Khemu Ram (Dead) Through Lrs. Vs Mehtar and Ors.

3 - Minor Nageshwar S/o Late Dinuram Aged About 15 Years 4 - Minor Jageshwar S/o Late Dinuram Aged About 13 Years Both Respondents No.3 & 4 Through natural guardian Mother Smt. Sumitra Bai, Wd/o Dinuram.

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All the appellants are R/o Jhuranadi, Tahsil Chhuikhadan, District, Rajnandgaon Chhattisgarh.

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5 - Rambai D/o Jethuram Aged About 57 Years R/o Gopalpur, Tahsil, Chhuikhadan, District, Rajnandgaon, Chhattisgarh.

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6 - Jamnabai W/o Jethuram Aged About 74 Years R/o Jhuranadi, Tahsil Chhuikhadan, District, Rajnandgaon, Chhattisgarh.

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... Appellants

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versus

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1 - Mehtar S/o Late Ram Prasad Lodhi Aged About 64 Years

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2 - Sukhiram S/o Mastram Aged About 60 Years

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3 - Brijlal S/o Mastram Aged About 54 Years

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4 - Santosh S/o Mastram Aged About 47 Years

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5 - Smt. Basan Bai D/o Mastram Aged About 57 Years

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Respondents No.2 to 5 (Legal Heirs of Defendant No.2.), All are R/o village Jhuranadi, Tahsil Chhuikhadan, Distt. Rajnandgaon, Chhattisgarh.

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6 - State of Chhattisgarh Through Collector, Rajnandgaon, Civil & Revenue District : Rajnandgaon, Chhattisgarh.

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... Respondent(s)

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For Appellants : Shri Amit Kumar, Advocate. For Respondent No.1 : Shri Rahul Kumar, Advocate. For State : Shri Tarkeshwar Nande, Panel Lawyer.

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Hon’ble Shri Justice Ravindra Kumar Agrawal, J

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Judgment on Board

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13.11.2025

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2

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1. The instant Second Appeal under Section 100 of CPC has been filed by the plaintiffs against the impugned judgment and decree dated 26.02.2013 passed by Additional District Judge Khairagarh, Link Court Dongargarh, District Rajnandgaon, in Civil Appeal No. 5-A/2009 whereby the first appeal filed by the defendant No.1 was allowed and the judgment and decree dated 13.01.2009 passed by Civil Judge, Class-II, Chhuikhadan, District Rajnandgaon, in Civil Suit No.106-A/2008 was set aside.

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2. For the sake of convenience, the status of the parties are being taken as per their status in the Civil Suit.

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3. The appeal was admitted by this court on 04.12.2013 for hearing on the following substantial questions of law:

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“Whether the finding arrived at by the lower appellate court in respect of perfection of title by adverse possession by the respondents is correct, particularly, when their case itself before the court below and their counter claim was that they are coowners of the property and have received the same by inheritance?”

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4. The plaintiffs filed a civil suit before the trial court with the pleading that the suit property of Khasra No.506 Area 0.35 Acre situated at village Jhuranadi, PH No.20, Tehsil Chhuikhadan, District Rajnandgaon, which has been shown in Schedule-A annexed with the plaint, was owned and possessed by them and over the said property the house and threshing field is constructed. Although name of defendant No.2 was also recorded in the revenue records along with name of plaintiffs, however, she was not interested in filing suit and therefore she has been made as defendant No.2. In the month of December, 2001 the

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defendant No.1 tried to forceful possess the suit property and then the plaintiff No.1 has got his land demarcated, however, in the demarcation report, a wrong demarcation report was submitted by the Tehsildar and no possession of defendant No.1 was found on the spot. On 21.01.2002 the defendant No.1 demolished the boundary wall of western side of the suit property and tried to erect his own wall for which the plaintiff lodged a police report at Police Station Chhuikhadan and thereafter the present suit has been filed.

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By way of amendment, it is also pleaded that during pendency of the suit, despite temporary injunction order passed in favour of plaintiff, the defendant No.1 has completed his construction work and erected his house over the suit land and thereafter he claimed possession of the suit property after removal of construction of defendant No.1. Initially the plaintiff filed the civil suit for permanent injunction and damages, and by way of amendment he claimed for possession of the suit property after removal of construction of defendant No.1.

