Partly allowed

Parasram v. Chamaru Ram (Died) through Lrs.

Chhattisgarh HC17 Nov 2024SA/378/2010

Case brief

AI extract

What is this about?

The High Court, in the second appeal, examined the appellant's failure to prove genealogy and the illegality in applying adverse possession without valid title evidence. Finding the lower courts erred in both aspects, the HC allowed the appeal and remanded the suit for retrial to prove title and adverse possession.

What did the court decide?

Second appeal allowed; suit remitted to trial court for retrial on specific issues; parties directed to amend pleadings and add evidence; status quo modified prohibiting alienation.

Parasram Vs Chamaru Ram (Died) through Lrs. — Cheating and Forgery | Chhattisgarh HC (2024)

2024:CGHC:44742

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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Reserved on 21-08-20224 Pronounced on 18-11-2024

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SA No. 378 of 2010

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1 - Parasram S/o Suknath Ganda Aged About 60 Years R/o VillageBarbhantha, Katghora, District- Korba (C.G.), District : Korba, Chhattisgarh

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... Appellant.

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versus

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1 - Chamaru Ram (Died) Through Lrs. Nil

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1.1 - (I) Itwara Bai W/o Late Chamru Ram Aged About 56 Years R/o VillageRenki, Ward No. 16, Tahsil- Pali, District- Korba (C.G.), District : Korba, Chhattisgarh

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1.2 - (Ii) Teejram S/o Chamru Singh Aged About 36 Years R/o Village- Renki, Ward No. 16, Tahsil- Pali, District- Korba (C.G.), District : Korba, Chhattisgarh

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1.3 - (Iii) Dujbai W/o Late Jeetram Aged About 38 Years R/o Village- Sivarta, Post- Sivarta, Police Station- Dipka, District- Korba (C.G.), District : Korba, Chhattisgarh

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2 - (A) Manohar S/o Amol Aged About 43 Years Caste- Ganda, R/o VillageDevar Mohalla, Hardibazar, Tahsil- Pali,district- Korba (C.G.), District : Korba, Chhattisgarh

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2.1 - (B) Mohan S/o Amol Aged About 38 Years Caste- Ganda, R/o VillageRenki, Tahsil Pali, District- Korba, (C.G.), District : Korba, Chhattisgarh

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3 - Gokul (Died) Through His Legal Heirs As Per The Hon'ble Court Order Dated 23-06-2021

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3.1 - (A) Bhakhli W/o Late Gokul Gond Resident Of Village Bhelwadongri, Post Chodha, Via Hardi Bazar , District Korba Chhattisgarh.

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3.2 - (B) Jhakhar S/o Late Gokul Gond Resident Of Village Bhelwadongri, Post Chodha, Via Hardi Bazar , District Korba Chhattisgarh.

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3.3 - (C) Dauram S/o Late Gokul Gond Resident Of Village Bhelwadongri, Post Chodha, Via Hardi Bazar , District Korba Chhattisgarh.

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3.4 - (D) Budhiya D/o Gokul Gond Resident Of Village Chodha, Post Chodha, Via Hardi Bazar, District Korba Chhattisgarh.

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4 - Sampat Singh S/o Nanhi Aged About 40 Years Caste- Gond, R/o VillageKathrimal, Korba (C.G.), District : Korba, Chhattisgarh

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5 - (A) Budelhin (Died) (Deleted) As Per The Hon'ble Court Order Dated 2306-2021

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6 - Bahartin S/o Dhansai Aged About 43 Years Caste- Goond, R/o VillageRenki, Katghora, At Presently R/o Barbaspur, Tuman, Katghora

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7 - Aghanibai W/o Jaikap Aged About 38 Years Caste- Gond, R/o VillageRenki, Katghora, At Presently R/o Budgahniyapara, Andikachhar Hardibazar, Pali, District- Korba (C.G.), District : Korba, Chhattisgarh

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8 - (A) Munna S/o Bhagirathi Shukla R/o Nutan Colony Nearby Peepal Tree Bilaspur, DistrictBilaspur (C.G.)

