Second appeal dismissed plaintiff's claim of adverse possession over ancestral property. High Court held that family members cannot claim adverse possession against each other lacking animus toestare. Trial Court decree restored.
Second appeal allowed; judgment and decree of first appellate Court set aside; trial Court decree restored.
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.
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No.89 of 2009
Sukutri Bai W/o Bhuwan Singh, aged about 64 years,
D/o Rupsai, R/o village Bhadaura, Tahsil Pendra Road,
District Bilaspur (CG) (correct address – village
Pakaria, Tahsil Pendra Road, District Bilaspur (CG)
---- Appellant/Defendant No.5
Versus1. Surji Bai D/o Rupsai, W/o Manglu, Caste Rathore, Agriculturist, R/o Village Bacharwar, Tahsil Pendra Road, District Bilaspur (CG)
---- Plaintiff
2. Hiranjiya widow of Rupsai, R/o village Madarwani,
---- Defendant No.13. Durga Bai D/o Rupsai, Minor through natural Guardian Mother Hiranjiya Bai
---- Defendant No.24. Bhallu S/o Rupsai, Minor thorugh natural guradian Mother Hiranjiya
---- Defendant No.35. Durapiya Bai D/o Rupsai, Minor through natural guardian Mother Hiranjiya
---- Defendant No.46. Sonwati W/o Nanhu Rathore, D/o Rupsai, R/o village Lalpur
---- Defendant No.67. Kulsibai W/o Lallu Rathore, D/o Rupsai, R/o village Lalpur
---- Defendant No.78. Jamuna s/o Rupsai, aged about 27 years, R/o Madarwani, Tahsil Pendra Road, District Bilaspur (CG)
---- Defendant No.8All are resident of Tahsil Pendra Road, District Bilaspur (CG)9. State of C.G., through the Collector Bilaspur, District Bilaspur (CG)
---- Defendant No.92
For Appellant/Defendant No.5: Mr.Rakesh Pandey, Advocate
For Respondent No.9 : Mr.Rahul Jha, Govt.Advocate
For other respondents : None present
Hon'ble Shri Justice Sanjay K. Agrawal
Judgment on Board
05.02.2020
1. The substantial question of law involved, formulated and to be answered in this second appeal preferred by the appellant/defendant No.5 is as under:-
“Whether the Court below has erred in holding that respondent No.1 has perfected her title by way of adverse possession ?”[For the sake of convenience, parties would be
referred hereinafter as per their status shown and
ranking given in the suit before the trial Court].
2. The suit property was originally ancestral property in
the hands of Rupsai. The plaintiff is one of the
daughter of Rupsai, who filed a suit for declaration
of title, ownership on the basis of adverse possession
and permanent injunction stating inter-alia that she
was gharjiha daughter of Rupsai and for her livelihood
the suit land was given to her 30-35 years prior to
filing of the suit and as such, she has perfected her
title by way of adverse possession. In that suit, the
plaintiff has impleaded Rupsai, her father as party
3
defendant, but during pendency of the suit, he died
and his legal representatives i.e. widow, sons and
daughters were brought on record.
3. The defendants filed their written statement and denied the averments made in the plaint stating interalia that the suit property is ancestral property in the hands of Rupsai and after death of Rupsai, all the daughters have also limited right over the property of their father.
4. The trial Court after appreciating oral and
documentary evidence available on record, by its
judgment and decree dated 7.3.2001, dismissed the suit
holding that the suit property is ancestral property
of the parties and it was only given to the plaintiff
for cultivation. On appeal being preferred by the
plaintiff, the first appellate Court decreed the suit
holding that the plaintiff is in possession over the
suit land for 30 years and has perfected her title by
way of adverse possession. Questioning the judgment
and decree of the first appellate Court, this second
appeal under Section 100 of the CPC has been filed by
the appellant/defendant No.5, in which substantial
question of law has been formulated, which has been
set-out in the opening paragraph of this judgment.
5. Mr.Rakesh Pandey, learned counsel for the
4
appellant/defendant No.5, would submit that the first
appellate Court is absolutely unjustified in holding
that the plaintiff has perfected her title by way of
adverse possession, which is a perverse finding, as
such, finding recorded by the first appellate Court
deserves to be set aside.
6. None present for respondents No.1 to 8 though served.
7. I have heard learned counsel for the appellant, considered his submissions made hereinabove and also went through the records with utmost circumspection.
8. The question for consideration would be, whether the plaintiff has perfected her title by way of adverse possession over the suit land ?
