Smt. Shantibai Sharma & Others v. Anil Kumar Shukla & Others) whereby learned trial Court has dismissed
Case Details
1 2025:CGHC:49195 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 171 of 2009 Judgment Reserved on : 08.07.2025 Judgment Delivered on : 25.09.2025 1 - Smt. Shanti Bai Sharma (Died Through Lrs) As Per Hon'ble Court Order Dated 01-07-2025 1.1 - Naresh Sharma S/o Late Narayan Sharma Aged About 31 Years R/o In Front Of Kasaridih, Durg, Tehsil And District - Durg, Chhattisgarh 2 - Kumari Trivenibai D/o Late Narayan Sharma Aged About 33 Years Occupation - Service, R/o In Front Of Post Office, Kasaridih, Durg, Tahsil And Distt. Durg 3 - Kumari Santoshi Bai D/o Late Itwari Yadav Aged About 29 Years Occupation - Service, R/o In Front Of Post Office, Kasaridih, Durg, Tahsil And Distt. Durg ... Appellants versus 1 - Anil Kumar Shukla S/o Dr. S.R. Shukla Aged About 48 Years Occupation - Service, R/o In Front Of Post Of Office, Kasaridih, Durg, Tahsil And Distt. Durg 2 - Smt. Vidya Shukla W/o Anil Shukla Aged About 45 Years Occupation - Teacher, R/o In Front Of Post Of Office, Kasaridih, Durg, Tahsil And Distt. Durg 3 - State Of Chhattisgarh Through Collector/ Incharge Secretary, Collector Office, Nazul Branch, Office Of Collector, Durg ... Respondents For Appellants : Mr. Anup Majumdar, Advocate Respondents For No. 1 & 2 : Mr. B.P. Sharma, Advocate along with Mr. Pushp Kumar Gupta, Advocate BHUMIKA ANGARE Digitally signed by BHUMIKA ANGARE Date: 2025.09.26 10:48:04 +0530 2
Legal Reasoning
So for as the legal position is concerned, the judgment cited by the learned counsel for the plaintiffs in case of Ravinder Kaur Grewal(supra) is not in dispute but looking to the facts and circumstances of the case, once the plaintiffs are unable to prove the 12 adverse possession against the erstwhile owner it cannot be allowed to be inherited against subsequent purchaser, legatee or assignee as the defendants No. 1 and 2 by their evidence have been able to successfully prove that the possession of plaintiffs was permissive possession of Shyama Bai. The learned trial Court has also taken note of the fact that the suit property is a lease land given by the defendant- State and unless or until there is permission or knowledge of the lessor, the plaintiffs cannot claim adverse possession, more particularly, in absence of prayer for declaration of subsequent sale of the suit property in favour of defendants No. 1 and 2 to be declared as null and void. 20. From the above stated position of law and considering the fact that the plaintiffs were in possession of the suit property with the permission of Shyama Bai, therefore, their possession does not fall within the ambit of adverse possession but it is permissive possession. Similarly, the plaintiffs have not arrayed Smt. Shyama Bai as defendant who is necessary party to the suit as on her absence the controversy between the parties cannot be adjudicated properly. The plaintiffs are unable to point out any perversity or illegality warranting inference by this Court. Consequently, the appeal is liable to be dismissed and accordingly it is dismissed. The interim order passed by this Court on 22.04.2010 is vacated. 21. A decree be drawn up accordingly. Bhumika Sd/- (Narendra Kumar Vyas) Judge
Arguments
Hon'ble Shri Justice Narendra Kumar Vyas (CAV Judgment) 1. This is plaintiffs’ first appeal filed under Section 96 of the Code of Civil Procedure, 1908 challenging the judgment and decree dated 29.08.2009 (Annexure A/1) passed by learned 9th Additional District Judge (FTC), District- Durg (C.G.) in Civil Suit No. 03-A/2009 (Smt. Shantibai Sharma & Others Vs. Anil Kumar Shukla & Others) whereby learned trial Court has dismissed the suit filed by the plaintiff for declaration of title and ejectment. 2. For the sake of convenience, the parties would be referred to hereinafter as per their status shown in the Civil Suit No. 03-A/2009 filed before the trial Court. 3. The brief facts as reflected from the record are that- A) The house situated at Kasaridih, Durg bearing Nazul Sheet No. 63D, Plot No. 7, Area 180 sq. mtr. (hereinafter referred as suit property) is in possession of the plaintiffs. It is also case of the plaintiffs that the plaintiffs are in possession over the suit property for the last 60-65 years from the ancestral period and no one has raised any objection or claimed over the suit property, therefore, they have acquired the title over the suit property on the basis of adverse possession. B) It is also case of the plaintiffs that defendants No. 1 & 2 are taking wrong premises that Smt. Shyama Bai Agrawal has rehabilitated plaintiff No. 1 and her ancestors in the house and the plaintiffs are illegal encroachers of the suit property, as such, 3 filing of an FIR alleging that the plaintiffs have