Madhya Pradesh High Court
Har Prasad vs State Of M.P. on 14 November, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:29796
1 SA-524-2006
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 14th OF NOVEMBER, 2025
SECOND APPEAL No. 524 of 2006
HAR PRASAD (DEAD) THR. LRS JAMNA BAI AND OTHERS
Versus
STATE OF M.P.
Appearance:
Shri S.P.S. Gurjar - Advocate for appellants.
Shri Sanjay Singh Kushwah - Government Advocate for the State.
JUDGMENT
1. This Second Appeal under Section 100 of CPC has been filed against the judgment and decree dated 04.03.2006 passed by Additional District Judge, Ganjbasoda, District Vidisha in Civil Appeal No.100-A/05, whereby the judgment and decree dated 30.01.1984 passed by Civil Judge, Class I, Basoda, District Vidisha in civil suit No.70-A/80 has partly been set- aside.
2. The appellant is the plaintiff who has lost his case from the first Appellate Court. The original plaintiff expired during the pendency of the appeal & is being by his legal representatives.
3. It is the case of plaintiff/appellants that they are in possession of Araji number 608/1, area 14 bigha and 3 biswa prior to samvat 2007, and even in the Samvat 2007, Patwari has recorded the possession of plaintiff. However, in order to cause irreparable loss to plaintiff, the Patwari amended the revenue record and reduced the area of 14 bigha and 3 biswa of land to Signature Not Verified Signed by: AMAN TIWARI Signing time: 24-11-2025 08:29:30 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:29796 2 SA-524-2006 13 bigha and 3 biswa. Similarly, the area of Araji No. 608/2 was enhanced from 1 bigha 10 biswa to 2 bigha 10 biswa, whereas the plaintiff was in possession of Araji number 608/1 and 608/2 even prior to samvat 2007. Thereafter, out of revenge, the Patwari recorded 608/1, as uncultivable and recorded the State as owner and now is extending a threat to evict him by treating him as encroacher. A notice was given but since the plaintiff was apprehending dispossession, therefore he filed a suit for declaration that plaintiff be declared as the owner of survey No.608/1, area 14 bigha 3 biswa, and survey No.608/2, area of 1 bigha and 10 biswa, as he has remained in continuous possession for the last 30 years, and he has perfected his title by way of adverse possession and permanent injunction was also sought.
4. Later on, in his evidence, the plaintiff started claiming himself to be the ex-zamindar. The trial Court after framing issues and recording evidence decreed the suit by judgment and decree dated 30.01.1984.
5. Being aggrieved by judgment and decree passed by the trial Court, the State of Madhya Pradesh filed an appeal which was registered as Civil Appeal No.236-A/1987, and by order dated 28/1/1988, the matter was remanded back to the trial Court. Thereafter, against the order of remand passed by the appellate Court, the plaintiff preferred Miscellaneous Appeal before the High Court which was registered as MA No.29/1988, and by order dated 18/2/1991, the appeal was allowed and the order of remand was set aside and the appellate Court was directed to decide the appeal.
6. In spite of opportunities granted by the appellate Court, it appears that the plaintiff did not lead any further evidence, and accordingly, by Signature Not Verified Signed by: AMAN TIWARI Signing time: 24-11-2025 08:29:30 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:29796 3 SA-524-2006 judgment and decree dated 4/3/2006, it was held that the plaintiff is the owner and in possession of Araji No.608/2, area 2 bigha and 10 biswa, and it was also held that the defendant/State should not interfere with the peaceful possession of the plaintiff. The suit in relation to Araji number 608/1 was dismissed.
7. Being aggrieved by the judgment and decree dated 4/3/2006 passed by Additional District Judge in Civil Appeal No.100-A/2005, the State of Madhya Pradesh filed Second Appeal No.661/2006. The Second Appeal No.661/2006 has been dismissed by this High Court by order dated 30/06/2015.