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5. The defendant No.1&2 contested the claim of plaintiffs and filed written statement, denied the plaint averment and pleaded that defendant No.2 is the maternal aunt of defendant No.1. After death of father of defendant No.2, the suit property was inherited by her as legal heir of her father and her name was recorded in the revenue records in place of her father. The plaintiffs are not willing to give any share of the property to the defendant No.1 and despite claim for partition, the plaintiffs did not partition the property. The plaintiffs are entitled for half share of the suit property. Defendant No.2 is also entitled for half share

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of the suit property and they are in possession of their own property. The parties belong to common ancestor and defendant No.1 had constructed a house over his own land. The demarcation was done in absence of defendants and they are not aware about any police complaint made by the plaintiffs. The defendants never encroached over any part of the land of plaintiffs.

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6. Apart from written statement, the defendant No.1 also filed his counter claim under Order 8 Rule 6(A) CPC and pleaded that although the suit property is recorded in the name of plaintiffs, however, the defendant No.1 is in actual physical possession of 17 dismil of land and he is using the said land as threshing field since more than 20 years. Earlier their ancestors were using the said land as threshing field and there is a boundary wall between the land of his possession and the land of plaintiffs. There was no dispute with respect to possession of land of defendant No.1 between the plaintiffs and defendants. There was partition between the grandfather of plaintiffs No.1 to 3 and grandfather of defendant No.1 and since that time all the parties are in possession of their respective share and get the revenue records separated. By mistake the land in which the defendant No.1 is in possession, is mutated in the name of plaintiffs whereas they never been in possession of the land of defendant No. 1 and thus the defendant No.1 has perfected his title by the doctrine of adverse possession. On 13.01.2002 at the time time of demarcation, the possession of defendant No.1 was found by the revenue authorities and when the defendant No.1 tried to expand his house by constructing a room over

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2 dismil of land, the plaintiffs raised dispute and tried to dispossess them from the suit property and then litigation arose between the parties. The counter claim for declaration of title and possession holder of suit property of 17 dismil of land of Khasra No.506 out of total 35 dismil as per the four corners shown in the counter claim.

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7. The counter claim was also replied by the plaintiffs by filing written statement and plaintiffs denied the claim of defendant No.1 and pleaded that by taking advantage of the fact that plaintiff No.1 is physically disabled and Teacher by profession, he started construction over the suit land with an intention to grab the property. When dispute arose, the plaintiffs lodged a report to the police at Police Station Chhuikhadan and subsequently filed a civil suit in which an order of temporary injunction was passed in his favour, yet during pendency of the suit, the plaintiff did not stop and completed his construction work. There was no partition between the ancestors of plaintiffs as well as defendant No.1. In the demarcation though possession of defendant No.1 was not found on the spot, however, in collusion with revenue authority he shown his possession over the suit land and constructed a house thereon. Therefore, no right or title accrued in favour of defendant No.1 either by any deed or by the adverser possession and his counter claim is liable to be dismissed.

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8. The defendant No.2 neither filed any written submission nor contested the suit. Even her LRs have not contested the suit and remained exparte.

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6

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9. On the basis of pleadings of the parties, the trial court framed issues and proceeded for recording evidence of the parties.

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10. The plaintiffs, in support of their claim, examined Khemuram, PW-1, Dhansai, PW-2, P.R. Chandel, PW-3 and relied upon documents Ex.P/1, the complaint dated 21.02.2002 made to PS Chhuikhadan, P/2, Khasra Panchsala, P/3, copy of FIR, P/4, Kistbandi B-1, P/5 judgment dated 23.12.2006 passed in Criminal Case No.401/2002, P/6, judgment dated 17.04.2007 passed in Criminal Appeal No.6/2007, P/7 is the copy of Rin Pustika, P/8&P/9 are the demarcation report, Ex.P/10 is the spot map and P/11 is Khasra Panchsala. The defendants have examined Mehtar, DW-1, Chhabilal, DW/2, Mansaram DW/3 and have relied upon the documents Ex.D/1, an application for demarcation, D/2 is the memo with respect to demarcation report , D/3 is Khasra Panchsala, D/4, Patwari Map and D/5 is t he field book.

