The Chhattisgarh High Court dismissed an appeal against a decree granting title based on adverse possession. The court held that possession under an invalid sale deed is prima facie adverse, and the plaintiff perfected title after 12 years of continuous possession.
Decree of trial and first appellate courts reaffirmed; second appeal dismissed.
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.
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AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR Second Appeal No. 439 of 2006
Ramdulare Singh, Aged about 67 years, S/o Bahoran
Singh, Caste Kshatriya, Occupation – Agriculture,
R/o Village Pacheda, Tahsil and District Janjgir-
Champa, Chhattisgarh.
---Appellant/Defendant
Versus
1. Nawal Singh, Aged about 57 years, S/o Late Jhaduram, Caste Suryawanshi, R/o Village Siuad, Tahsil Janjgir, District Janjgir-Champa, Chhattisgarh.
---Plaintiff
2. State of Chhattisgarh, Through Collector, District Janjgir-Champa, Chhattisgarh.
---Respondents
For Appellant :- Mr. Raghvendra Pradhan, Advocate
For Respondent No. 1:- Mr. Manoj Paranjpe and
Mr. Anurag Singh, Advocates
For State :- Mr. Rahul Jha, Govt. Advocate
Hon'ble Shri Justice Sanjay K. Agrawal Judgment on Board
10/01/2020
1.This second appeal preferred by the
appellant/defendant was admitted for hearing
on the following substantial question of
law :-
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“Whether both the Courts below are
justified in granting the decree of
declaration of title and permanent
injunction on the basis of adverse
possession in favour of the plaintiff
by recording a finding which is
perverse to the record ?”
(For the sake of convenience, parties would be referred hereinafter as per their status and ranking shown in the suit before the trial Court. )
2. Suit land bearing Khasra No. 381 area 1.76 acres was originally owned by the defendant Ramdulare Singh. Original plaintiff – Jhaduram initially filed a civil suit for declaration of title and permanent injunction but subsequently, also sought for the relief of correction of sale deed (Ex. P/13) stating inter alia that he purchased the suit land from the defendant vide registered sale deed dated 31/03/1977 (Ex. P/13) on payment of cash consideration of ₹ 2,000/- and thereby, he came into possession of the said suit land which he has been cultivating ever since and has also been paying property tax and water tax, however, on 17/06/1991, Jhaduram requested one Teejram to cultivate the suit
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land, but Teejram was stopped by Golan Singh
and Jai Singh and subsequently, plaintiff
inquired from the patwari, then only, he came
to know that instead of Khasra No. 381 area
1.76 acres, defendant has mentioned the land
bearing Khasra No. 967/2 area 1.52 acres and
Khasra No. 1010 area 0.40 decimal in the sale
deed dated 31/03/1977 (Ex. P/13) which he has
executed in plaintiff's favour and when he
inquired, he also found out that Khasra No.
967/2 area 1.52 acres and Khasra No. 1010 area
0.40 decimal is in possession of one Foolsai.
Immediately thereafter, plaintiff requested
the defendant for correction of the sale deed
(Ex. P/13), but the defendant denied stating
that he has alienated the land mentioned in
the sale deed itself in favour of the
plaintiff. It was further pleaded that
original plaintiff – Jhaduram has been in
possession of the suit land since 1977 i.e.
for 15 years and after his death, his son -
Nawal Singh i.e. the present plaintiff has
been in possession of the suit land, as such,
he has perfected his title over the suit land
by way of adverse possession, therefore, he is
entitled for decree for declaration of title
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on the basis of adverse possession, permanent
injunction and additional relief of correction
of sale deed (Ex. P/13) as claimed by him.
3. Defendant filed his written statement and set up a plea that he has, in fact, sold the land bearing Khasra No. 967/2 area 1.52 acres and Khasra No. 1010 area 0.40 decimal to the
plaintiff and not sold Khasra No. 381 area
1.76 acres as claimed by him.
4. Learned trial Court, upon appreciation of oral and documentary evidence on record, came to the conclusion that defendant showed the suit land bearing Khasra No. 381 area 1.76 acres to the plaintiff and obtained cash consideration of ₹ 2,000/-, but thereafter, executed the sale deed (Ex. P/13) after mentioning Khasra No. 967/2 area 1.52 acres and Khasra No. 1010 area 0.40 decimal in favour of the plaintiff and further recorded a finding that plaintiff has been in continuous, long, undisturbed and hostile possession of the suit land (Khasra No. 381 area 1.76 acres) and therefore, he has perfected his title by way of adverse possession and accordingly, vide its judgment and decree dated 16/12/2004, decreed the suit of the plaintiff and granted decree for
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declaration of title and permanent injunction
in his favour.