8. This second appeal has been filed by the plaintiff against the judgment and decree dated 4/3/2006 passed by the Additional District Judge Ganjbasoda Vidisha in Civil Appeal No.100-A/2005, by which his suit in respect of survey No.608/1 was dismissed.
9. This appeal was admitted on the following substantial question of law.
"1.Whether the cultivated land which is in possession of Zamindar and is khudkast land can be vested in the State after abolition of the Zamindari Act ?"
10. This Court has already reproduced the pleadings and the plaintiff had never claimed that he was the zamindar. Even the plaintiff has not filed any document to show that he was the zamindar of survey No.608/1.
11. It is a well-established principle of law that any evidence in absence of pleading and vice versa is not admissible.
12. Under these circumstances, it is held that once the appellant has failed to prove that he was the zamindar of Khasra No.608/1, then he cannot Signature Not Verified Signed by: AMAN TIWARI Signing time: 24-11-2025 08:29:30 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:29796 4 SA-524-2006 claim to be the owner of Khasra No.608/1 on the ground that after the abolition of zamindari rights he had become the Bhumiswami.
13. So far as the question of perfection of title by way of adverse possession is concerned, it is a well-established principle of law that where a person has claimed his ownership on the basis of title and has failed to prove the same, then he cannot be allowed to take an alternative plea of adverse possession.
14. The Supreme Court in the case of Dagadabai (Dead) by Legal Representatives Vs. Abbas alias Gulab Rustum Pinjari reported in (2017) 13 SCC 705 has held as under:
16. Fourth, the High Court erred fundamentally in observing in para 7 that, "it was not necessary for him (defendant) to first admit the ownership of the plaintiff before raising such a plea". In our considered opinion, these observations of the High Court are against the law of adverse possession. It is a settled principle of law of adverse possession that the person, who claims title over the property on the strength of adverse possession and thereby wants the Court to divest the true owner of his ownership rights over such property, is required to prove his case only against the true owner of the property. It is equally well settled that such person must necessarily first admit the ownership of the true owner over the property to the knowledge of the true owner and secondly, the true owner has to be made a party to the suit to enable the Court to decide the plea of adverse possession between the two rival claimants.
17. It is only thereafter and subject to proving other material conditions with the aid of adequate evidence on the issue of actual, peaceful, and uninterrupted continuous possession of the person over the suit property for more than 12 years to the exclusion of true owner with the element of hostility in asserting the rights of ownership to the knowledge of the true owner, a case of adverse possession can be held to be made out which, in turn, results in depriving the true owner of his Signature Not Verified Signed by: AMAN TIWARI Signing time: 24-11-2025 08:29:30 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:29796 5 SA-524-2006 ownership rights in the property and vests ownership rights of the property in the person who claims it.
18. In this case, we find that the defendant did not admit the plaintiff's ownership over the suit land and, therefore, the issue of adverse possession, in our opinion, could not have been tried successfully at the instance of the defendant as against the plaintiff. That apart, the defendant having claimed the ownership over the suit land by inheritance as an adopted son of Rustum and having failed to prove this ground, he was not entitled to claim the title by adverse possession against the plaintiff.
15. The Supreme Court in the case of M. Radheshyamlal Vs. V Sandhya and Anr. Etc. decided on 18.03.2024 in Civil Appeal No.4322 - 4324 of 2024 has held as under:
"12. Therefore, to prove the plea of adverse possession :-
(a) The plaintiff must plead and prove that he was claiming possession adverse to the true owner;
(b) The plaintiff must plead and establish that the factum of his long and continuous possession was known to the true owner;
(c) The plaintiff must also plead and establish when he came into possession; and
(d) The plaintiff must establish that his possession was open and undisturbed.
It is a settled law that by pleading adverse possession, a party seeks to defeat the rights of the true owner, and therefore, there is no equity in his favour. After all, the plea is based on continuous wrongful possession for a period of more than 12 years. Therefore, the facts constituting the ingredients of adverse possession must be pleaded and proved by the plaintiff."