illegally encroached the suit property, is illegal. C) It is also case of the plaintiffs that proceedings under Section 145 of Cr.P.C. filed on 21.09.2007 is pending before the Sub Divisional Magistrate, Durg. It is also case of the plaintiffs that the Collector, Durg under Right to Information has informed that the suit property is registered in the name of Smt. Shyama Bai Agrawal W/o Keshavlal Agrawal since 1982 but it has not been mutated, then the plaintiffs came to know about the fact that Najul Patta is in the name of Shyama Bai Agrawal but Shyama Bai Agrawal or her ancestors have not interfered in possession over the suit property and also they have not given any rent, therefore, there was no relation of landlord and tenant between them, and since long they are in possession over the suit property and have acquired title on the principle of adverse possession. D) It has also been contended that since without any objection for the last 60 years, the plaintiffs are in possession over the suit property, therefore, they have acquired the title, accordingly it has been prayed that on the basis of adverse possession the plaintiffs be declared having possession and title holder over the suit property. 4. Defendants No. 1 & 2 have filed written statement denying the allegations made in the plaint. It has been denied that Shyama Bai Agrawal or her ancestors has rehabilitated the plaintiffs or her ancestors without any reason, in-fact they are occupying the said land 4 with permission of Shyama Bai Agrawal as tenant and they used to pay rent to Shyama Bai. It is also contended that defendants have purchased the suit property on 09.08.2007 from Shyama Bai Agrawal through registered sale deed and after taking possession in the house, one of the tenants vacated the house and gave possession to defendants No. 1 & 2 in which defendants No. 1 & 2 put their lock. It has also been contended that in view of sale deed dated 09.08.2007 the Municipal Corporation have mutated the suit property in the name of defendants No. 1 & 2 vide order dated 16.03.2009 and thus they have prayed for dismissal of the suit. 5. The learned trial Court on the pleadings of the parties has framed as many as 5 issues out of which issues No. 1 to 4 are relevant which are extracted below:- ^^1- D;k dlkjhMhg nqxZ fLFkr utwy 'khB dzekad 63 Mh Hkw[k.M dzekad 7 {ks=Qy 180 oxZehVj esa cus dPps edku ij 60&65 o"kksZ ls oknhx.k dk dCtk izfroknh dzekad 3 dh tkudkjh esa vkSj mlds LoRo ds foijhr vuojr jgus ds dkj.k oknhx.k dks fojks/kh vkf/kiR; ds vk/kkj ij LoRo ds foijhr vuojr jgus ds dkj.k oknhx.k dks fojks/kh vkf/kiR; ds vk/kkj ij LoRo izkIr gks x;k\ 2- D;k Jherh ';kek ckbZ vxzoky }kjk izfroknh dzekad 1 ,oa 2 ds i{k esa fu"ikfnr oknxzLr edku dk fodz; i= fnukad 9@8@2007 dks LoRofoghu gksus ds dkj.k oknhx.k ij vck/;dj gS\ 3- D;k oknhx.k oknxzLr lEifRr ij LoRo ?kks"k.kk ,oa izfroknhx.k ds fo:) fu"ks/kkKk izkIr djus ds vf/kdkjh gSa\ 4- D;k izdj.k esa iwoZiV~Vsnkj ';kekckbZ vxzoky vko’;d i{kdkj gksus ls mlds vla;kstu ds dkj.k okn vizpyuh; gS\^* 6. The plaintiffs to substantiate their case have examined Ram Das Chaturvedi (PW-1), Smt. Shanti Bai Sharma (PW-2), Santoshi (PW-3), Suresh Singewar (PW-4), Chhindo Kaur (PW-5) and N.K. Verma (PW- 6) and exhibited documents namely certified copy of Ishtgasha (Ex. P/1), order of Sub Divisional Magistrate (Ex. P/2), certified copy of 5 preliminary order (Ex. P/3), certified copy of Police Statement (Ex. P/4 to P/6), Bill given by M.P.V.M. (Ex. P/7), ration card (Ex. P/8), Death Certificate (Ex. P/9), Income Certificate (Ex. P/10), application under Right to Information (Ex. P/11), notice under Section 80 of C.P.C. (Ex. P/12), Postal receipt (Ex. P/13 to P/18), certified copy of office of District Election Officer, Durg (Ex. P/19 & P/20). 7. The Defendants to substantiate their case have examined Anil Shukla (DW-1), Smt. Sitabai Gupta (DW-2), Ravish Agrawal (DW-3) & Arun Gupta (DW-4) and exhibited documents namely sale deed (Ex. D/1), receipt of Municipal Corporation (Ex. D/2 to D/6), order of Najul Officer (Ex. D/7) and notice of Municipal Corporation (Ex. D/8). 8. Learned trial Court after appreciating the evidence, material placed on record vide judgment and decree dated 29.08.2009 has dismissed the suit filed by the plaintiffs. The learned trial Court by recording its finding while deciding issue No. 1 has held that the plaintiffs are unable to prove that they have acquired the title on the basis of adverse possession and also answered the Issue No. 2 that sale deed is not binding against the plaintiffs. The trial Court has also dismissed the suit on the count that original lease holder Shyama Bai Agrawal who was necessary party has not been impleaded. Being aggrieved with the judgment and decree dated 29.08.2009, the plaintiff has preferred the instant appeal before this Court. 