As per case facts, the plaintiffs instituted a civil suit claiming title and permanent injunction over property, alleging it was sold to them via an unregistered sale-deed and they held ...
1
2026:CGHC:19765
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
SA No. 647 of 2003
1 - Ramjanak S/o Devdhari Aged About 38 Years Caste Harijan
(Chamar) Occupation Agriculture, R/o Village Sarna, Tahsil
Wadrafnagar Distt. Surguja Chhattisgarh
2 - Manikchand S/o Devdhari Aged About 27 Years Caste Harijan
(Chamar) Occupation Agriculture, R/o Village Sarna, Tahsil
Wadrafnagar Distt. Surguja Chhattisgarh
... Appellants
versus
1 - Mohd.Kasim (Dead Through Lrs) As Per Hon'ble Court Order Dated
30-11-2018 And 14-01-2025
1.1 - Sunnat Nisha (Died And Deleted) As Per Court Order Dated 25-11-
2025.
1.2 - Mohd. Zaharuddin (Died And Deleted) As Per Court Order Dated
25.11.2025, Through Lrs-
1.2.1 - Jumratan Nisha W/o Late Mohammad Zaharuddin Aged About
58 Years R/o Village Sarna, P.S. Raghunathpur, Distt. Balrampur
Ramanujganj, Chhattisgarh.
1.2.2 - Jakki-Ullah S/o Late Mohammad Zaharuddin Aged About 40
Years R/o Village Sarna, P.S. Raghunathpur, Distt. Balrampur
Ramanujganj, Chhattisgarh.
1.2.3 - Navi-Ullah S/o Late Mohammad Zaharuddin Aged About 37
Years R/o Village Sarna, P.S. Raghunathpur, Distt. Balrampur
Ramanujganj, Chhattisgarh.
2
1.2.4 - Nasim-Ullah S/o Late Mohammad Zaharuddin Aged About 31
Years R/o Village Sarna, P.S. Raghunathpur, Distt. Balrampur
Ramanujganj, Chhattisgarh.
1.2.5 - Tarikun Nisha D/o Late Mohammad Zaharuddin Aged About 34
Years R/o Village Sarna, P.S. Raghunathpur, Distt. Balrampur
Ramanujganj, Chhattisgarh.
1.3 - Smt. Hadisun D/o Late Mohd Kasim Aged About 47 Years R/o
Village Bhawar, P.S. Babhani, Distt - Sonbhadra Uttar Pradesh
1.4 - Smt. Tarikun D/o Late Mohd Kasim Aged About 45 Years R/o
Village - Asnahar, P.S. Babhani, Distt. Sonbhadra Uttar Pradesh
1.5 - Smt. Rashida Khatoon D/o Late Mohd Kasim Aged About 43 Years
R/o Village Sarna, P.S. Raghunathpur, Distt. Balrampur-Ramanujganj
Chhattisgarh
2 - Mohd Yasin S/o Late Abdul Mazid Aged About 53 Years Muslim,
Occupation Agriculture, R/o Village Sarna, Tahsil Wadrafnagar, Paul,
District Surguja Chhattisgarh
3 - Mohd. Ali S/o Late Mohd. Raffique Aged About 27 Years Caste
Muslim, Agriculturist And R/o Village Asanhar, P.S. Babhani, Tahsil
Dudhi, Distt. Sonbhadra Uttar Pradesh
4 - Mohd Sameed Ali S/o Late Mohd Raffique Aged About 24 Years
Caste Muslim, Agriculturist And R/o Village Asanhar, P.S. Babhani,
Tahsil Dudhi, Distt. Sonbhadra Uttar Pradesh
5 - Smt. Vaisran Wd/o Late Mohd. Raffique Aged About 60 Years
Agriculturist And R/o Village Asanhar, P.S. Babhani, Tahsil Dudhi, Distt.
