The High Court of Chhattisgarh dismissed the second appeal, affirming the lower courts' decision holding the defendant an encroacher. The court ruled that possession under an agreement to sale cannot be adverse.
Second Appeal dismissed; decree of Trial Court affirmed; four months' time granted to vacate premises.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
SA No. 322 of 2007
1. (1) Smt. Rajkumari, Wd/o Late Mohanlal, Aged about 62 Years,
1. (2) Narayandas, S/o Late Mohanlal, Aged about 34 Years,
1. (3) Bhimsen Tulsani, S/o Late Mohanlal, Aged about 32 Years,
1. (4) Bhojraj Tulsani, S/o Late Mohanlal, Aged about 28 Years,
1. (5) Anil Tulsani, S/o Late Mohanlal, Aged about 26 Years,
1. (6) Kum. Dipti Tulsani D/o Late Mohanlal, Aged about 23
1. (7) Smt. Asha Bodhani, W/o Shri Santosh Kumar Bodhani, Aged about 36 Years, R/o Jhulelal Stores, Old Bus Stand, Dhamtari, (Chhattisgarh)
1. (8) Smt. Dropadi Sawani, W/o Shri Vijay Kumar Sawani, Aged about 30 Years, R/o House No. 1136/18 Jawahar Nagar, Durg, (Chhattisgarh)
1. (9) Smt. Deepa Belani, W/o Shri Rajkumar Belani, R/o Infront of Pankaj Garden, Raipur (Chhattisgarh)
---- Appellants
Versus
1. (1) Smt. Tara Bai Dakne, W/o Late Ram Prasad Dakne, Aged about 50 Years,
1. (2) Dattaram Dakne, S/o Late Chamriya Dakne, Aged about 34 Years,
1. (3) Mehta Bai, W/o Late Chamariya Dakne, Aged about 60 Years, R/o Village Kolihyatola, Post Badsena, Tahsil Ambagarh Chowki, District Rajnandgaon (Chhattisgarh)
1. (4) Uma Bai W/o Keshav Meshra, R/o Village Tadegaon, Tahsil Kulkeda, Distt. Garchiroli (Maharashtra)
1. (5) Sushila Bai, W/o Vinayak Veragare, R/o Village Ramgarh, Tahsil Kulkeda, Distt. Garchiroli (Maharashtra)
S.A. No. 322 of 2007
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1. (6) Rama Bai, W/o Chamariya Meshram, R/o Village Sinraitoal, Tahsil Ambagarh Chowki, Distt. Rajnandgaon (Chhattisgarh)
1. (7) Madhu W/o Dev Rao @ Deva Borkar, R/o Village Dadapur, Tahsil Kulkeda, Distt. Garchiroli (Maharashtra)
1. (8) Bhagwati W/o Surendra Meshram, R/o Village Mongara, Tahsil Ambagarh Chowki, Distt. Rajnandgaon (Chhattisgarh)
---- Respondents
For Appellants/Defendants : Shri Malay Shrivastava, Advocate For Respondents/Plaintiffs : Shri Anup Majumdar, Advocate
Hon'ble Shri Justice Sanjay K. Agrawal
Order on Board
15/09/2016
“(i) Whether the suit filed by the plaintiff is barred by limitation?
(ii) Whether the Courts below passed the judgment and decree as per the provisions of the Chhattisgarh Accommodation Control Act, 1961?
(iii) Whether the learned Appellate Court is justified in dismissing the application under Order 41 Rule 25 of the Code of Civil Procedure?
(iv) Whether the Courts below are justified in decreeing the suit of the plaintiff without providing or declaring the title of the plaintiff over the suit house?”
S.A. No. 322 of 2007
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2.1. The respondent/plaintiff filed a suit for recovery of possession and also damages against the defendant stating inter-alia that on account of friendship, he had given the suit accommodation to the defendant for residential purpose as a licensee as he has promised to vacate the suit accommodation after construction of his house and he promised to pay Rs.150/- per month as damages/rent from the month of October, 2001 and the defendant is neither paying rent nor vacating the suit accommodation though the notice was served, therefore, the decree be granted in his favour for recovery of possession and damages.
2.2. The defendant filed written statement stating inter alia that suit accommodation was later on sold to the defendant in the year 1971 for consideration of Rs.16,000/- and the possession was handed over to him and the defendant is in possession as owner of the suit accommodation for last 12 years, therefore, he has perfected his title over the suit accommodation by way of adverse possession.
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Court. Against which the Second Appeal has been preferred in which substantial questions of law have been formulated and incorporated in the opening paragraph of this judgement.
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“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
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acknowledgement and recognition of the title of the vendor which excludes the theory of adverse possession. The well settled rule of law is that if a 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 the claims under another title having regard to the well-recognised policy of law that possession is never considered adverse if it is 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 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.”
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Gaffar and Another2, the Supreme Court has held that the plea of adverse possession is inconsistent with the plea of retention of possession under Section 53-A of the Transfer of Property Act and held as under in para 4 of the judgement.
“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 of 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.”
In view of the above stated legal position, the defendant cannot succeed on the plea of adverse possession.
2 (1996) 1 SCC 639
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Sd/-
( Sanjay K. Agrawal ) JUDGE
Kvr
3 issues framed by the court
Whether the Courts below are justified in dismissing the application under Order 41 Rule 25 of the Code of Civil Procedure?
Whether the Courts below are justified in decreeing the suit without declaring the title of the plaintiff over the suit house?
Whether a person claiming possession under an agreement to sale can claim adverse possession?
Colour shows how this judgement treated each authority
Achal Reddi Vs. Ramakrishna Reddiar and othersReferred¶10
AIR 1990 SC 553 · Who else cites this
Mohanlal Sindhi (Dead) Through LRs.
Chamariya (Dead) Through LRs.
Sanjay K. Agrawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