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11. After appreciation of evidence led by the parties, the trial court decreed the suit of the plaintiffs and dismissed the counter claim of defendant No.1 holding that the suit land is owned and possessed by the plaintiffs and defendant No.1 had forcefully possessed 17 dismil of land of the plaintiffs and plaintiffs are entitled for vacant possession of the suit land after demolishing the construction of defendant No.1. It was also found by the trial court that the defendant No.1 failed to prove his case that he is title and possession holder of the suit property by virtue of adverse possession.

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12. The judgment and decree passed by the trial court was challenged by the defendant No.1 before the first appellate court which was allowed

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and the judgment and decree passed by trial court was set aside and defendant No.1 was declared tittle and possession holder of the suit land of 17 dismil having fourcorners of the threshing filed of Samay Lal Lodhi in the northern side, remaining 18 dismil of land in southern side, the land of Pirthi Lodhi and Sangram Marar in the eastern side and Khurmudi main road in the western side, which is under challenge in the present Second Appeal filed by the plaintiffs. The present second appeal has been admitted on the substantial questions of law which have been set out in the opening paragraph of this judgment.

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13. Learned counsel appearing for the appellants/plaintiffs would submit that the defendant No.1 has failed to prove that he perfected his title over the suit property by adverse possession by required pleading and proof thereof. The defendant No.1 is claiming the suit property by virtue of the partition from the time of their grandfather, however, he also claimed adverse possession over the suit property which cannot run together with the title by inheritance. He would also submit that with respect to adverse possession, the defendant No.1 has made a general pleading that he is in possession of the suit property since more than 20 years, however, his possession is not hostile to the interest of the plaintiffs and he failed to prove his long and uninterrupted possession by leading sufficient evidence to prove his adverse possession. Even if it is found that the defendant No.1 is having long possession, the same cannot be converted into adverse possession for want of sufficient pleading and evidence to that respect. He would also submit that although in demarcation report the

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possession of defendant No.1 was found on 17 dismil of land of northern side of the total suit land, but in view of the claim of defendant No.1 that he is in possession since lifetime of his ancestors, his possession cannot be considered to be of long hostile possession. Merely on the basis of demarcation report the plaintiffs cannot be held title holder of suit property of 17 dismil of land holding that he perfected his title by way of adverse possession. He submits that well reasoned judgment passed by the trial court has been set aside by the first appellate court by self contradictory consideration which cannot stand on the facts of the case and law applicable to it. Therefore, the impugned judgment and decree is liable to be set aside.

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14. On the other hand, learned counsel appearing for respondent No.1 supported the impugned judgment and decree passed by the first appellate court and submitted that the defendant No.1 is in possession of suit property of 17 dismil of land since lifetime of their ancestors and he perfected his title by adverse possession. Only to collect evidence, the plaintiffs demarcated their land in which also the possession of defendant No.1 was found and the said demarcation report was not challenged by the plaintiffs and had not tried to get another demarcation report by appointing any Commissioner by the trial court and therefore the correctness of demarcation report cannot be doubted. After adverting the entire evidence available on record, the first appellate court has passed the decree in favour of defendant No.1 by allowing his counter claim and setting aside the judgment passed by

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the trial court, in which there is no perversity and the appeal filed by the appellants is liable to be dismissed.

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15. I have heard the counsel for the parties and perused the records of the trial court.

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16. The plaintiff’s claim in the present suit is for vacant possession of the suit property after demolishing the construction of defendant No.1 and his case is based on document Ex.P/2, Khasra Panchsala, P/4 Kistbandi and P/7, Rin Pustika in which the suit land Khasra No.506, area 0.35 Acre is recorded in their ownership. The plaintiffs case is further based on demarcation report Ex.P/9 in which 17 dismil of land of Khasra No.506 is found in possession of defendant No.1 whereas, the claim of defendant No.1 is that he is in possession of 17 dismil of land since the time of their ancestors. The defendant No.1 is also claiming that the ancestors of plaintiffs and defendant No.1 & 2 were common and they got partitioned the suit land of Khasra No.506 since life time of their ancestors and defendant No.1 came in possession of 17 dismil of land since then and he has perfected his title by way of adverse possession. The defendants are claiming possession on both counts i.e. by inheritance as well as by adverse possession.