Sonbhadra Uttar Pradesh
6 - Mohd. Zamruddin S/o Usman Aged About 23 Years R/o Village
Ashahhar, P.S. Babhani, Tahsil Dudhi, Distt. Sonbhadra Uttar Pradesh
7 - Mohd. Hasim (Dead Through Lrs) As Per Hon'ble Court Order Dated
30-11-2018 And 14-01-2025
7.1 - Gulbahar S/o Late Mohd. Hasim Aged About 60 Years R/o Village
Sarna, P.S. Raghunathpur, Distt. - Balrampur-Ramanujganj
3
Chhattisgarh
7.2 - Gulzar S/o Late Mohd. Hasim Aged About 43 Years R/o Village
Sarna, P.S. Raghunathpur, Distt. - Balrampur-Ramanujganj
Chhattisgarh
7.3 - Smt. Sonafun D/o Late Mohd. Hasim, W/o Munna Aged About 56
Years R/o Village Sarna, P.S. Raghunathpur, Distt. - Balrampur-
Ramanujganj Chhattisgarh
7.4 - Smt. Zamirun (Died) Through Lrs As Per Honble Court Order
Dated 28-01-2026
7.4.1 - Mohammad Hasnain S/o Islam Aged About 65 Years R/o Village
Barwatola, Ward And Post Duddhi, Sonbhadra, District : Sonbhadra,
Uttar Pradesh
7.4.2 - Mohammad Nasim S/o Hasnain Aged About 25 Years R/o Village
Barwatola, Ward And Post Duddhi, Sonbhadra, District : Sonbhadra,
Uttar Pradesh
7.4.3 - C. Sakina Bano D/o Hasnain Aged About 25 Years R/o Village
Barwatola, Ward And Post Duddhi, Sonbhadra, District : Sonbhadra,
Uttar Pradesh
7.5 - Smt. Sitare D/o Late Mohd. Hasim, W/o Munna Aged About 46
Years R/o Village Sarna, P.S. Raghunathpur, Distt. - Balrampur-
Ramanujganj Chhattisgarh
8 - The State Of Chhattisgarh Through District Collector, Ambikapur,
Distt. Surguja Chhattisgarh
... Respondents
Date of Hearing : 27.3.2026
Date of Pronouncement : 29.4.2026
For Appellants :Mr. Sushil Dueby, Advocate along with
Mr. Aman Upadhyay, Advocte
For Respondents No.1 & 2:Ms. Hamida Siddiqui, Advocate
For State/Respondent No. 8:Mr. Topilal Bareth, Panel Lawyer
Hon’ble Shri Justice Rakesh Mohan Pandey
CAV Judgment
4
1)This second appeal has been preferred by the appellants/
defendants No. 6 and 7 under Section 100 of CPC against the
judgment and decree passed by the learned IInd Additional
District Judge, Ambikapur, District Sarguja in First Civil Appeal No.
37-A/2002 dated 1.9.2003, whereby the appeal preferred by the
defendants No. 6 and 7 was dismissed and the judgment and
decree passed by the Civil Judge, Class-I, Ramanujganj in Civil
Suit No. 41-A/2000 dated 22.3.2002 were affirmed.
2)This second appeal was admitted for hearing vide order dated
23.12.2004 on following substantial questions of law :-
1. Whether the Courts below committed and error
of law in holding that the document (Ex. P/1) an
unregistered sale-deed confers any title upon
plaintiff?
2. Whether the correct test in relation to perfection
of title by way of adverse possession has not been
applied by the Courts below and the finding is
perverse on the face of record ?
3. Whether the lower appellate Court was obliged
under the law to make an enquiry in relation to valid
service of summons upon defendant No. 6 & 7 in
the present facts and circumstances of the case.
3)The learned Counsel appearing for the appellants does not want
to press substantial question of law no. 3. The prayer is
accordingly allowed. This appeal is confined to substantial
question of law no. 1 and 2 only.
4)The plaintiffs namely Mohd. Kasim and Mohd. Yasin instituted a
5
civil suit claiming therein relief of declaration of title and
permanent injunction over the suit property described in
Schedule-A appended to the plaint inter-alia on the ground that
suit property was sold by one Mohd. Rafique, who was the father
of defendants No. 1 and 2 and husband of defendant No. 3
through un-registered sale-deed dated 15.4.1964 (Ex. P/1) and
possession was handed over to plaintiffs and defendant No. 5,
namely, Mohd. Hasim. They pleaded that defendants No. 1 to 3
executed a registered sale-deed of the suit property in favor of
defendants No. 6 and 7 namely Ramjanak and Manikchand on
19.9.2000. They further pleaded that sale-deed dated 19.9.2000
does not contain signature of defendant No. 2 and same is forged
one. They further pleaded that suit property was sold to them
through un-registered sale-deed dated 15.4.1964 in consideration
of Rs. 150/- and a sewing machine on stamp paper of 10 paise
and since then, the plaintiffs are in possession. Plaintiffs also
pleaded that revenue record has already been rectified pursuant
to sale-deed dated 15.4.1964 and they have raised construction of
a house over it. Plaintiffs took plea of adverse possession making
statement that they are in continuous and hostile possession over
the suit property since date of purchase and this fact was within
the knowledge of defendants No. 1 to 3 and thus they have
perfected their right over the suit property. Plaintiffs alleged the
subsequent mutation of suit property in favor of defendants No. 1
to 3 and they sought for reliefs of declaration and permanent
6
injunction against defendants No. 1 to 3, 4, 6 and 7.