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8.1 - (B) Bhupendra Kumar Shukla S/o Bhagirathi Shukla R/o VillageMahuda, Janjgir Champa (C.G.) 8.2 - (C) Narendra Shukla S/o Bhagirathi Shukla R/o Village- Mahuda, Janjgir Champa (C.G.)

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8.3 - (D) Ashwani Kumar Shukla S/o Bhagirathi Shukla R/o Village- Mahuda, Janjgir-Champa (C.G.)

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9 - State Of Chhattisgarh Through The Collector, Korba, District- Korba (C.G.)

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... Respondents

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For Appellant. : Mr. Anant Bajpai, Advocate. For Respondents : Mr. Ramakant Pandey, Advocate.

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(Hon’ble Mr. Justice Narendra Kumar Vyas)

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CAV Judgment

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The appellant/plaintiff has filed this Second Appeal under Section 100 of the Code of Civil Procedure against the impugned judgment and decree dated 16-9-2010 in Civil Appeal No 18-A/07 (Prasram Vs. Chamururam and others) passed by the learned Additional District Judge, Katghora, District Korba by which the learned First Appellate Court has dismissed the appeal arising out of judgment and decree dated 30-3-2007 passed

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by the Civil Judge, Class-I Katghora, District Korba in Civil Suit No. 50A/2002.

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The parties have been described as per their description in the suit.

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This Second Appeal has been admitted by this Court on 3-2-2021 on the following substantial questions of law.

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“1. Whether both the Courts below are justified in holding that the plaintiff is not the title holder of the suit property by recording a finding which is perverse to the record?.

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Whether both the Courts below are justified in holding that the defendants have perfected their title by way of adverse possession by recording a finding which is perverse to the record?.

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The facts as reflected from record are that the plaintiff had filed a Civil Suit mainly contending that the land situated at village Renki, Patwari Halka No.29, Tahsil Katghora bearing Khasra No. 409/1, area 16.10 acres of land which at present has been divided into Khasra No. 409/1, 409/6, 409/13 ( for sake of brevity it be referred to as ‘the suit property’). Original owner the suit property was Ghasiram who expired in the year 1954 and after his death his sole legal heir widow Ramvati was in possession of the suit property and accordingly by the order dated 18-61960 the suit land was recorded in her name. Since she was an illiterate lady, therefore, it is difficult for her to do the agricultural work, as such she employed one Daulatram to take care of her land and she started living at village Anjoripali, Tahsil Kaghora, at present Korba Tahsil. She used to come to village Renki every year where Daullat Ram was providing cereals to her for maintenance and she was satisfied with quantum of cereals given to her from the crops. It has been further contended that she had faith in Daulat Ram, therefore, she did not make

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an attempt to search the revenue record and after death of Daulatram, his brother namely Bhagirathi who is still living had started to look after the land and also providing cereals to Ramvati. It is also the case of the plaintiff that as per family tree the plaintiff and Gharsiram belong to same family. As such, present plaintiff being son of Udaynath who is brother of deceased husband of Ramvati, as such he is sole legal heir. Later on, Ramvati expired on 3-3-1996 in village Anjoripali and thereafter, when the plaintiff had gone to take over the possession of the suit property, then the defendants have objected him and stated that they have purchased the land from Bhagirathi. In fact, neither Ramvai nor Daultaram or Bhagirathi had transferred the property, therefore, there is no question of sale. The plaintiff became aware about the illegality committed by the defendants when he has received certified copy of the revenue records. Thereafter he filed a Civil Suit on 2-4-1998 for relief of possession, loss of crop and mesne profits.

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Defendants filed written statement denying the allegations made in the plaint mainly contending that widow Ramvati was the sole legal heir of suit property and rest of the averments are denied. It has also been denied that the present plaintiff is the brother of Ramvati’s husband Udaynath, as such he is the sole legal heir. It has also been denied that after death of Ramvati present plaintiff had gone to take over possession, then the defendants have objected. In fact, Ramvati had sold this property to Pandit Daulatram in Baisakhi 2005 and had given possession to them and Daulataram during his life time was doing agricultural work and after death of Daulatram, nephew of Daulatram, Bhagirathi had obtained property on partition and was doing the agricultural work. It has also been contended that Bhagirathi had sold

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property to father of defendants namely Dhansasi, Rama, Nanhe and Manbodh and thereafter they have done partition also and they are in possession of the suit property. Thus, the plaintiff has no right over the suit property and would pray for dismissal of the suit with cost.