5.On appeal being preferred by the defendant,
learned first appellate Court, vide its
judgment and decree dated 31/03/2006,
dismissed the appeal and affirmed the judgment
and decree of the trial Court against which
this second appeal under Section 100 of the
CPChasbeenpreferredbythe
appellant/defendant in which substantial
question of law has been framed and set out in
the opening paragraph of this judgment.
6.Mr. Raghvendra Pradhan, learned counsel for
the appellant/defendant would submit that both
the Courts below have concurrently erred in
granting decree in favour of the plaintiff
ignoring the fact that the possession of
plaintiff was permissive in nature as pleaded
by the plaintiff himself, therefore, decree
for declaration of title could not have been
granted in his favour. He would rely upon the
decision rendered by the Supreme Court in the
matter of Deva (dead) through Lrs. v. Sajjan
Kumar (dead) by Lrs.1to strengthen his
submission that mere long possession of the
1 (2003) 7 SCC 481
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plaintiff for a period of more than twelve
years without intention to possess the suit
land adversely to the title of the defendant
and to the latter's knowledge cannot result in
acquisition of title by the plaintiff upon the
suit land.
7. Mr. Manoj Paranjpe, learned counsel for the
respondent/plaintiffwouldsubmitthat
plaintiff has been in possession of the suit
land bearing Khasra No. 381 area 1.76 acres
pursuant to the sale deed dated 31/03/1977
(Ex. P/13) executed in his favour by the
defendant. It may be an invalid conveyance,
but the fact remains that he was placed in
possession of the suit land on 31/03/1977 and
since then, he has been in possession till the
date of filing of the suit i.e. 24/06/1991 and
is still continuing his possession which
totals to more than 12 years therefore, the
nature of his possession would be adverse, as
such, the trial Court is absolutely justified
in holding that plaintiff has perfected his
title over the suit land by way of adverse
possession and subsequently, rightly granted
decree in his favour which has further been
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affirmed by the first appellate Court. The
second appeal, thus, deserves to be dismissed.
8.I have heard learned counsel for the parties,
considered their rival submissions made
herein-above and went through the records with
utmost circumspection.
9. It is the case of the plaintiff that defendant showed him the land bearing Khasra No. 381 area 1.76 acres and agreed to sell the said land to him for which he also obtained a cash consideration of ₹ 2,000/- and executed the sale deed on 31/03/1977 (Ex. P/13) and placed him in possession of Khasra No. 381 area 1.76 acres which he has been cultivating ever since, but later he got to know that the conveyance executed in shape of the sale deed (Ex. P/13) does not consist of the land which was intended to be conveyed to him i.e. Khasra
No. 381, instead Khasra No. 967/2 and Khasra
No. 1010 is mentioned therein which is
apparently held by one Foolsai.
10.Both the Courts below have recorded a finding
that plaintiff has been in possession of the
suit land bearing Khasra No. 381 area 1.76
acres since the date of execution of the sale
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deed i.e. 31/03/1977 though the said sale deed
did not state the sale of Khasra No. 381.
11.The question that arises for consideration
would be whether the nature of possession of
the plaintiff would be adverse or permissive
in the present case wherein the plaintiff was
placed in possession of the suit land bearing
Khasra No. 381 area 1.76 acres pursuant to the
execution of the invalid sale deed/title deed
(Ex. P/13), but the said conveyance did not
state the land to be Khasra No. 381 area 1.76
acres ?
12.In this regard, first of all, the decision
renderedbytheCourtofJudicial
Commissioner, Nagpur in the matter of Mt.
Kasturi v. Baliram and Deokisan2 is pertinent
to notice wherein it has been held that where
the intended conveyance is void from the
commencement and for whatever cause, and
possession is taken on the intended
conveyance, the possession is adverse and
after twelve years ripens into a good title.
13.The Constitution Bench of the Supreme Court in
the matter of Collector of Bombay v. Municipal
Corporation of the city of Bombay and Ors.3 has
2 AIR 1924 Nag 222
3 AIR 1951 SC 469
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held that if the possession of a person
continues without any legal title, such
possession not being referable to any legal
title is prima facie adverse to the owner from
the very moment that person takes possession
under the invalid grant. Paragraph 19 of the
report states as under :-
“19. The Crawford Market site has been
in the possession of the Municipal
Corporation for over 60 years under an
invalid grant, a term of which was that
no rent should be charged. We are not
concerned now with any question of
ejectment or determination of tenancy.
Could it be said that the right to levy
assessment on the land, enjoyed without
any payment of any kind so far, was
lost by adverse possession ? I find it
difficult to give an affirmative
answer. Before a right could be said to
be acquired or lost by adverse
possession, it must have been the
subject of possession by a man without
title as against the person with the
rightful title. Right to levy
assessment is a prerogative right of
the Government and it is hard to
conceive of a case where it could be
said to be lost by adverse possession.