5)Defendants No. 1 to 4 filed written statement and denied the plaint
averments. They alleged un-registered sale-deed dated 15.4.1964
and pleaded that sale-deed dated 19.9.2000 was executed
pursuant to power-of-attorney given by Shammad Ali. They further
pleaded that pursuant to said sale-deed, possession has already
been handed over to defendants No. 6 and 7. They also pleaded
that suit property was purchased by Mohd. Rafique in the year
1961 in sale consideration of Rs. 200/- and his name was entered
in revenue record vide order dated 27.8.1961. They stated that
Mohd. Rafique remained in possession of suit property during his
lifetime, and after his death names of his children and wife i.e.
defendants No. 1 to 3 were entered in revenue record.
6)Defendants No. 6 and 7 (appellants herein) were proceeded ex-
parte. Learned trial court framed issues and decreed the suit vide
judgment and decree dated 22.3.2002. Defendants No. 6 and 7
challenged the judgment passed by learned trial court by filing
regular appeal, which was dismissed vide judgment and decree
dated 1.9.2003.
7)Mr. Sushil Dubey, learned counsel appearing for the defendants
No. 6 and 7 submits that learned courts below committed error of
law in holding that un-registered sale-deed dated 15.4.1964
confers title upon plaintiffs. He further submits that when sale
consideration exceeds Rs.100/-, the document requires
7
mandatory registration under Section 17 of the Registration Act,
1908 [hereinafter to be referred as ‘Registration Act ’] and due to
its non-registration, sale-deed dated 15.4.1964 is inadmissible in
evidence. He contends that learned courts below fell in error while
holding that the plaintiffs have perfected their title by way of
adverse possession, whereas the essential requirements to
establish adverse possession have not been satisfied. He further
contends that plaintiffs were in possession of suit property
pursuant to an un-registered sale-deed, thus their possession was
at most permissive. He submits that possession of suit property
was handed over to defendants No. 6 and 7 immediately after
execution of sale-deed dated 19.9.2000. He has placed reliance
on the judgments rendered by the Hon’ble Supreme Court in the
matters of Karnataka Board of Waqf Versus Government of
India and Others
1
and Ram Nagina Rai and Others Versus Deo
Kumar Rai (deceased) by Lrs and Another
2
. He has also placed
reliance on the judgment rendered by co-ordinate in the matter of
Phul Bai (dead) through Lrs Versus Samaru Ram Sahu and
Others
3
. He prays to allow this second appeal.
8)On the other hand, Ms. Hamida Siddiqui, learned counsel
appearing for the plaintiffs/ respondents No. 1 and 2 submits that
according to the proviso appended to Section 49 of Registration
Act, an un-registered document can be admitted in evidence for
1. 2004 SCC OnLine SC 505
2. (2019) 13 SCC 324
3. (2020) SCC OnLine Chh 1195
8
collateral purpose and contents of such document can be proved
by leading evidence. She further submits that an unregistered
document affecting the immovable property and required by
Registration Act to be registered may be received as evidence.
With regard to adverse possession, she submits that plaintiffs
have categorically pleaded in the plaint that they remained in
possession of suit property since the date of execution of sale-
deed dated 15.4.1964 and plaintiff-witnesses, namely, Mohd.
Kasim (PW/1), Udaychand Pandey (PW/2) and Shobhnath (PW/3)
have proved possession of the plaintiffs over suit property and
execution of sale-deed dated 15.4.1964. She contends that as
plaintiffs remained in continuous possession for more than 12
years, they perfected their right and learned courts below rightly
granted decree of title and permanent injunction in their favor. She
has placed reliance on the judgments rendered by the Hon’ble
Supreme Court in the matters of Vidhyadhar Versus Manikrao
and Others
4
, Muruganandam Versus Muniyandi (Died)
Through Lrs.
5
, R. Hemalatha Versus Kashthuri
6
and M/s K.B.
Saha and Sons Pvt. Ltd. Versus M/s Development Consultant
Ltd
7
.
9)I have heard learned counsel for the parties and perused the
record with utmost circumspection.