16. The Supreme Court in the case of Uttam Chand (Dead) through Legal Representatives Vs. Nathu Ram (Dead) through Legal Representatives and others reported in (2020) 11 SCC 263 has held as under:
Signature Not Verified Signed by: AMAN TIWARI Signing time: 24-11-2025 08:29:30 PMNEUTRAL CITATION NO. 2025:MPHC-GWL:29796 6 SA-524-2006 "11. In T. Anjanappa [T. Anjanappa v. Somalingappa , (2006) 7 SCC 570] , this Court has set aside the finding of the High Court that the defendants claiming adverse possession do not have to prove who is the true owner. If the defendants are not sure who the true owner is, the question of them being in hostile possession as well as of denying the title of the true owner does not arise. The Court held as under: (SCC pp. 574-75, paras 12-14) "12. The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner.
Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property.
13. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them:
'24. It is a matter of fundamental principle of law that where possession can be referred to a lawful title, it will not be considered to be adverse. It is on the basis of this principle that it has been laid down that since the possession of one co-owner can be referred to his status as co-owner, it cannot be considered adverse to other co-owners.' (See Vidya Devi v. Prem Prakash [Vidya Devi v. Prem Prakash, (1995) 4 SCC 496] , SCC p. 504, para 24.)
14. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to be adverse if it can be referred to a lawful title. The person setting up adverse Signature Not Verified Signed by: AMAN TIWARI Signing time: 24-11-2025 08:29:30 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:29796 7 SA-524-2006 possession may have been holding under the rightful owner's title e.g. trustees, guardians, bailiffs or agents. Such persons cannot set up adverse possession:
'14. ... Adverse possession means a [hostile possession] which is expressly or impliedly in denial of title of the true owner. Under Article 65 [of the Limitation Act] burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed.
15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation.
Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all. (See Annasaheb Bapusaheb Patil v. Balwant [Annasaheb Bapusaheb Patil v. Balwant, (1995) 2 SCC 543] , SCC p. 554, paras 14-15.)'"
12. In Kurella Naga Druva Vudaya Bhaskara Rao [Kurella Naga Druva Vudaya Bhaskara Rao v. Galla Jani Kamma, (2008) 15 Signature Not Verified Signed by: AMAN TIWARI Signing time: 24-11-2025 08:29:30 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:29796
8 SA-524-2006 SCC 150] , the payment of tax receipts and mere possession for some years was found insufficient to claim adverse possession. It was held that if according to the defendant, the plaintiff was not the true owner, his possession hostile to the plaintiff's title will not be sufficient. The Court held as under: (SCC p. 158, para 19) "19. The defendant claimed that he had perfected his title by adverse possession by being in open, continuous and hostile possession of the suit property from 1957. He also produced some tax receipts showing that he has paid the taxes in regard to the suit land. Some tax receipts also showed that he paid the tax on behalf of someone else. After considering the oral and documentary evidence, both the courts have entered a concurrent finding that the defendant did not establish adverse possession, and that mere possession for some years was not sufficient to claim adverse possession, unless such possession was hostile possession, denying the title of the true owner. The courts have pointed out that if according to the defendant, the plaintiff was not the true owner, his possession hostile to the plaintiff's title will not be sufficient and he had to show that his possession was also hostile to the title and possession of the true owner. After detailed analysis of the oral and documentary evidence, the trial court and the High Court also held [Kurella Naga Druva Vudaya Bhaskara Rao v. Galla Janikamma, 2006 SCC OnLine AP 842 :
(2009) 3 ALD 416] that the appellant was only managing the properties on behalf of the plaintiff and his occupation was not hostile possession."