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On the pleadings of the parties, learned trial Court has framed five issues, the relevant issues are;

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(1) whether the defendants have illegally recorded their names in the suit property and have taken illegal possession? And

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(2) whether the defendants’ title over suit property has been established on the basis of adverse possession?

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Subsequently, the trial Court has framed additional issue whether the plaintiff is entitled to be declared as title holder of the suit property and is entitled to get vacant possession of the suit property?

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The plaintiff to substantiate his stand before the trial Court has exhibited the documents of right ( Ex.P/1), copy of amended revenue record (Ex.P/2), Kistbandi Katauni (Ex.P/3, & 4), Kashra Panchasala (Ex.P/5 &6) and examined the witnesses, plaintiff himself (PW/1) and Ransay (PW/2) whereas the defendants exhibited Raharnama (Ex.D/1), sale deed (Ex.D/2). The defendants to substantiate their case have examined Chamuru (DW/1), Mukunda (DW/2) and Dhanwar (DW/3).

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Plaintiff’s witnesses have reiterated the contentions made in the plaint and in the cross examination he has denied the fact that Ghasiram had pledged property through Daulatram and he has admitted that after death of Ghasiram name of Ramvati was recorded in the revenue records and he has stated that he is not aware when Ramvati during her life time had sold property to Pandit Daulatram and the same has been

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recorded in the name of Daullatram. He has further stated that Ramvati had given the suit property to Daulatram and Bhagirathi to look after the property and this was informed to him by Ramvati. He has also stated that he belongs to Ghada caste and Parasram also belongs to same caste. He has admitted that Bhagirathi used to keep the crop for himself and voluntarily stated that Bhagirathi used to give Rs.5000/- to Ramvati from the crops. He has also stated that Bhagirathi had given money to Ramvati in front of him and he is not aware on what date he had given money to her.

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The defendants’ witnesses have reiterated the stand which they have taken in the written statement and in their evidence they have stated that Ghasiram has no legal heirs and Daulatram has purchased the property from Ramvati which was on partition given to Bhagirathhi and they have purchased the property from Bhagirathi. He has also stated that the suit property was pledged by Ghasiram vide documents (Ex.D/1) therefore he is in possession of the property and sale deed Ex.D/2 was executed.

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The record of the case would demonstrate that during evidence the defendants have submitted one page of sale deed and subsequently certified copy of sale deed was submitted before the trial Court wherein objection was raised by the plaintiff regarding their admission on the count that its secondary evidence is not admissible in the evidence. The learned trial Court while accepting the objection has recorded its finding that there is a difference between the handwriting of Bynama which was submitted earlier and subsequent certified copy. As such, it has not allowed the documents to be exhibited.

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Mukund (DW/2) was examined and he has also stated that the property was purchased by Daulatram and on partition Daulatram had given the property to Bhagirathi and thereafter Bhagirathi sold the property to Dhansai prior to 40-45 years and the same was registered in the office of Registrar of Stamps and thereafter partition has been taken place and they are in possession of their respective shares. The defendants have also stated that after doing the labour they have developed the land for agricultural purpose. This witness was extensively cross examined by the plaintiff and he has also stated that he cannot say that whether Ghasiram had pledged the property before Daulatram, but he has stated that he was present at that place and at that time he was 13 years old. He has also stated that pledge was done at Rs.1000/- and Daulatram had given Rs.1,000/- to Ghasiram for which documentation was done. This was written by Daulatram himself. He has also admitted that at the time of documentation, Charan and Ramcharan signed the papers. He has also stated that Ram Charan and Charn who are witnesses of the documentation were residents of village Renki. He has also stated that after 7-8 years of mortgage the said property was purchased by Daulatram.