4. AIR 1999 SC 1441
5. 2025 SCC OnLine SC 1067
6. 2023 SCC OnLine SC 381
7. (2008) 8 SCC 564
9
10)Plaintiffs have claimed right over suit property by virtue of an un-
registered sale-deed (Ex. P/1) dated 15.4.1964. This document
would show that suit property was sold by Mohd. Rafique S/o
Abdul Majid for sale consideration of Rs. 150/- in presence of
witnesses namely Kartik, Ramnarayan Yadav and Sheshman.
This document was executed on a stamp paper of 10 paise.
Mohd. Hasim made a complaint (Ex. P/2) to Sarpanch, Gram
Panchayat Sarna, who issued a certificate (Ex. P/3) certifying the
continuous possession of Mohd. Hasim from year 1964 till 2000.
11)Mohd. Kasim (PW/1) deposed that he remained in possession of
the suit property since date of purchase and he developed it
investing Rs. 20,000/-. He admitted that Mohd. Rafique was his
elder brother. In para-16, he admitted that witnesses to the sale-
deed have died and the value of sale-deed is more than Rs. 100/-
and it was executed on a stamp paper of 10 paise. In para-20, he
admitted that suit property was purchased by Lt. Mohd. Rafique
from one Anjani Kumar in sale consideration of Rs. 200/- and
thereafter his name was entered in revenue record.
12)Udaychand Pandey (PW/2) deposed that suit property was
purchased by the plaintiffs for sale consideration of Rs. 200/- in
cash and a sewing machine. He stated that plaintiffs have
constructed a house over the suit property and they are in
possession of the same. In cross-examination, this witness
admitted that unregistered sale-deed was executed in his
10
presence and sale consideration was paid to Mohd. Rafique.
13)Shobhnath (PW/3) deposed that plaintiffs are in possession of suit
property since last 35 years and it was purchased for sale
consideration of Rs. 150 and a sewing machine. This witness
described the boundaries of suit property and in para-12, he
admitted that suit property was purchased by Mohd. Rafique from
Anjani Kumar. Defendants failed to examine any witness.
14)The points for determination before this Court are as under :-
(1) Possession of plaintiffs over the suit property
and plea of adverse possession
(2) The unregistered sale-deed executed in favor of
plaintiffs dated 15.4.1964 and its validity.
(3)Proviso appended to Section 49 of Registration
Act.
Discussion on the plea of adverse possession
15)Doctrine of adverse possession states that when a person holds
the property owned by another individual for an uninterrupted
period of more than 12 years, he would become the lawful owner
of the land. The essentials to prove adverse possession are –
(i) immovable property – a property in dispute must
be immovable in nature.
(ii)actual and exclusive possession – a person
claiming it must have its actual possession i.e. his
physical presence to claim adverse possession is
mandatory.
(iii)uninterrupted possession – possession by a
person must be uninterrupted and continuous.
11
(iv)possession for a definite period – possession may
be continuous and that too, for definite period i.e.
12 years.
The burden to prove adverse possession lies upon the
person who is claiming such defence. To prove adverse
possession, a person would need to prove (i) date from which the
property was under his possession, from which 12 years are going
to be calculated ; (ii) such person is also required to prove the
date from which the adverse possession of the property came to
knowledge of the owner and the date from which the possession
of property came to knowledge of immediate predecessors ; (iii)
he is required to prove that possession of the property was
peaceful and (iv) person making claim needs to prove beyond
doubt that the property owner despite having knowledge of
possession did not take any action against the possessor.
16)In the present case, plaintiffs in para-4 pleaded that suit property
was sold by Mohd. Rafique through un-registered sale-deed dated
15.4.1964 and possession was handed over. In para-7, again it is
pleaded that after execution of deed dated 15.4.1964, physical
possession was handed over and they are in possession since
then. In para-12, it is pleaded that since the date of execution of
deed, they are in continuous possession of the suit property and
thus they have perfected their right.
17)Plaintiffs failed to establish the date from which the property was
under their peaceful possession from which the period of 12 years
12
started. There is no plea with regard to the date from which
adverse possession of the property came into knowledge of the
owner. Hon’ble Supreme Court in the matter of Brijesh Kumar
and Another Versus Shardabai (Dead) through LRs and
Others
8
held that to constitute adverse possession there must be
assertion of a hostile possession in denial of title of the true owner
and onus would be on the person claiming adverse possession to
prove the nature of his possession. Relevant paragraph 13 reads
as under :-
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 (supra).
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 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 & Ors. vs. Palle
Venkata Subba Rao. (2010) 14 SCC 316, on
adverse possession observing as follows:
"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
8. (2019) 9 SCC 369
13
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."