9. The Supreme Court in the matter of Karnataka Board of Wakf v. Government of India and others 1 has laid down the requirements for pleading and establishing necessary facts to establish his adverse possession. Para-11 of the report states as under:-
“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 possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a wellsettled principle that a party claiming1 (2004) 10 SCC 779
5
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. (See : S M Karim v. Bibi Sakina2 , Parsinni v. Sukhi3 and D. N. Venkatarayappa v. State of Karnataka4 ). 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. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Dr. Mahesh Chand Sharma v. Raj Kumari Sharma5 ).”
10. The principle of law laid down in Karnataka Board of Wakf (supra) has recently been followed by the Supreme Court in the matter of Ravinder Kaur Grewal and others v. Manjit Kaur and others 6, in which it was held as under:-
2 1964 SC 1254
3 (1993) 4 SCC 375
4 (1997) 7 SCC 567
5 (1996) 8 SCC 128
6 (2019) 8 SCC 729
6
“56. There is the acquisition of title in
favour of plaintiff though it is negative
conferral of right on extinguishment of the
right of an owner of the property. The
right ripened by prescription by his
adverse possession is absolute and on
dispossession, he can sue based on “title”
as envisaged in the opening part under
Article 65 of Act. Under Article 65, the
suit can be filed based on the title for
recovery of possession within 12 years of
the start of adverse possession, if any,
set up by the defendant. Otherwise right to
recover possession based on the title is
absolute irrespective of limitation in the
absence of adverse possession by the
defendant for 12 years. The possession as
trespasser is not adverse nor long
possession is synonym with adverse
possession.
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 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
7
rights based on possession.
61. Adverse possession is heritable and
there can be tacking of adverse possession
by two or more persons as the right is
transmissible one. In our opinion, it
confers a perfected right which cannot be
defeated on re-entry except as provided in
Article 65 itself. Tacking is based on the
fulfillment of certain conditions, tacking
may be by possession by the purchaser,
legatee or assignee, etc. so as to
constitute continuity of possession, that
person must be claiming through whom it is
sought to be tacked, and would depend on
the identity of the same property under the
same right. Two distinct trespassers cannot
tack their possession to constitute
conferral of right by adverse possession
for the prescribed period.”
11.Reverting to the facts of the present case in
light of principle of law laid down by the Supreme
Court in the above-stated judgments (supra), it is
quite vivid that the suit property was admittedly
ancestral property in the hands of Rupsai including
the plaintiff and defendant No.5, in which sons and
daughters of Rupsai had right to partition though the
appellant/defendant No.5 and the plaintiff have
limited right over the share of their father in the
ancestral property. Not only this, the plaintiff has
failed to plead and establish that on what date she
came into possession, what was the nature of her
possession, whether the factum of possession was known
to other party, how long her possession has continued
8
and her possession was open and undisturbed.
12. The Supreme Court in the matter of Nanjegowda alias Gowda (Dead) by Legal Representatives and another v. Ramegowda 7 has held that there cannot be adverse possession amongst members of one family for want of animus among them over land belonging to their family.
13. As such, the first appellate Court is absolutely unjustified in decreeing the suit of the plaintiff by granting appeal. Accordingly, the judgment and decree of the first appellate Court is hereby set aside and that of the trial Court is hereby restored. The substantial question of law is answered in favour of the defendants and against the plaintiff.
14. The second appeal is allowed to the extent indicated hereinabove. No cost(s).
15. Decree be drawn-up accordingly.
Sd/-
(Sanjay K.Agrawal)
Judge
7 (2018) 1 SCC 574
3 issues framed by the court
Whether the Court below erred in holding that respondent No.1 has perfected her title by way of adverse possession over ancestral family property?
Whether adverse possession can be claimed amongst members of one family for want of animus among them over land belonging to their family?
Whether the plaintiff failed to establish the essential elements of adverse possession regarding date, nature, and continuity of possession?
Colour shows how this judgement treated each authority
Karnataka Board of Wakf v. Government of IndiaFollowed¶9
(2004) 10 SCC 779 · Who else cites this
S M Karim v. Bibi SakinaReferred¶9
(1964) SC 1254
Parsinni v. SukhiReferred¶9
(1993) 4 SCC 375 · Who else cites this
D. N. Venkatarayappa v. State of KarnatakaReferred¶9
(1997) 7 SCC 567 · Who else cites this
Dr. Mahesh Chand Sharma v. Raj Kumari SharmaReferred¶9
(1996) 8 SCC 128 · Who else cites this
Ravinder Kaur Grewal and others v. Manjit Kaur and othersFollowed¶10
(2019) 8 SCC 729 · Who else cites this
Nanjegowda alias Gowda (Dead) by Legal Representatives and another v. RamegowdaApplied¶12
(2018) 1 SCC 574 · Who else cites this
2 provisions across 2 enactments
Sukutri Bai
Surji Bai
Sanjay K. Agrawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court