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CASE NO.:

Appeal (civil) 4031 of 1995.

PETITIONER:

BALKRISHAN

Vs.

RESPONDENT:

SATYAPRAKASH & ORS.

DATE OF JUDGMENT: 22/01/2001

BENCH:

Ruma Pal, S.S.M.Quadei

JUDGMENT:

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J U D G M E N T

Syed Shah Mohammed Quadri, J.

This appeal, by special leave, is from the judgment

and decree of the High Court of Madhya Pradesh (Bench at

Gwalior) in Civil Second Appeal No.161 of 1991 dated

September 1, 1994. The plaintiff in the suit (Case

No.51-A/86 in the court of Second Civil Judge Class I, Guna,

Madhya Pradesh) is the appellant. He laid the suit for

declaration of his title on the ground that by adverse

possession he perfected his title to the agriculture land

bearing Survey No.1216, admeasuring 1.902 hectares (Khasara

No.1216 area 9 bighas 2 visvas) situated in village Guna,

Tehsil and District Guna, Madhya Pradesh (hereinafter

referred to as, the suit land) and for permanent

injunction against respondent Nos.1 to 4 on December 6,

1986. The following facts need to be noticed for

understanding the controversy between the parties. The

appellant claimed that he purchased the suit land for

consideration of Rs.451/- from Sukhlal and Phulchand who

were said to be the owners thereof on August 25, 1960. The

suit land was under attachment by orders of the Tehsildar,

Guna and in the auction that followed the attachment, one

Mohan Singh purchased it in the name of his minor son

Rajendra Singh in 1963. Rajendra Singh through guardian -

his father Mohan Singh - filed an application under Section

250 of Madhya Pradesh land Revenue Code, 1959, before the

Tehsilar, Guna, against the appellant claiming restoration

of possession of the suit land. On the alleged ground of

interference in his possession, the appellant instituted a

suit (for declaration praying for declaration and

injunction) (Civil Suit No.82A/64) in the court of Civil

Judge, Class II, against Rajendra Singh & Mohan Singh and

his vendors (Sukhlal & Phoolchand) in1964. On December 23,

1966 the suit was dismissed holding that the sale in his

favour was not valid. Notwithstanding the dismissal of that

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suit, he remained in possession of the suit land. On June

20, 1971, the Tehsildar ordered the appellant to put the

said Rajendra Singh in possession of the suit land. Against

that order the appellant filed an appeal before the Sub-

Divisional Officer who dismissed the appeal on September 4,

1973. While so Rajendra Singh sold the suit land to

respondent Nos.2 and 4; respondent No.1 is husband of

respondent No.2 and respondent No.3 is the husband of

respondent No.4. The appellant, however, continued to

remain in the possession of the suit land. The said

respondents resisted the suit denying the possession of the

appellant and pleading that Mohan Singh and Rajendra Singh

were in continuous possession of the suit land and that the

appellant acquired no title to the suit land. They stated

that the appellant failed in the Civil Court, Revenue Court,

and before the Executive Magistrate and therefore that suit

was also liable to be dismissed. After considering the

evidence placed before it the trial court found that the

appellant had been in continuous possession of the suit land

and perfected his title by adverse possession. Accordingly,

the suit of the plaintiff was decreed by the trial court.

Against the judgment and decree of the trial court,

respondent Nos.1 to 4 filed appeal (Civil Appeal

No.97-A/1990) before the IInd Additional District Judge,

Guna. On 30 July, 1991, the First Appellate Court dismissed

the appeal. The said respondents filed Civil Second Appeal

No.161 of 1991 in the High Court of Madhya Pradesh (Bench at

Gwaliar), which was allowed, setting aside the judgment and

decree of the First Appellate Court, by the impugned

judgment and decree. Mr.Niraj Sharma, the learned counsel

appearing for the appellant contended that inasmuch as the

trial court as well as the First Appellate Court found that

the appellant had perfected his title by adverse possession,

the High Court erred in reversing the well- considered

judgments of the lower courts on the ground that possession

of the appellant was not sufficient in the eye of law to

confer the title by adverse possession. Mr.M.P.Verma, the

learned senior advocate appearing for the respondents,

contended that the earlier suit of the appellant was

dismissed and that there was an order of the Tehsildar

directing him to handover the possession of the suit land to

the respondents, therefore, the appellant could not claim to

be in continuous uninterrupted possessions as such the High

Court rightly held that the appellant did not perfect his

title by adverse possession and dismissed the suit of the

appellant. The short question that arises for consideration

in this appeal is : whether the High Court erred in holding

that the appellant had not perfected his title by adverse

possession on the ground that there was an order of

Tehsildar against him to deliver possession of the suit land

to the auction purchasers? The law with regard to

perfecting title by adverse possession is well settled. A

person claiming title by adverse possession has to prove

three nec - nec vi, nec clam and nec precario. In other

words, he must show that his possession is adequate in

continuity in publicity and in extent. In S.M. Karim Vs.