13. In Brijesh Kumar v. Shardabai [Brijesh Kumar v. Shardabai , (2019) 9 SCC 369 : (2019) 4 SCC (Civ) 509] , the Court held as under: (SCC p. 374, para 13) "13. Adverse possession is hostile possession by assertion of a hostile title in denial of the title of the true owner as held in M. Venkatesh [M. Venkatesh v. BDA, (2015) 17 SCC 1 : (2017) 5 SCC (Civ) 387] . The respondent had failed to establish peaceful, open and continuous possession demonstrating a wrongful ouster of the rightful owner. It thus involved question of facts and law. The onus lay on the respondent to establish when and how he came into possession, the nature of Signature Not Verified Signed by: AMAN TIWARI Signing time: 24-11-2025 08:29:30 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:29796 9 SA-524-2006 his possession, the factum of possession known and hostile to the other parties, continuous possession over 12 years which was open and undisturbed. The respondent was seeking to deny the rights of the true owner. The onus therefore lay upon the respondent to establish possession as a fact coupled with that it was open, hostile and continuous to the knowledge of the true owner. The respondent-plaintiff failed to discharge the onus. Reference may also be made to Chatti Konati Rao v. Palle Venkata Subba Rao [Chatti Konati Rao v.
Palle Venkata Subba Rao, (2010) 14 SCC 316 : (2012) 1 SCC (Civ) 452] , on adverse possession observing as follows: (SCC p. 322, para 15) '15. Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. The plea of adverse possession is not a pure question of law but a blended one of fact and law.' "
14. As to whether the plaintiff can claim title on the basis of adverse possession, this Court in a judgment Ravinder Kaur Grewal v. Manjit Kaur [ Ravinder Kaur Grewal v. Manjit Kaur , (2019) 8 SCC 729 : (2019) 4 SCC (Civ) 453] has held as under:
(SCC p. 777, para 60) "60. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. Signature Not Verified Signed by: AMAN TIWARI Signing time: 24-11-2025 08:29:30 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:29796 10 SA-524-2006 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."
15. The matter has been examined by a Constitution Bench in M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das [M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das , (2020) 1 SCC 1] wherein, it has been held that a plea of adverse possession is founded on the acceptance that ownership of the property vests in another, against whom the claimant asserts possession adverse to the title of the other. The Court held as under: (SCC pp. 703-706, paras 1142- 1143 & 1147-1150) "1142. A plea of adverse possession is founded on the acceptance that ownership of the property vests in another against whom the claimant asserts a possession adverse to the title of the other. Possession is adverse in the sense that it is contrary to the acknowledged title in the other person against whom it is claimed. Evidently, therefore, the plaintiffs in Suit 4 ought to be cognizant of the fact that any claim of adverse possession against the Hindus or the temple would amount to an acceptance of a title in the latter. Dr Dhavan has submitted that this plea is a subsidiary or alternate plea upon which it is not necessary for the plaintiffs to stand in the event that their main plea on title is held to be established on evidence. It becomes then necessary to assess as to whether the claim of adverse possession has been established.
Signature Not Verified Signed by: AMAN TIWARI Signing time: 24-11-2025 08:29:30 PMNEUTRAL CITATION NO. 2025:MPHC-GWL:29796 11 SA-524-2006 1143. A person who sets up a plea of adverse possession must establish both possession which is peaceful, open and continuous possession which meets the requirement of being nec vi nec claim and nec precario. To substantiate a plea of adverse possession, the character of the possession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. These requirements have to be duly established first by adequate pleadings and second by leading sufficient evidence. Evidence, it is well settled, can only be adduced with reference to matters which are pleaded in a civil suit and in the absence of an adequate pleading, evidence by itself cannot supply the deficiency of a pleaded case. Reading Para 11(a), it becomes evident that beyond stating that the Muslims have been in long, exclusive and continuous possession beginning from the time when the Mosque was built and until it was desecrated, no factual basis has been furnished. This is not merely a matter of details or evidence. A plea of adverse possession seeks to defeat the rights of the true owner and the law is not readily accepting of such a case unless a clear and cogent basis has been made out in the pleadings and established in the evidence.