18)In the matter of Amrendra Pratap Singh v. Tej Bahadur
Prajapati and Others
9
, Hon’ble Supreme Court held that if a
person despite not having right of possession does so and
continues in possession perfects the title over land beyond period
of 12 years in such a circumstance the original owner looses title.
It was further held that it is essential requirement to establish the
fact that person who is claiming adverse possession had no right
to hold the possession of land.
But in the present case plaintiffs have claimed right over the
property on the basis of un-registered sale deed and at the same
time they have taken plea of adverse possession, thus claim of
the plaintiffs over the suit property is contradictory and self
destructive.
19)At this juncture, the principles laid down by the Hon’ble Supreme
Court in the matter of Achal Reddy Versus Ramakrishna
9. (2004) 10 SCC 65
14
Reddiar and others
10
are to be seen wherein the transaction of
July 10, 1946 between one Dasu Reddi and Varada Reddi was
executed only with regard to an agreement for sale and based
upon it Varada Reddi came in possession thereof. In that factual
scenario, it was held that the purchaser who got into possession
under an executory contract of sale in a permissible character
cannot be heard to contend that his possession was adverse.
Relevant paragraphs 9 and 10 read as under :-
“9. ………………...In the case of an agreement
of sale the party who obtains possession,
acknowledges title of the vendor even though
the agreement of sale may be invalid. It is an
acknowledgement and recognition of the title of
the vendor which excludes the theory of
adverse possession. The well-settled rule of
law is that if person is in actual possession and
has a right to possession under a title involving
a due recognition of the owner's title his
possession will not be regard- ed as adverse in
law, even though he claims under another title
having regard to the well recognised policy of
law that possession is never considered
adverse if it is referable to a lawful title. The
purchaser who got toto possession under an
executory contract of sale in a permissible
character cannot be heard to contend that his
possession was adverse. In the conception of
adverse possession there is an essential and
basic difference between a case in which the
other party is put in possession of property by
an outright transfer, both parties stipulating for
a total divestiture of all the rights of the
transferor in the property, and in case in which,
there is a mere executory agreement of trans-
fer both parties contemplating a deed of
transfer to be executed at a later point of time.
In the latter case the principle of estoppel
applies estopping the transferee from
contending that his possession, while the
10. (1990) 4 SCC 706
15
contract remained executory in stage, was in
his own right and adversely against the
transferor. Adverse possession implies that it
commenced in wrong and is maintained
against right. When the commencement and
continuance of possession is legal and proper,
referable to a contract, it cannot be adverse. ”
“10. In the case of an executory contract of sale
where the transferee is put in possession of the
property in pursuance of the agreement of sale
and where the parties contemplate the
execution of a regular registered sale deed the
animus of the purchaser throughout is that he
is in possession of the property belonging to
the vendor and that the former's title has to be
perfected by a duly executed registered deed
of sale under which the vendor has to pass on
and convey his title. The purchaser's
possession in such cases is of a derivative
character and in clear recognition of and in
acknowledgement of the title of the
vendor”…………….. “On the other hand in the
case of an executory contract the possession
of the transferee until the date of registration of
the conveyance is permissive or derivative and
in law is deemed to be on behalf of the owner
himself……………...”
20)Likewise, in the matter of Ram Nagina Rai (supra), Hon’ble
Supreme Court held that adverse possession means a hostile
assertion i.e. a possession which is expressly or impliedly in
denial of the title of the true owner and the person who bases his
title on adverse possession must show, by clear and unequivocal
evidence, that the possession was hostile to the real owner and it
amounted to the denial of his title to the property claimed. It was
also observed that where the possession can be referred to a
lawful title, it would not be considered to be adverse. Relevant
paragraphs 8, 9 and 17 read as under :-
16
"8. ……………………. Adverse possession means
a hostile assertion i.e. a possession which
is ..........Adverse possession expressly or
impliedly in denial of the title of the true owner.
The person who bases his title on adverse
possession must show, by clear and
unequivocal evidence, that the possession was
hostile to the real owner and it amounted to the
denial of his title to the property claimed. In
deciding whether the acts alleged by the
person constitute adverse possession, regard
must be given to the animus of the person
doing such acts, which must be ascertained
from the facts and circumstances of each case.