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Learned trial Court vide its judgment and decree dated 30.03.2007 has dismissed the suit by recording its finding that the purchaser has taken possession of the suit property for more than 12 years, therefore, on the basis of adverse possession the title of property is inherited by the defendants. The trial Court has also dismissed the suit on account of non joinder of the necessary party, but no reason has been assigned. The trial Court has also recorded its finding that the plaintiff is unable to prove that he is the legal heir of late Ramvati. Being aggrieved with this order,

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the plaintiff has preferred First Appeal before the learned First Appellate Court which has been dismissed by the learned First Appellate Court vide its judgment and decree dated 16.09.2010 and affirmed the finding of the trial Court. The learned First Appellate Court has recorded its finding that the defendants are in possession of the suit property since 1957, therefore, they have acquired title over the suit property on the basis of adverse possession. The First Appellate Court while affirming the finding recorded by the learned trial Court that the plaintiff is unable to prove that he is the legal heir of Ramvati by assigning the reason that the plaintiff has not taken care of Ramvati in her old age and accordingly it has dismissed the appeal. Both these orders are being assailed by the appellant by filing this Second Appeal.

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The appeal has been admitted by this Court on substantial questions of law as stated above on 03.02.2021.

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Submission of parties on substantial question of law No. 1

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Learned counsel for the appellant would submit that both the learned courts below have committed illegality and recorded perverse finding that the appellant is unable to prove the genealogy and has wrongly held that the plaintiff is not the title holder of the suit property though in the Revenue Record Ex.P/1 and Ex.P/2 name of Ramvati has been recorded and since she died issueless therefore, as per Section 15(2) of Hindu Marriage Act the property will return back to the legal heirs of husband’s family members. He would further submit that the Family Tree which is part of pleading clearly demonstrate that plaintiff is the son of brother of Ramvati’s husband, thus he is title holder as such, he would pray for deciding the substantial question of law No. 1 in his favour.

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On the other hand, learned counsel for the respondents would submit that the family tree has not been proved by recording the evidence of the persons who are known to the family members of the Ramvati which is very much required to establish that he is son of brother of Ramvati’s husband. He would further submit that the plaintiff should have submitted the documents to prove the genealogy to get title over the suit property which he miserably failed to do so. He would further submit that the plaintiff to prove the genealogies has not led evidence which clearly shows special means of knowledge disclosing the exact source, time and circumstances under which knowledge is required and there must be clear and conclusive proof, thus, he would submit that the findings recorded by the learned Court’s below regarding the fact that plaintiff has failed to prove that he belongs to the family of Ramvati does not suffer from perversity or illegality and would submit that the substantial question of law No. 1 be answered against the plaintiff.

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Fidings of the Court on substantial question of law No. 1

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For proving the genealogy in a civil suit to claim title over a suit property the plaintiff has to prove the source of genealogy and its relikability, age of genealogies by examining oral evidence if genealogy is proved by oral evidence it must clearly show special means of knowledge. This fact has to be pleaded and proved by the plaintiff. The evidence was adduced by the plaintiff before the trial Court wherein he has examined plaintiff as PW/1, he has only stated that he is only legal heir of the late Ramvati and no cross examination with regard to this fact was done to rebut the said statement. The plaintiff’s other witness Ransai (PW/2) was examined before the trial Court who has not stated about details of the family of Ramvati. Thus, it is quite vivid that plaintiff has not produced any cogent

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evidence to prove the genealogy of the family which is required to claim title over the suit property. The law with regard to proving of genealogy has come up for consideration before the Hon’ble Supreme Court in case of State of Bihar Vs. Radha Krishna Singh and others {1983 SCC (3) 118} , wherein it has been held at paragraph 24 as under:-

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"24. It is well settled that when a case of a party is based on a genealogy consisting of links, it is incumbent on the party to prove every link thereof and even if one link is found to be missing then in the eye of law the genealogy cannot be said to have been fully proved. In the instant case, although the plaintiffs have produced oral and documentary evidence to show that Ramruch Singh and Debi Singh were brothers being the sons of Bansidhar Singh this position was not accepted by the trial court as also by M.M. Prasad, J. who dissented from the other two Judges constituting the Special Bench who had taken a contrary view and had held that the plaintiffs had fully proved the entire genealogy set-up in the plaint. This, therefore, makes our task easier because we need not discuss in detail the evidence and documents to show the connection of the plaintiffs upto the stage of Gajraj Singh though we may have to refer to the evidence for the purpose of deciding the main issue, viz., whether or not Gajraj Singh was the son of Ramruch Singh and Ramruch Singh a brother of Debi Singh and son of Bansidhar Singh."