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The law is well settled in the field that possession however so long, it cannot take place adverse possession until the principles and requirements of adverse possession is fulfilled by the party who is claiming adverse possession. Except self served statement of defendant No.1 that ancestors of plaintiffs and defendants No.1&2 were common, no other evidence or documents were produced by the

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defendant No.1 to show that their ancestors were one and common, particularly when plaintiffs denied relationship between them. The necessary ingredients of adverse possession which is required to be prove by the party concerned who is claiming adverse possession has been discussed by the Supreme Court in Karnataka Board of Waqf Vs. Government of India & Others, 2004(10)SCC 779 and in paragraph 11 & 12 it was observed as under:

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“11. In the eye of 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 true owner. It is a well- settled principle that a party claiming 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 Sakinal AIR 1964 SC 1254, Parsinni v. Sukhi (1993) 4 SCC 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 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 Sharma (1996) 8 SCC 128).

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A Plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. (See: S M Karim v. Bibi Sakinal AIR 1964 SC 1254). In P Periasami v. P Periathambi (1995) 6 SCC 523 this Court ruled that - "Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property." The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639 that is similar to the case in hand, this Court held:

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"As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must

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disclaim his right there under and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or 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 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 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."

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17. Further, in Ram Nagina Rai & Another Vs. Deo Kumar Rai

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(deceased) by LRs and another, 2019(13)SCC 324, the Supreme Court has held in paragraph 17 & 18 as under:

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“17. Applying the test of nec vi, nec clam, nec precario i.e., 'without force, without secrecy, without permission' as an established test for finding adverse possession, we find that the defendants have not proved their possession to be adverse to that of the real owner inasmuch as they entered into possession as licensees to begin with and there is nothing on record to show as to when the permissive possession became adverse to the interest of the real owner. ‘Animus possidendi’ is one of the ingredients of adverse possession, and unless the person possessing the property has the requisite hostile animus, the period of prescription does not commence. Virtually, the defendants are required to prove the possession to be adequate in continuity, adequate in publicity and to adequately show that their possession is adverse to that of the true owner. It must start with wrongful dispossession of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.

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The physical fact of exclusion, possession and animus possidendi to hold as owner, in exclusion to the actual owner, are the most important factors to prove adverse possession. A person pleading adverse possession has no equities in his favour. Since he is trying to take away the rights of the true owner, it is for him to clearly plead and establish all the facts necessary to establish his adverse possession.”

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18. From the pleadings of defendant No.1 in the written statement as well

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as counter claim, he (defendant No.1) stated that he is in possession of the suit property since lifetime of their ancestor and after demarcation of the land the plaintiffs are raising dispute over his possession. From demarcation report Ex.P/8 it transpires that demarcation was done on 13.01.2002 and on that day possession of defendant No.1 was found over 17 dismil of land which was in the northern side of plaintiff’s land,

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but it is not mentioned that since when defendant No.1 is in possession thereof. The physical fact of exclusion, possession and animus possidendi to hold as owner, in exclusion to the actual owner, are the most important factors to prove adverse possession. A person pleading adverse possession has no equities in his favour and infact he admitted the title of its actual owner. Since he is trying to take away the rights of true owner, it is for him to clearly plead and establish all the facts necessary to establish his adverse possession.

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19. From the pleading of written statement and counter claim, the defendant No.1 pleaded that he is in possession of the suit property since lifetime of his ancestors as the ancestors of plaintiffs and defendant No.1&2 were common and they got partitioned the suit property. The defendant No.1 has not produced any evidence to the effect that what was their genealogy; when the property of ancestors were partitioned and which property comes in their respective share. He stated in his examination in chief that the great grandfather of Khemu namely Achal and his grandfather Dhimra and Thukel were real brother and 17 dismil of land was obtained by Dhimra for his residence and since then they are in possession of the same, but, in cross examination, he admits that the suit land is recorded in the name of Khemu alone. He also admits that the suit land is recorded in the name of Khemu and his ancestors and they have not made any effort to get their name also mutated in the revenue records. He also admits that his Rin Pustika is separately prepared. He is having 5-6 Acres of land since the time of his ancestors and the land of Khemu is recorded

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separately since the time of his great grandfather. He admits that Khemu lodged a report against him in which fine was imposed upon him. This witness have not stated anything about uninterrupted and continuous possession hostile to the interest of the plaintiffs for more than 12 years. Merely by saying that he is in possession of the suit land since the lifetime of his ancestors is not sufficient to prove that he has perfected his title by adverse possession particularly when he is claiming inheritance that he inherited the property from his ancestors. There is no adverse possession at all unless the ouster is pleaded and proved by the defendant No.1. From his evidence, none of the ingredients of adverse possession or ouster found proved in the case.