True, there can be adverse possession
of a limited right like that of a
mortgagee or a lessee or even a
permanent tenant, but still a right
must have been enjoyed by the possessor
adversely to the claim of the true
owner. It is unnecessary to go into the
wider question whether the denial of
the right to levy assessment and
possession of property coupled with
this denial for over a period of 60
years will negative that right; it is
sufficient to say that no right to levy
assessment was exercised in the case
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before us before March, 1938, and the
denial was only afterwards.”
14.Thereafter, in the matter of State of West
Bengal v. The Dalhousie Institute Society4,
their Lordships of the Supreme Court followed
the principle of law laid down in Collector of
Bombay (supra) and held that where grant of
land in favour of a particular person or an
Institute is not in a manner required by law
and it is established that grantee was in
open, continuous and uninterrupted possession
for over 60 years on the basis of invalid
grant, the person in such possession acquires
title by adverse possession which has been
observed in paragraphs 16 and 17 as under :-
“16. There is no material placed
before us to show that the grant has
been made in the manner required by
law though as a fact a grant of the
site has been made in favour of the
Institute. The evidence relied on by
the Special Land Acquisition Judge and
theHighCourtalsoclearly
establishes that the respondent has
beeninopen, continuousand
uninterrupted possession and enjoyment
of the site for over 60 years. In this
respect the material documentary
evidence referred to by the High Court
clearlyestablishesthatthe
respondent has been treated as owner
of the site not only-by the
Corporation,butalso bythe
Government. The possession of the
respondent must have been on the basis
of the grant made by the Government,
4 AIR 1970 SC 1778
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which, no doubt, is invalid in law. As
to what exactly is the legal effect of
such possession has been considered by
this Court in Collector of Bombay v.
Municipal Corporation of the City of
Bombay, 1952 SCR 43 = (AIR 1951 SC
469) as follows:
“...the position of the respondent
Corporation and its predecessor in
title was that of a person having no
legal title but nevertheless holding
possession of the land under colour of
an invalid grant of the land in
perpetuity and free from rent for the
purpose of a market. Such possession
not being referable to any legal title
it was prima facie adverse to the
legal title of the Government as owner
of the land from the very moment the
predecessor in title of the respondent
Corporation took possession of the
land under the invalid grant. This
possession has continued openly, as of
right and uninterruptedly for over 70
years and the respondent Corporation
has acquired the limited title to it
and its predecessor in title had been
prescribing for during all this
period, that is to say, the right to
hold the land in perpetuity free from
rent but only for the purposes of a
market in terms of the Government
Resolution of 1865....”
17. The above extract establishes that
a person in such possession clearly
acquires title by adverse' possession.
In the case before us there are
concurrent findings recorded by the
High Court and the Special Land
Acquisition Judge in favour of the
respondent on this point and we agree
with those findings. ”
15.The principle of law enunciated in Collector
of Bombay(supra) and Dalhousie Institute
Society(supra) has further been reiterated
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and followed by the Supreme Court in
Achal Reddi v. Ramakrishna Reddiar and Ors.5.
Paragraph 9 of the judgment states as under :-
“9. … 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
animusandonthedistinct
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
transfereeaftergettinginto
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 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. Muthiah, (ILR
(1965) 1 Mad 254) (supra) cannot,
therefore, be doubted.”
5 AIR 1990 SC 553
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16.Likewise, the law laid down in Dalhousie
Institute society (supra) was followed with
approval in the recent decision of the Supreme
court in the matter of Ravinder Kaur Grewal
and Ors. v. Manjit Kaur and Ors.6 Wherein their
Lordships have laid down three classic
requirements of adverse possession which
states as under :-
“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., 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 large 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.”
6 (2019) 8 SCC 729
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17.The Madhya Pradesh High Court, in the matter
of Bala S/o Dola v. Heeralal S/o Urajan and
Ors.7 has considered the question as to whether
the possession of the defendants commencing
under an invalid deed of transfer of title
would be adverse and has concluded it in
paragraphs 9 and 11 as under :-
“9. The next question is whether the possession of the defendants commencing under an invalid deed of transfer of title would be adverse. The learned counsel for the appellant submits that such possession must be deemed to be permissive because unless and until the transfer was validated it must be deemed that the person in possession was holding under the rightful owner. There is no warrant for such a proposition. It has been held in Peer Khan vs. Hamirsingh , 1979-1 MPWN 58 , that possession commencing under invalid deed of transfer can be adverse. In Peer Khan this Court relied on the law laid down by the Apex Court in State of W. B. vs. The dalhousie Institute Society , AIR 1970 SC 1778 . The possession was held under a grant which was not shown to have been made in the manner required by law. Quoting from an earlier decision in Collector of Bombay vs. Municipal Corporation of the City of bombay , AIR 1951 SC 469 , their Lordships stated the law by saying that a person having no legal title, but nevertheless holding possession of the land under colour of an invalid grant, such possession not being referable to any legal title is prima facie adverse to the owner from the very moment of taking possession of the land under the invalid grant. The view is consistent with the dictum of their Lordships of the Supreme court in
7 1988 M.P.L.J. 781
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Nair Service Society Ltd. vs. K. C. Alexander, AIR 1968 SC 1165 , wherein it was held that "A person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner; and if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the Statute of Limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title.