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Now coming to the facts of the case and evidence brought on record it is quite vivid that the burden of prove regarding genealogy was upon the plaintiff which he has failed to do as per the requirement of law, therefore, the substantial question of law is answered against the plaintiff.

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Submission of parties on substantial question of law No. 2

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Learned counsel for the plaintiff would submit that learned trial Court on perverse finding has held that the defendants have acquired title over the suit as they are in possession of the suit property prior death of Ramvati in the year 1996 and they are in possession of the suit property in view of the sale deed which have been executed in 1949 is against the principle of adverse possession as such he would pray for answering the substantial question of law against the defendants.

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Per contra , learned counsel for the respondents would submit that they are in possession of the suit property since 1949 and the suit was filed in the year 1998 as such, it is hopelessly barred by limitation and they are sowing the land without any objection from the plaintiff that they have acquired the title on the basis of adverse possession, as such the findings recorded by both the courts below are legal, justified and would pray that the substantial question of law be answered in their favour.

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Fidings of the Court on substantial question of law No. 2

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Learned trial Court has relied upon the sale deed by referring to Ex. D/2 whereas while recording of the evidence the learned trial Court allowing the objection of the plaintiff has not allowed the said document to be exhibited, still it has taken the sale deed for consideration which is apparent mistake on the face of the record as in civil proceedings unless the documents are exhibited and marked it cannot be read in evidence. Thus, on this count alone the finding recorded by the trial Court that the respondents have acquired the title on the basis of adverse possession deserves to be set aside. Even otherwise, both the courts below have committed illegality in applying the principle of adverse possession without considering the law with regard to title on the basis of adverse possession. Hon’ble Supreme Court in case of M. Radheshyamlal vs V Sandhya and Anr. Etc {CIVIL APPEAL NOS.4322 – 4324 OF 2024 dated 18.03.2024} has held as under.

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“10. As far as the plea of adverse possession is concerned, a Constitution Bench of this Court in the case of M. Siddiq (RamJanmabhumi Temple-5 J.) v. Suresh Das {(2020) 1 SCC 1} , in paragraph 1142 and 1143 has held thus:

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“ 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 Page 6 of 13 adverse to the title of the other. Possession is adverse in the

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sense that it is contrary to the acknowledged title in the other person against whom it is claimed. Evidently, therefore, the plaintiffs in Suit No. 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.

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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 necclaim 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 Civil Appeals @ SLP (C) No. 19059-61 of 2014 Page 7 of 13 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.”(underline supplied)

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In the case of Karnataka Board of Wakf v. Govt. ofIndia and Ors.(2004) 10 SCC 779) in paragraph 11, this Court has laid down the law regarding the plea of adverse possession. Paragraph11 reads thus:

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“ 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. Nonuse 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 aright 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 well-settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, necprecario”, 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 Sakina

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[AIR1964 SC 1254] , Parsinni v. Sukhi [(1993) 4SCC 375] and D.N.Venkatarayappa v. State of Karnataka [(1997) 7 SCC 567]. 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 the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. [Mahesh Chand Sharma(Dr.) v. Raj Kumari Sharma [(1996) 8 SCC128]”(underline supplied)

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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.

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The law with regard to title on the basis of adverse possession has also come up for consideration before the Hon’ble Supreme Court in case

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Shri Uttam Chand (dead) through Legal Heirs vs. Nathu Ram (dead) through Legal Heirs {2020 (11) SCC 263} wherein Hon’ble Supreme Court has held as under :-

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In T. Anjanappa, 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:

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“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

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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.

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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 coowner can be referred to his status as co-owner, it cannot be considered adverse to other co-owners.”

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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 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:

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“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. …

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In Brijesh Kumar & Anr. v. Shardabai (Dead) by Legal Representatives & Ors.(2019) 9 SCC 369), the Court held as under:

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“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. 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

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possession, the nature of 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:

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“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.’