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20. In support of the claim of plaintiffs, they have submitted the revenue records as well as Rin Pustika which shows that the suit land Khasra No.506 Area 35 dismil is recorded in the name of Khemu and he is the title holder of suit land whereas, the defendants could not produce any documents of his ownership over the suit land. Rather, he admits that suit land is recorded in the name of Khemu since the lifetime of his ancestors and they did not make any effort to get the land recorded in his own name by the defendant No.1. The evidence produced by the plaintiffs clearly suggests that they are the title holder of suit land Khasra No.506 Area 35 dismil.

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21. The trial court also after meticulous examination of the evidence produced by the parties, held that the defendant No.1 has failed to prove his title over the suit property, however, the plaintiffs have proved their title by producing relevant records and from the evidence of

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defendants also the title of plaintiffs found proved. Once the plaintiffs proved their title by leading evidence and other documents, until the defendants prove the adverse possession, the plaintiffs cannot be nonsuited. In the present case, the plaintiffs proved their title, however, the defendants failed to prove their adverse possession and therefore, the plaintiffs are entitled for a decree.

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22. In case of Indira Vs. Arumugam & Another, 1998(1)SCC 614, the Supreme Court has held in paragraph 5 as under :

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“5. It is, therefore, obvious that when the suit is based on title for possession, once the title is established on the basis of relevant documents and other evidence unless the defendant proves adverse possession for the prescriptive period, the plaintiff cannot be nonsuited…….”

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23. From the evidence produced by the parties as well as demarcation report Ex.P/8, the defendant No.1 is found in possession of 17 dismil of land and it is also an admitted fact that he is possession of 17 dismil of land, however, the defendant No.1 has failed to prove that he is the rightful owner of the suit land either by inheritance or by virtue of adverse possession. Mere by saying that he is in possession of suit land since the lifetime of his ancestors would not be sufficient to protect his possession when the plaintiffs were found title holder of suit property and defendants could not prove their title over the same. The dispute arose between the parties in the year 2001-02 when the plaintiffs got their land demarcated and found the defendant No.1 in possession of 17 dismil of his (plaintiff’s) land. The First Appellate Court has considered the possession part of defendant No.1 over the suit land that in the demarcation report as well as in the pleadings of parties, the defendant No.1 is found in possession of 17 dismil of land

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which proves his adverse possession, however, the said finding is against the law laid down by the Supreme Court in Karnataka Board of Waqf (Supra) and Ram Nagina Rai (Supra). Therefore, the judgment and decree passed by the first appellate court cannot be sustained.

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24. After having gone through the entire evidence produced by the parties, this court is of the considered opinion that plaintiffs have proved their case and are entitled for a decree which was rightly granted by the trial court, however, the defendant No.1 has failed to prove his counter claim and therefore, he is not entitled for any relief.

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25. Accordingly, the substantial question of law is answered in negative that the findings recorded by the first appellate court that defendant No.1 perfected his title over the suit property by adverse possession is not correct as the plea of adverse possession and the plea that defendant No.1 is co-owner of the property and have received the same by inheritance cannot run together.

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26. Accordingly, the appeal filed by the plaintiffs is allowed and the judgment and decree passed by the first appellate court dated 26.02.2013 in Civil Appeal No.5-A/2009 is set aside and judgment and decree passed by the trial court dated 13.01.2009 in Civil Suit No.106A/2008 is restored. Parties to bear their own cost.

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27. An appellate decree be drawn accordingly.

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Sd/(Ravindra Kumar Agrawal) Judge

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inder

Khemu Ram (Dead) Through Lrs. v. Mehtar and Ors.

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Khemu Ram (Dead) Through Lrs. v. Mehtar and Ors.

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