed to prove that they are the legal representatives of Bhikam Singh and Lal Singh and they had succeeded the property in accordance with the Hindu Succession Act.
18. Furthermore, in order to bring the suit within a period of limitation, it was claimed by the plaintiffs that when they obtained the certified copy of the revenue records on 12-11-2002, then they came to know that the name of the State Government was already recorded in the revenue records, and thus they claimed that the cause of action arose for the first time on 12-11-2002. The plaintiffs have filed the revenue records (Ex. P-1 to P-3), and the certified copies of the said documents were obtained by the plaintiff on 18-12-2002. Thus, the case of the plaintiffs that they got the certified copy on 12-11-2002 and therefore came to know about the recording of the name of the State Government is false because the certified copies were obtained by them subsequent to 12-11-2002 and not prior thereto. The certified copies of the other Khasra Pansalas were supplied to the appellant in the year 1986. In order to take advantage of the lack of knowledge, the person has to plead and prove that, in spite of his due diligence, he could not obtain the documents. Section 17 of the Limitation Act read as under:
17. Effect of fraud or mistake.--
(1)Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,
(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or
(b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 8/14/2025 11:42:13 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:17085 12 S.A. No.1887 of 2019 person as aforesaid; or
(c) the suit or application is for relief from the consequences of a mistake; or
(d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, the period of limitation shall not begin to run until plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production:
Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which-- (I) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to believe, that any fraud had been committed, or
(ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or
(iii) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed. (2) Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the court may, on the application of the judgment-creditor made after the expiry of the said period extend the period for execution of the decree or order:
Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be.
Thus, it is clear that in absence of any pleading that, in spite of reasonable diligence, the appellants could not discover the recording of name Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 8/14/2025 11:42:13 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:17085 13 S.A. No.1887 of 2019 of State and could not obtain the certified copies of Ex. P-1 to P-3, this Court is of considered opinion that a bald statement that only after obtaining the certified copies of the aforesaid documents on 12-11-2002 they got the knowledge of the mutation in the revenue records and therefore the cause of action arose on 12-11-2002 cannot be accepted. Thus, it is clear that the suit filed by the appellants was also barred by time, as they should have filed the suit within a period of three years from the date of mutation of the name of the State Government in the revenue records.
19. It is next contended by counsel for the appellant that since appellant No. 1 and respondent No. 2 are in possession of the property in dispute for the last more than 40 years, therefore, they have perfected their title by way of adverse possession and thus, it is submitted that even if the Court below had come to the conclusion that the plaintiffs have failed to prove their title over the land in dispute, still they were in open and hostile possession.
20. Heard the learned counsel for the appellant on the said question.
21. In order to claim the ground of adverse possession, the aspirant has to admit the title of the true owner, and only thereafter he can claim that he was in open and hostile possession. Long possession by itself is not sufficient to hold that the person is in hostile or adverse possession.
22. The Supreme Court in the case of Hemaji Waghaji Jat Vs. Bhikabhai Khengarbhai Harijan and others reported in (2009) 16 SCC 517 has held as under:
14. In Secy. of State for India In Council v. Debendra Lal Khan [(1933-34) 61 IA 78 : AIR 1934 PC 23] it was observed that the ordinary classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario and the possession required must be adequate in continuity, in publicity and in Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 8/14/2025 11:42:13 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:17085 14 S.A. No.1887 of 2019 extent to show that it is possession adverse to the competitor.
15. This Court in P. Lakshmi Reddy v. L. Lakshmi Reddy [AIR 1957 SC 314], while following the ratio of Debendra Lal Khan case [(1933-34) 61 IA 78 : AIR 1934 PC 23], observed as under : (P. Lakshmi Reddy case [AIR 1957 SC 314] , AIR p. 318, para 4) "4. ... But it is well-settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties.
Ouster of the non-possessing co-heir by the co- heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-
heir's title. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster."
The Court further observed thus : (P. Lakshmi Reddy case [AIR 1957 SC 314] , AIR p. 318, para 4) "4. ... the burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession."
16. In S.M. Karim v. Bibi Sakina [AIR 1964 SC 1254], Hidayatullah, J. speaking for the Court observed as under : (AIR p. 1256, para 5) "5. ... Adverse possession must be adequate in continuity, in publicity and extent and a plea Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 8/14/2025 11:42:13 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:17085 15 S.A. No.1887 of 2019 is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for 'several 12 years' or that the plaintiff had acquired 'an absolute title' was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea."
17. The facts of R. Chandevarappa v. State of Karnataka [(1995) 6 SCC 309] are similar to the case at hand. In this case, this Court observed as under : (SCC p. 314, para 11) "11. The question then is whether the appellant has perfected his title by adverse possession. It is seen that a contention was raised before the Assistant Commissioner that the appellant having remained in possession from 1968, he perfected his title by adverse possession. But the crucial facts to constitute adverse possession have not been pleaded.