9. Learned counsel for the appellant would submit that as per Sections 64 & 65 and Section 27 of Limitation Act, a suit for recovery of possession can be filed within 12 years of the dispossession or arising of cause of action and same is not done by Shyama Bai Agrawal but the properties 6 on paper was transferred to the defendants. The extinction of right to recover possession of Shyama Bai Agrawal is akin to advent of Right of Adverse Possession for the plaintiffs after expiration of 12 years of acquisition of Title i.e. year 1994. As per ‘Doctrine of Tacking’ the rights gained by plaintiffs continues to operate against subsequent owner also. It has also been contended that the right of continuous possession has been recognized by various judgments and subsequent purchaser of the property enters into the shoes of previous owner and, therefore, he does not acquire same extent rights as possessed by the previous owner and not more than that and would pray for allowing the appeal. To substantiate their contention they would refer to the judgment of the Hon’ble Supreme Court in case of Ravinder Kaur Grewal Vs. Manjit Kaur reported in (2019) 8 SCC 729 and Nair Service Society Ltd vs. Rev. Father K.C. Alexander & Ors reported in 1968 AIR 1165. 10. On the other hand, learned counsel for the respondents No. 1 & 2 would submit that the finding recorded by the learned trial Court does not suffer from perversity or illegality, therefore, no such eventuality is available to set-aside the well reasoned finding recorded by the trial Court. To substantiate their submission they would refer to the judgment passed by the Hon’ble Supreme Court in case of Jagdish Singh vs. Madhuri Devi reported in (2008) 10 SCC 947, Venkatesh vs. Karnataka Vidyut reported in (2016) 4 SCC 119, C. Venkata Swamy vs. H.N. Shivanna reported in (2018) 1 SCC 604 and V. Prabhakar vs. Basavraju reported in (2022) 1 SCC 115. Thus, he would submit that neither in the memo appeal nor during the course of hearing nothing has been brought on record by which it can be said 7 that the finding recorded by the learned trial Court requires interference of this Court. He would further submit that learned trial Court on appreciation of evidence, law and facts has rightly recorded its finding that the plaintiffs are not entitled to get decree of title on the basis of adverse possession. To substantiate their submission they would refer to the judgment of the Hon’ble Supreme Court in case of State of Haryana vs. Mukesh Kumar reported in (2011) 10 SCC 404 and would pray for dismissal of the appeal. 11. I have heard learned counsel for the parties and perused the documents available on record with utmost circumspection. 12. From the submission and the evidence brought on record, the point emerged for determination of this Court is ‘whether the finding recorded by the trial Court that the plaintiffs are not entitled to get decree on the basis of adverse possession, on account of non-joinder of necessary party suffers from perversity or illegality warranting any interference by this Court?’ 13. To appreciate this point, it is expedient for this Court to refer to evidence of Shanti Bai (PW-02) who in her examination in chief by way of an affidavit has reiterated the stand taken by her in the plaint. The witness in her cross-examination has admitted in paragraph 12 that the defendants have purchased the suit property from Shyama Bai and thereafter they have moved an application for mutation in the Najul Department wherein the plaintiffs have raised objection which has been rejected by the authority. 8 14. Santoshi (PW-03) has also admitted that the suit property has been purchased by defendants No. 1 & 2 and when they have moved an application raising objection the same has been rejected. 15. Anil Shukla (DW-01) in his cross-examination has stated that before purchasing the house, the owner of house Shyama Bai has told him that suit property belongs to her and Shanti Bai is living with her permission only and they will vacate the possession. 16. Sitabai Gupta (DW-02) daughter of Shyama Bai has been examined and she has supported the case of defendants. She in her cross- examination has stated that Ganga Bai was employed as maid servant in the house who was living in the suit property and when Ganga Bai expired her daughter Shanti Bai was living in the house. She has also admitted that in the suit property Ganga Bai and Shanti Bai were living peacefully with permission of Shyama Bai for last 30-35 years. She has also admitted that her mother has not taken any step to vacate them from suit premises. Ravish Agrawal (DW-03) was also examined and has supported the case of the defendants and in examination-in-chief has reiterated that Ganga Bai was working as maid servant in the house and after eviction of the house by him Shanti Bai and her daughter are also residing in the house. 