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As to whether the plaintiff can claim title on the basis of adverse possession, this Court in a judgment reported as Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors.(2019 8 SCC 729) has held as under:

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“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 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.”

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From the evidence, material and law with regard to adverse possession it is quite vivid that the defendants should not have denied title of the plaintiff but they have claimed the title on the basis of the sale deed which has not been proved in accordance with law, still the trial Court has committed illegality in recording its finding that the defendants have acquired title over the suit property on the basis of adverse possession. Thus the substantial question of law framed by this Court deserves to be answered in favour of the plaintiff and against the defendants.

¶107

The submission of the learned counsel for the plaintiff that the plaintiff being only legal heir of Ramvati’s husband, therefore, is entitled to inherit the suit property in view of the Section 15(2) of the Hindu Marriage Act, deserves to be rejected as both the courts below have recorded concurrent of the facts that the plaintiff is unable to prove that he is legal heir of Ramvati’s husband being son of elder brother of her husband. As such, the judgment referred to by the counsel for the appellant in case of Arunacdhala Gounder ;;(dead) by Legal Heirs vs. Ponnusamy reported in 2022 (11) SCC 520 i s not applicable to the facts of the present case.

¶108

Now, considering the factual matrix of the case and also considering the facts that the substantial question of law No. 1 has been answered against the plaintiff and substantial question of law No. 2 has been answered against the defendants, whether a case of remand is made out under Order 41 Rule 23A of the C.P.C. has to be considered by this Court. Order 41 Rule 23A provides that appellate Court may remand the suit to the trial Court when retrial is considered necessary. The record of the case would clearly demonstrate that the trial Court ignoring the principle of adverse possession has passed the decree in favour of the

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defendants by dismissing the suit of the plaintiff on the basis of adverse possession without placing any evidence, any material on record by the defendants to protect their rights on the principle of adverse possession. Similarly, the plaintiff is also unable to place on record to prove the genealogy by recording the cogent evidence. In such circumstances, this Court while hearing the second appeal can very well remand the suit for retrial on the issue Nos. 1, 3, 6, and 7 as all the issues are interconnected. The Hon’ble supreme court in case of Sirajudheen Vs Zeenath & Ors. { 2023 SCCOnline 196} has held that when remand can be justified by the High Court while hearing the Second Appeal under Section 100 of the C.P.C. and has held in para 29 as under.

¶111

“29. After having taken note of the salient features of the impugned judgment as also the significant omissions therein, if we refer to the provisions empowering the Appellate Court to make an order of remand, it is difficult to find any justification for remand by the High Court in the present case. As noticed, the scope of remand in terms of Rule 23 of Order XLI CPC is extremely limited and that provision is inapplicable because the suit in question had not been disposed of on a preliminary point. The remand in the present case could only be correlated with Rule 23-A of Order XLI CPC and for its applicability, the necessary requirements are that “the decree is reversed in appeal and a re-trial is considered necessary”. As noticed herein above, there is no reason whatsoever available in the impugned judgment as to why and on what basis the decree was reversed by the High Court. Obviously, the reversal has to be based on cogent reasons and for that matter, adverting to and dealing with the reasons that had prevailed with the Trial Court remains a sine qua non. Thus, remand in the present case cannot be held justified even in terms of Rule 23-A of Order XLI CPC.”

¶112

In light of the above stated position of law and the material placed before it, the Second Appeal is party allowed and the matter is remitted back to the learned trial Court for deciding the issue Nos. 1,3,6 and 7 afresh however, the appellant and respondents are at liberty to amend their

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pleadings and also place on record the evidence on the these issues afresh. The appellant and respondents are directed to appear before the trial Court on 10.01.2025. The trial Court will make endeavour to complete the trial within an outer limit of 1 years 6 months from the date of first appearance. It is also directed that the plaintiff and defendants will cooperate with the trial Court for disposal of the suit and will not adopt delay tactics. The interim order of status quo passed by this Court on 14.12.2021 is modified by directing the parties not to alienate or mortgage the suit property till disposal of the suit by the trial Court.

¶115