11. It, therefore, follows that where a
person holds possession under an
invalid deed of transfer of title, he
holds in, and prescribes, his own title
as an owner. It cannot be said that he
holds under the previous owner by
permission. Hence his possession is
hostile from the first day.”
18.Thus, from the above-stated principle of law
enunciated by the Supreme Court in the
aforesaid judgments, it is quite vivid that
possession of a person under invalid grant
cannot be treated as permissive in nature, his
possession will be adverse to the original
owner and the person who has been in
continuous possession for more than 12 years
under invalid grant can be said to have been
perfected his title by way of adverse
possession and he can, therefore, claim such a
right.
19.Reverting back to the facts of the present
case in light of the aforesaid legal analysis,
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both the Courts below have clearly held that
plaintiff has been in continuous possession of
the suit land bearing Khasra No. 381 area 1.76
acres for more than 12 years pursuant to the
sale deed (Ex. P/13) and it is in the
knowledge of the defendant though the
conveyance was not executed as intended by him
and plaintiff has been in possession of the
suit land under invalid grant and has
perfected his title by way of adverse
possession fulfilling the three classic
requirements i.e. adequate in continuity,
adequate in publicity and adverse to a
competitor/defendant, in denial of title and
his knowledge as held in Ravinder Kaur Grewal
(supra). In view of this finding, the trial
Court granted decree for declaration of title
and permanent injunction in favour of the
plaintiff which was then affirmed by the first
appellate Court. I do not find any perversity
or illegality in the said finding recorded by
both the Courts below. The judgment relied
upon by Mr. Raghvendra Pradhan, learned
counsel for the appellant/defendant is, thus,
clearly distinguishable.
20.As a fallout and consequence of the above
discussion, the judgment and decree of the
trial Court as affirmed by the first appellate
Court is hereby reaffirmed by this Court. The
second appeal deserves to be and is
accordingly dismissed leaving the parties to
bear their own cost(s).
21.Decree be drawn-up accordingly.
Sd/-
(Sanjay K. Agrawal)
Judge
Harneet
2 issues framed by the court
Whether courts below were justified in granting declaration of title based on adverse possession where possession started under an invalid sale deed?
Whether possession under an invalid conveyance is permissive or adverse when the grantee continues possession openly for over 12 years?
Colour shows how this judgement treated each authority
Deva (dead) through Lrs. v. Sajjan Kumar (dead) by Lrs.Distinguished¶33
Deva (dead) through Lrs. v. Sajjan Kumar (dead) by Lrs.
Mt. Kasturi v. Baliram and DeokisanReferred¶53
Mt. Kasturi v. Baliram and Deokisan
Collector of Bombay v. Municipal Corporation of the city of Bombay and Ors.Explained¶56
Collector of Bombay v. Municipal Corporation of the city of Bombay and Ors.
State of West Bengal v. The Dalhousie Institute SocietyFollowed¶65
State of West Bengal v. The Dalhousie Institute Society
Achal Reddi v. Ramakrishna Reddiar and Ors.Followed¶75
Achal Reddi v. Ramakrishna Reddiar and Ors.
Ravinder Kaur Grewal and Ors. v. Manjit Kaur and Ors.Explained¶79
Ravinder Kaur Grewal and Ors. v. Manjit Kaur and Ors.
Bala S/o Dola v. Heeralal S/o Urajan and Ors.Explained¶83
Bala S/o Dola v. Heeralal S/o Urajan and Ors.
Peer Khan vs. HamirsinghReferred¶83
Peer Khan vs. Hamirsingh
Nair Service Society Ltd. vs. K. C. AlexanderReferred¶86
Nair Service Society Ltd. vs. K. C. Alexander
Annamalai v. MuthiahReferred¶76
Annamalai v. Muthiah
1 provisions across 1 enactments
Ramdulare Singh
Nawal Singh
State of Chhattisgarh
Sanjay K. Agrawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court