*** 1147. In Supt. & Remembrancer of Legal Affairs v. Anil Kumar Bhunja [Supt. & Remembrancer of Legal Affairs v. Anil Kumar Bhunja, (1979) 4 SCC 274 : 1979 SCC (Cri) 1038] , R.S. Sarkaria, J. speaking for a three- Judge Bench of this Court noted that the concept of possession is "polymorphous" embodying both a right (the right to enjoy) and a fact (the real intention). The learned Judge held: (SCC p. 278, para 13) '13. ... It is impossible to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the contexts of all statutes. Dias and Hughes in their book on Jurisprudence say that if a topic ever suffered from too much theorising it is that of "possession". Much of this difficulty and confusion is (as Signature Not Verified Signed by: AMAN TIWARI Signing time: 24-11-2025 08:29:30 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:29796 12 SA-524-2006 pointed out in Salmond's Jurisprudence, 12th Edn., 1966) caused by the fact that possession is not purely a legal concept. "Possession", implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention. It involves power of control and intent to control. (See Dias and Hughes, ibid.)' These observations were made in the context of possession in Section 29(b) of the Arms Act, 1959.
1148. In P. Lakshmi Reddy v. L. Lakshmi Reddy [P. Lakshmi Reddy v. L. Lakshmi Reddy, 1957 SCR 195 :
AIR 1957 SC 314] , Jagannadhadas, J. speaking for a three-Judge Bench of this Court dwelt on the "classical requirement" of adverse possession: (AIR pp. 317-18, para 4) '4 . Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. (See Secy. of State for India in Council v. Debendra Lal Khan [Secy. of State for India in Council v. Debendra Lal Khan, 1933 SCC OnLine PC 65 : (1933-34) 61 IA 78] IA at p. 82.) The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.' The Court cited the following extract from U.N. Mitra's Tagore Law Lectures on the Law of Limitation and Prescription: (AIR p.
319, para 7) '7. ... "An adverse holding is an actual and exclusive appropriation of land commenced and continued under a claim of right, either under an openly avowed claim, or under a constructive claim (arising from the acts and circumstances attending the appropriation), to hold the land against him (sic) who was in possession. (Angell, Sections 390 and 398). It is the intention to claim adversely accompanied by such an invasion of the Signature Not Verified Signed by: AMAN TIWARI Signing time: 24-11-2025 08:29:30 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:29796 13 SA-524-2006 rights of the opposite party as gives him a cause of action which constitutes adverse possession." ' [ 6th Edn., Vol. I, Lecture VI, at p. 159] This Court held: (AIR p. 319, para 7) '7. ... Consonant with this principle the commencement of adverse possession, in favour of a person implies that the person is in actual possession, at the time, with a notorious hostile claim of exclusive title, to repel which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until he obtains actual possession with the requisite animus.' 1149. In Karnataka Board of Wakf v. Union of India [Karnataka Board of Wakf v. Union of India, (2004) 10 SCC 779] , S. Rajendra Babu, J. speaking for a two-Judge Bench held that: (SCC p. 785, para 11) '11. ... Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and
(e) his possession was open and undisturbed.' The ingredients must be set up in the pleadings and proved in evidence. There can be no proof sans pleadings and pleadings without evidence will not establish a case in law. 1150. In Annakili v. A. Vedanayagam [Annakili v. A. Vedanayagam, (2007) 14 SCC 308] , this Court emphasised that mere possession of land would not ripen into a possessory title.
Signature Not Verified Signed by: AMAN TIWARI Signing time: 24-11-2025 08:29:30 PMNEUTRAL CITATION NO. 2025:MPHC-GWL:29796 14 SA-524-2006 The possessor must have animus possidendi and hold the land adverse to the title of the true owner. Moreover, he must continue in that capacity for the period prescribed under the Limitation Act."
(emphasis in original)"
17. As no substantial question of law arises in the present appeal, accordingly, the judgment and decree dated 04.03.2006 passed by Additional District Judge, Ganjbasoda, District Vidisha in Civil Appeal No.100-A/2005, so far as it relates to Khasra number 608/1 is concerned, the same is hereby affirmed.
18. The appeal fails and is hereby dismissed.
(G. S. AHLUWALIA) JUDGE Aman Signature Not Verified Signed by: AMAN TIWARI Signing time: 24-11-2025 08:29:30 PM