Admittedly the appellant came into possession by a derivative title from the original grantee. It is seen that the original grantee has no right to alienate the land. Therefore, having come into possession under colour of title from original grantee, if the appellant intends to plead adverse possession as against the State, he must disclaim his title and plead his hostile claim to the knowledge of the State and that the State had not taken any action thereon within the prescribed period. Thereby, the appellant's possession would become adverse. No such stand was taken nor evidence has been adduced in this behalf. The counsel in fairness, despite his research, is unable to bring to our notice any such plea having been taken by the appellant."
18. In D.N. Venkatarayappa v. State of Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 8/14/2025 11:42:13 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:17085 16 S.A. No.1887 of 2019 Karnataka [(1997) 7 SCC 567 : (1998) 2 CLJ 414] this [Ed. : The extract quoted herein below is taken from the observations of the learned Single Judge of the High Court in an order involved in D.N. Venkatarayappa case, (1997) 7 SCC 567.] Court observed as under : (SCC p.
571b-c, para 3) "Therefore, in the absence of crucial pleadings, which constitute adverse possession and evidence to show that the petitioners have been in continuous and uninterrupted possession of the lands in question claiming right, title and interest in the lands in question hostile to the right, title and interest of the original grantees, the petitioners cannot claim that they have perfected their title by adverse possession...."
19. In Md. Mohammad Ali v. Jagadish Kalita [(2004) 1 SCC 271] this Court observed as under : (SCC p. 277, paras 21-22) "21. For the purpose of proving adverse possession/ouster, the defendant must also prove animus possidendi.
22. ... We may further observe that in a proper case the court may have to construe the entire pleadings so as to come to a conclusion as to whether the proper plea of adverse possession has been raised in the written statement or not which can also be gathered from the cumulative effect of the averments made therein."
20. In Karnataka Board of Wakf v. Govt. of India [(2004) 10 SCC 779] at para 11, this Court observed as under : (SCC p. 785) "11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 8/14/2025 11:42:13 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:17085 17 S.A. No.1887 of 2019 possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period."
The Court further observed that : (SCC p. 785, para 11) "11. ... Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show : (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."
21. In Saroop Singh v. Banto [(2005) 8 SCC 330] this Court observed : (SCC p. 340, paras 29-30) "29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse.
(See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak [(2004) 3 SCC 376] .)
30. 'Animus possidendi' is one of the ingredients of adverse possession. Unless the Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 8/14/2025 11:42:13 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:17085 18 S.A. No.1887 of 2019 person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Md. Mohammad Ali v. Jagdish Kalita [(2004) 1 SCC 271] .)"
22. This principle has been reiterated later in M. Durai v. Muthu [(2007) 3 SCC 114] . This Court observed as under : (SCC p. 116, para 7) "7. ... in terms of Articles 142 and 144 of the old Limitation Act, the plaintiff was bound to prove his title as also possession within twelve years preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession."
23. This Court had an occasion to examine the concept of adverse possession in T. Anjanappa v. Somalingappa [(2006) 7 SCC 570]. The Court observed that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his title was hostile to the real owner and amounted to denial of his title to the property claimed. The Court further observed that : (SCC p. 577, para
20) "20. ... The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."
24. In a relatively recent case in P.T. Munichikkanna Reddy v. Revamma [(2007) 6 Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 8/14/2025 11:42:13 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:17085 19 S.A. No.1887 of 2019 SCC 59] this Court again had an occasion to deal with the concept of adverse possession in detail. The Court also examined the legal position in various countries particularly in English and American systems. We deem it appropriate to reproduce relevant passages in extenso. The Court dealing with adverse possession in paras 5 and 6 observed as under :
(SCC pp. 66-67) "5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile.
(See Downing v. Bird [100 So 2d 57 (Fla 1958)]; Arkansas Commemorative Commission v. City of Little Rock [227 Ark 1085 : 303 SW 2d 569 (1957)] ; Monnot v. Murphy [207 NY 240 : 100 NE 742 (1913)] ; City of Rock Springs v. Sturm [39 Wyo 494 : 273 P 908 : 97 ALR 1 (1929)] .)
6. Efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which right to access the court expires through efflux of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 8/14/2025 11:42:13 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:17085 20 S.A. No.1887 of 2019 to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title. (See American Jurisprudence, Vol. 3, 2d, p. 81.) It is important to keep in mind while studying the American notion of adverse possession, especially in the backdrop of limitation statutes, that the intention to dispossess cannot be given a complete go-by.