Mst. Bibi Sakina [AIR 1964 SC 1254] speaking for this Court

Hidayatullah, J. (as he then was) observed thus: Adverse

possession must be adequate in continuity, in publicity and

extent and a plea is required at the least to show when

possession becomes adverse so that the starting point of

limitation against the party affected can be found.

In the instant case, the trial court on appreciating

the evidence produced by the parties recorded the following

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among other findings: (i) Accordingly it is decided that

since 23.12.1966 negativing the title of actual Bhumiswami,

the plaintiff has been in continuous, uninterrupted and open

possession of the suit land;

(ii) As a result the plaintiff had acquired the rights

of Bhumiswami on the basis of the adverse possession of the

suit land.

The First Appellate Court on reappraisal of the

evidence on record found that the appellant was in

continuous possession from the date of the purchase i.e.,

August 25, 1960, but as the predecessor-in-interest of the

respondents, Rajendra Singh, initiated the proceedings under

Section 250 of the M.P. Land Revenue Code, 1959 before the

Tehsildar, Gunna, against the appellant for recovery of

possession so the period from August 25, 1960 till

initiation of proceedings and from 1.12.1964 to 4.9.73

during which the proceedings remained pending, cannot be

counted for perfecting the title of the plaintiff so his

adverse possession would commence from 4.9.1973 and and the

period of 12 years was completed on 4.9.85 before the

purchase of the suit land by the respondents on 11.12.85.

The present suit was filed on December 6, 1986, therefore,

the appellant perfected his title by adverse possession.

The High Court while accepting those findings of the courts

below, however, held : In spite of the fact that the

plaintiff continued in possession in spite of the order

against him in proceedings under Section 250 M.P.L.R. Code,

his possession cannot be said to be sufficient in the eye of

law to confer a title upon him by adverse possession, as

claimed.

In our view this conclusion of the High Court is

erroneous. The fact remained that in spite of order of the

Tehsildar against the appellant which was not acted upon,

nor executed, the appellant continued in possession of the

suit land and, therefore, the continuity of his possession

of the suit land was neither interrupted nor lost. Mere

passing of an order of ejectment against a person claiming

to be in adverse possession neither causes his dispossession

nor discontinuation of his possession which alone breaks the

continuity of possession. The fact that under Section

250(2) of the M.P.L.R. Code read with Section 38 thereof

the Tehsildar was bound to restore possession of the suit

land would, in our view, make no difference and it is

difficult to accept the contention that failure of the

Tehsildar in handing over possession would have the effect

of causing discontinuation of possession of the suit land by

the appellant so as to prevent such possession from ripening

into adverse possession after statutory period. In

Singaravelu Mudaliar Vs. Chokka Mudaliar [AIR 1923 Madras

28 (2)] the Madras High Court took the view that an

adjudication that the true owner had a good title to

possession is entirely consistent with the fact that actual

possession is with party who ousted the true owner and has

been holding possession as against the true owner on his own

behalf. It is difficult to understand as to how a decree

which negatived the first defendants right could possibly

be regarded in the nature of an interruption of the

continuity of possession. In Shaik Mukbool Ali Vs. Shaik

Wajed Hoossein [AIR 1923 Madras 88 (2)] the High Court held

: Whatever the decree might have been, the defendants

possession could not be considered as having ceased in

consequences of that decree, unless he were actually

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dispossessed. The fact that there is a decree against him

does not prevent the statute of limitation from running.

In our view, the Madras High Court correctly laid down

the law in the aforementioned cases. It will be apt to note

here the decision of Privy Council in A.S.S. Subbaiya

Pandaram Vs. Mohammed Mustafa Maracayar [AIR 1923 PC 175]

which was approved by this Court in Soni Lalji Jetha

(deceased) through his L.Rs. Vs. Soni Kalidas Devchand and

others [AIR 1967 SC 978]. In that case, in 1913 a suit was

brought by the appellant against the respondents for

possession of immovable property in question. In 1890 the

appellants grandfather created a trust of his properties

including the property in question. That property was

purchased by the respondents in execution of a decree

against the appellants father in 1898. The purchaser and

other respondents claiming under him had been in possession

since the date of purchase. In a subsequent suit, filed in

1904 in which the respondents were parties, a decree was

passed declaring that the trust created by the appellants

grandfather was valid. However, no steps were taken

pursuant to the decree to dispossess the respondents prior

to filing of the suit by the appellant. The Privy Council

negatived the contention that the decree in the suit holding

the property as trust property was res judicata as against

the respondents so as to preclude them from asserting title

in the property. The Privy Council observed as follows :

At the moment when it was passed the possession of the

purchaser was adverse and the declaration that the property

had been subject to a trust disposition, and therefore ought

not to have been seized, did not disturb or affect the

quality of his possession; it merely emphasised the fact

that it was adverse. No further step was taken in

consequence of that declaration until the present

proceedings were instituted, when it was too late.

From the above discussion it follows that the judgment

and decree of the High Court under challenge cannot be

sustained. They are accordingly set aside and the judgment

and decree of the First Appellate Court confirming the

judgment and decree of the trial court is restored. The

appeal is accordingly allowed but in the circumstances of

the case without costs.