It is needless to observe that where the
possession can be referred to a lawful title, it
would not be considered to be adverse, the
reason being that the person whose
possession can be drawn to a lawful title, will
not be permitted to show that his possession
was hostile to another's title. Simply put, one
who holds possession on behalf of another,
does not by mere denial of the other's title,
make his possession adverse so as to give
himself the benefit of the statute of limitation."
9. ……………….All through, as is evident from
the material evidence on record and their
contentions, the defendants have tried to show
that they have been in continuous possession
of the property for more than 60 years. But
there is no iota of evidence to show as to when
the defendants' possession in fact became
adverse to the interest of the plaintiff. Except
for the change of Khatian sometime in the year
1970 by the defendants and the payment of
taxes for being in possession of property, no
material is produced by the defendants to show
whether the possession was really hostile to
the actual owner…………..
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
17
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.
21)In the matter of Roop Singh (Dead) Through Lrs. Versus Ram
Singh (Dead) Through Lrs.
11
, Hon’ble Supreme Court held that
defendant entered into the possession of the premises as a tenant
and his possession was permissive and there was no pleading or
proof as to when it became adverse and hostile. Relevant
paragraphs 7 and 9 read as under :-
7. .......…………... Further, the fact-finding courts
after appreciating the evidence held that the
defendant entered into the possession of the
premises as a batai, that is to say, as a tenant
and his possession was permissive and there
was no pleading or proof as to when it became
adverse and hostile. ……….. If the defendant
got the possession of suit land as a lessee or
under a batai agreement then from the
permissive possession it is for him to establish
by cogent and convincing evidence to show
hostile animus and possession adverse to the
knowledge of the real owner. Mere possession
for a long time does not result in converting
permissive possession into adverse
possession. ……………..
9. ………………..It is also to be stated that the
pleas of adverse possession and retaining the
possession by operation of Section 53-A of the
Transfer of Property Act are inconsistent with
each other. Once it is admitted by implication
that the plaintiff came into possession of the
land lawfully under the agreement and
continued to remain in possession till the date
11. (2000) 3 SCC 708
18
of the suit, the plea of adverse possession
would not be available to the defendant unless
it has been asserted and pointed out hostile
animus of retaining possession as an owner
after getting in possession of the land."
22)Yet, in the matter of Karnataka Board of Waqf (supra), it has
been held by Hon’ble Supreme Court that an owner would be
deemed to be in possession of a property so long as there is no
intrusion and non-use of the property by the owner even for a long
time won’t affect his title. It was further held that a party claiming
adverse possession must prove that his possession is “nec vi, nec
clam, nec precario” that is peaceful, open and continuous.
Relevant paragraph 11 reads as under :-
11. In the eye of the law, an owner would be
deemed to be in possession of a property so
long as there is no intrusion. Non-use of the
property by the owner even for a long time won't
affect his title. But the position will be altered
when another person takes possession of the
property and asserts a right over it. Adverse
possession is a hostile possession by clearly
asserting hostile title in denial of the title of the
true owner. It is a 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 Sakina
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
19
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 SCC 128].
23)In the instant case, plaintiffs have set up their interest upon the
alleged transaction dated 15.4.1964 and adverse possession but
right, title and interest of plaintiffs in absence of execution of a
registered deed of sale cannot be held to be extinguished in view
of the provisions prescribed under Section 54 of Transfer of
Property Act, 1954 [hereinafter to be referred as ‘TP Act’] read
with Section 17 of Registration Act. In such circumstances, the
possession of the plaintiffs at the most could be held to be of
permissive in nature and cannot be held to be ripen by way of
adverse possession.
Discussion on validity of un-registered sale-deed and the proviso
appended to Section 49 of Registration Act.
24)Section 17 of the Registration Act deals with documents of which
registration is compulsory. Section 17 (1) (b) states that other non-
testamentary instruments which purport or operate to create,
20
declare, assign, limit or extinguish, whether in present or in future,
any right, title or interest, whether vested or contingent, of the
value of one hundred and upwards, or in immovable property
requires registration. Section 17 (1) (b) is reproduced herein
below :-
“17. Documents of which registration is
compulsory.-(1) The following documents shall
be registered, if the property to which they relate
is situate in a district in which, and if they have
been executed on or after the date on which, Act
No. XVI of 1864, or the Indian Registration Act,
1866, or the Indian Registration Act, 1871, or the
Indian Registration Act, 1877, or this Act came or
comes into force, namely:-
(b) other non-testamentary instruments which
purport or operate to create, declare, assign,
limit or extinguish, whether in present or in
future, any right, title or interest, whether vested
or contingent, of the value of one hundred
rupees and upwards, to or in immovable
property” ”
25)A contract of sale of immovable property is a contract that a sale
of such property shall place on terms settled between the parties.