Simple application of limitation shall not be enough by itself for the success of an adverse possession claim."
23. The Supreme Court also in the case of Nand Ram (Dead) Through Legal Representatives And others vs. Jagdish Prasad (Dead) Through Legal Representatives reported in (2020) 9 SCC 393 has held as under:
"42 ..... In the present proceedings, the respondent has denied his status as that of a tenant but claimed title in himself. The respondent claimed adverse possession and claimed possession as owner against a person, who has inducted him as tenant. The respondent was to prove his continuous, open and hostile possession to the knowledge of true owner for a continuous period of 12 years. The respondent has not led any evidence of hostile possession to the knowledge of true owner at any time before or after the award of the Reference Court nor has he surrendered possession before asserting hostile, continuous and open title to the knowledge of the true owner. The question of adverse possession without admitting the title of the real owner is not tenable. Such question has been examined by this Court in Uttam Chand v. Nathu Ram [(2020) 11 SCC 263]."Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 8/14/2025 11:42:13 AM
NEUTRAL CITATION NO. 2025:MPHC-GWL:17085 21 S.A. No.1887 of 2019
24. The Supreme Court in the case of A. Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam represented by its President and others reported in (2012) 6 SCC 430 has held as under:
"43.6. The watchman, caretaker or a servant employed to look after the property can never acquire interest in the property irrespective of his long possession. The watchman, caretaker or a servant is under an obligation to hand over the possession forthwith on demand. According to the principles of justice, equity and good conscience, the courts are not justified in protecting the possession of a watchman, caretaker or servant who was only allowed to live into the premises to look after the same.
43.7. The watchman, caretaker or agent holds the property of the principal only on behalf of the principal. He acquires no right or interest whatsoever in such property irrespective of his long stay or possession."
25. Therefore, even assuming that the plaintiffs were in possession, still they cannot claim their title on the basis of adverse possession because they cannot take two self-contradictory pleas for the simple reason that their case is based on title, and therefore they have never accepted the title of the true owner. Claiming possession on the basis of title and claiming possession on the basis of adverse possession are just contrary to each other, and this alternative plea is not available to the plaintiffs.
26. The Supreme Court in the case of Narasamma & Ors. Vs. A. Krishnappa (dead) through Lrs decided on 26/08/2020 in Civil Appeal No.2710/2010 has held as under:-
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32. In Karnataka Board of Wakf case, it has been clearly set out that a plaintiff filing a title over the property must specifically plead it. When such a plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property. In that context, it was observed in para 12 that "....the pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced...."
33. The aforesaid judgment in turn relied upon the judgment in Mohan Lal (Deceased) Thr. LRs., which observed in para 4 as under:
"4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., upto completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."
34. In order to establish adverse possession an inquiry is required to be made into the starting point of such adverse possession and, thus, when the recorded owner got dispossessed would be crucial."
27. No other argument is advanced by counsel for the appellant.
28. The defendants had examined Munnalal (DW-1) who brought the revenue record of Samvat 1997 (Ex. D-1) of year 2003-2004 and 2004 (Ex. D-2). According to this witness, in the Khasra Panchsala of year 2003-2004, there is a reference of order dated 29-4-2003 passed by the Nazul Department, Bhopal, by which the land in dispute has been given to Murali Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 8/14/2025 11:42:13 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:17085 23 S.A. No.1887 of 2019 Lal Pavaiya Education Society, Gwalior, Co-Excellent Circle of Study School. As already pointed out, respondent No. 3 was never impleaded as defendant. Even its application filed under Order 1 Rule 10 CPC was rejected by the trial Court, and the miscellaneous appeal filed by respondent No. 3 for its impleadment was not granted by the Coordinate Bench of this Court. The Coordinate Bench had merely permitted respondent No. 3 to argue along with the State counsel. Thus, it is clear that respondent No. 3 cannot get advantage of the revenue entry made in Ex. D-1 and D-2. Furthermore, as respondent No. 3 is not a party to the appeal and no counterclaim was ever filed by it claiming title over the land in dispute by virtue of order passed by the State Government, coupled with the fact that order of Nazul department is also not produced and proved, therefore, it is held that for the purposes of this appeal respondent No. 3 would not get benefit of any entry made in Ex. D-1 and D-2.
29. Considering the totality of the facts and circumstances of the case, this Court is of considered opinion that, as no substantial question of law arises in the present appeal, accordingly, the judgment and decree dated 17-5-2019 passed by I Additional District Judge, Gwalior in Regular Civil Appeal No. 14A/04 is hereby affirmed.
30. Appeal fails and is hereby dismissed.
(G.S. Ahluwalia) Judge (and) Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 8/14/2025 11:42:13 AM