17. From the evidence brought on record, it is quite vivid that when the property was owned by Shyama Bai they have never claimed title over the suit property on the basis of adverse possession and once the title has been transferred through registered sale-deed in the year 2007 how can they claim adverse possession on subsequent purchaser. The plaintiffs have not filed any suit prior to 2007 alleging that they are 9 residing in the suit property for the last 60-65 years. The defendants in their evidence have clearly brought on record that the plaintiffs were residing in the house with the permission of erstwhile owner Shyama Bai which has not been rebutted or diluted by any sufficient material brought on record. The learned trial Court while deciding the issue No. 1 and 4 regarding non-joinder of necessary party to Shyama Bai as what is the relationship between the plaintiffs and erstwhile owner can be established by the evidence of Shyama Bai or her legal heirs. On the contrary, the subsequent purchaser has examined the daughter of Shyama Bai as PW/2 and her son who have categorically established the relationship between the plaintiff Shanti Bai and Shyama Bai and has stated that with the permission of Shyama Bai only they are residing in the suit premises which is permissive possession and does not fall within the ambit of adverse possession on which title can be claimed by the plaintiffs. The learned trial Court has recorded the specific finding with regard to issue No. 1 that the suit property is a leased land and the lease has been granted by the Municipal Corporation and as per the terms of the lease, it can be sold, accordingly, it has been sold which is within her authority and even no suit challenging the sale-deed to be null and void has been filed. The learned trial Court rightly answered the Issue No. 1 to 4 against the plaintiffs and dismissed the suit. The finding recorded by the learned trial Court with regard to adverse possession is in conformity with the law of adverse possession as it is founded on the acceptance that ownership of the property vests in another, against whom the claimant asserts a possession adverse to the title of the other, as such, it is incumbent upon the defendant to admit the title then only he can take a 10 plea of adverse possession and in fact the possession should be adverse in the sense that it is contrary to the acknowledged title in the other person against whom it is claimed. The learned trial Court has considered this vital aspect to prove the plea of adverse possession as well as other parameters required to obtain the decree of adverse possession i.e. 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 other party (d) how long his possession has continued and (e) his possession was open and undisturbed. It is also well settled position of law that a person pleading adverse possession has no equity in his favour since he is trying to defeat right of true owner, as such it is for the plaintiffs to clearly plead and establish all facts necessary to prove their adverse possession. The issue with regard to adverse possession has come up for consideration before the Hon’ble Supreme Court in the case of Vasantha (dead) through Legal Representative vs. Rajalakshmi Alias Rajam (dead) through Legal Representatives 2024 (5) SCC 282 wherein the Hon’ble Supreme Court has held as under:- “40. In Saroop Singh v. Banto (Two Judge Bench) 2005(8) SCC 330 this Court observed that Article 65 states that the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. Further relying on Karnataka Board of Wakf v. Govt. of India 2004(10) SCC 779 (2-Judge Bench), it observed that the 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 related to adverse possession. Plea of adverse possession is not a pure question of law but a blend 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; 11 (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 prove his adverse possession. 18. The Hon’ble Supreme Court in the case of Neelam Gupta and Others vs. Rajendra Kumar Gupta and Another reported in 2024 SCC Online SC 2824 has held as under:- 44. In M. Siddiq’s case (supra) paragraphs 1142 and 1143 assume relevance and they, in so far as relevant to this case, run as under: - “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 adverse to the title of the other. Possession is adverse in the sense that it is contrary to the acknowledged title in the other person against whom it is claimed. Evidently, therefore, the plaintiffs in Suit 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. 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 nec claim 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 pleaded case.” 19.