While a sale is a transfer of ownership, a contract for sale is
merely a document creating a right to obtain another document,
namely a registered sale deed to complete the transaction of sale
of an immovable property. Section 54 in its definition of sale does
not include an agreement of sale and neither confers any
proprietary rights in favor of the transferee nor by itself create any
interest or charge in the property. In the instant case, there was
transfer of immovable property exceeding Rs. 100/- through
unregistered document therefore in view of the above quoted
21
provisions, execution of registered instrument to sale was
mandatory. Hon’ble Supreme Court in the matter of Ramesh
Chand (D) Thr. Lrs. Versus Suraj Chand and Another
12
while
dealing with similar issue held as under :-
13. The TP Act envisages five different modes for
transferring a property but for the purpose of the
present appeal we are only concerned with one
of the modes i.e., by way of "Sale" and the same
is dealt under section 54 of the TP Act which
defines "sale" and a "contract for sale" as follows:
"54. 'Sale' defined.– 'Sale' is a transfer of
ownership in exchange for a price paid or
promised or part-paid and part-promised.
Sale how made. – Such transfer, in the case
of tangible immovable property of the value of
one hundred rupees and upwards, or in the case
of a reversion or other intangible thing, can be
made only by a registered instrument.
In the case of tangible immovable property of
a value less than one hundred rupees, such
transfer may be made either by a registered
instrument or by delivery of the property.
Delivery of tangible immovable property takes
place when the seller places the buyer, or such
person as he directs, in possession of the
property.
Contract for sale.– A contract for the sale of
immovable property is a contract that a sale of
such property shall take place on terms settled
between the parties.
It does not, of itself, create any interest in or
charge on such property."
12. 2025 SCC OnLine SC 1879
22
14. Perusal of above said provisions lays down a
specific mode of execution of sale deed with
respect to immovable property for concluding the
sale of a property. In sale for an immovable
property the value of which exceeds Rs. 100/-,
the three requirements of law are that the transfer
of property of sale must take place through a
validly executed sale deed, i.e., it must be in
writing, properly attested and registered. Unless
the sale deed is in writing, attested and
registered, the transaction cannot be construed
as sale, or in other words, the property will not be
transferred.
15. There is a difference between a sale deed and an
agreement for sale, or a contract for sale. A
contract for sale of immovable property is a
contract that a sale of such property shall take
place on terms settled between the parties. While
a sale is a transfer of ownership; a contract for
sale is merely a document creating a right to
obtain another document, namely a registered
sale deed to complete the transaction of sale of
an immovable property Section 54 in its definition
of sale does not include an agreement of sale
and neither confers any proprietary rights in
favour of the transferee nor by itself create any
interest or charge in the property. If after entering
into a contract for sale of property, the seller
without any reasonable excuse avoids executing
a sale deed, the buyer can proceed to file a suit
for specific performance of the contract.
16. The scope of an agreement for sale has been
highlighted by this court in the case of Suraj
Lamp and Industries Private Limited (2) through
Director v. State of Haryana, wherein this Court
observed that:
"16. Section 54 of the TP Act makes it clear
that a contract of sale, that is, an
agreement of sale does not, of itself, create
any interest in or charge on such property.
23
This Court in Narandas Karsondas v. S.A.
Kamtam, [(1977) 3 SCC 247] observed:
"32. A contract of sale does not of itself
create any interest in, or charge on,
the property. This is expressly
declared in Section 54 of the Transfer
of Property Act. (See Ram Baran
Prasad v. Ram Mohit Hazra, [AIR
1967 SC 744]). The fiduciary
character of the personal obligation
created by a contract for sale is
recognised in Section 3 of the
Specific Relief Act, 1963, and in
Section 91 of the Trusts Act. The
personal obligation created by a
contract of sale is described in
Section 40 of the Transfer of Property
Act as an obligation arising out of
contract and annexed to the
ownership of property, but not
amounting to an interest or easement
therein.
33. In India, the word 'transfer' is
defined with reference to the word
'convey'.... The word 'conveys' in
Section 5 of the Transfer of Property
Act is used in the wider sense of
conveying ownership.
***
37. ... that only on execution of
conveyance, ownership passes from
one party to another...."
17. In Rambhau Namdeo Gajre v. Narayan
Bapuji Dhotra, [(2004) 8 SCC 614] this
Court held:
"10. Protection provided under Section
53-A of the Act to the proposed
transferee is a shield only against the
transferor. It disentitles the transferor
24
from disturbing the possession of the
proposed transferee who is put in
possession in pursuance to such an
agreement. It has nothing to do with
the ownership of the proposed
transferor who remains full owner of
the property till it is legally conveyed
by executing a registered sale deed
in favour of the transferee. Such a
right to protect possession against
the proposed vendor cannot be
pressed into service against a third
party."
18. It is thus clear that a transfer of
immovable property by way of sale
can only be by a deed of conveyance
(sale deed). In the absence of a deed
of conveyance (duly stamped and
registered as required by law), no
right, title or interest in an immovable
property can be transferred.
19. Any contract of sale (agreement to
sell) which is not a registered deed of
conveyance (deed of sale) would fall
short of the requirements of Sections
54 and 55 of the TP Act and will not
confer any title nor transfer any
interest in an immovable property
(except to the limited right granted
under Section 53-A of the TP Act).
According to the TP Act, an
agreement of sale, whether with
possession or without possession, is
not a conveyance. Section 54 of the
TP Act enacts that sale of immovable
property can be made only by a
registered instrument and an
agreement of sale does not create
any interest or charge on its subject-
matter."
17. In the instant matter, undisputedly plaintiff claims
that there is only an agreement to sell, and there
25
is no sale deed executed in his favour by the
father. As per the settled position of law, this
document does not confer a valid title on the
plaintiff as it is not a deed of conveyance as per
Section 54 of the TP Act. At best, it only enables
the plaintiff to seek for specific performance for
the execution of a sale deed and does not create
an interest or charge on the suit property.
26)In M/s K.B. Saha (supra), R. Hemalatha (supra) and
Muruganandam (supra), Hon’ble Supreme Court has dealt with
Section 49 of Registration Act and consistently held that an un-
registered document affecting immovable property may be
received in evidence in a suit for specific performance and proviso
also enables the said document to be received in evidence of a
collateral transaction. In M/s K.B. Saha (supra), Hon’ble Supreme
Court has also culled out certain principles while dealing with the
scope of Section 49 of Registration Act, which are :-
1.A document required to be registered, if un-
registered is not admissible in evidence under
Section 49 of Registration Act.
2.Such un-registered document can however be
used as evidence for collateral purpose as
provided in proviso to Section 49.
3.A collateral transaction must be independent of, or
divisible from, the transaction to effect which the
law required registeration.
4.A collateral transaction must be a transaction not
itself required to be effected by a registered
document, that is, a transaction creating, etc. any
right, title or interest in immovable property of the
value of one hundred rupees and upwards.
26
5.If a document is inadmissible in evidence for want
of registration, none of its terms can be admitted in
evidence and that to use a document for the
purpose of proving an important clause would bot
be using it as a collateral purpose.
Same proposition of law has been enunciated by the
Hon’ble Supreme Court in the matter of S. Kaladevi Versus
V.R. Somasundaram
13
.
27)However, in present case it is not in dispute that sale-deed dated
15.4.1964 is an un-registered document which requires to be
registered. Such document could not be used as evidence for
collateral purpose. The collateral transaction was not an
independent act, rather the transaction was required to be
effected by registered document, therefore it was not admissible
in evidence to prove a valid transaction between the parties.
28) It is a settled position of law that a registered sale-deed carries a
formidable presumption of validity and genuineness. Registration
is not a mere procedural formality but a solemn act that imparts
high degree of sanctity to the document. A person alleging that
sale-deed is a sham must satisfy a rigorous standard of pleading
by making clear, cogent, convincing averments and provide
material particulars within their pleadings and evidence.
29)The Hon’ble Supreme Court in the matter of Hemalatha (D) by
Lrs. vs. Tukaram (D) by Lrs. and Ors.
14
, held that there must be
13. (2010) 5 SCC 401
14. 2026 LiveLaw (SC) 79
27
clear pleadings and convincing averments to establish the factum
of a sham transaction. It is also held that the mere usage of
words like fraud is not sufficient. Relevant paragraphs 31, 34 & 35
read as under :-
“31. It is a settled position of law that a registered
Sale Deed carries with it a formidable
presumption of validity and genuineness.
Registration is not a mere procedural formality
but a solemn act that imparts high degree of
sanctity to the document. Consequently, a Court
must not lightly or casually declare a registered
instrument as a “sham”. Adopting the principles
enunciated in Prem Singh and Ors. vs. Birbal and
Ors., (2006) 5 SCC 353 1, Jamila Begum (Dead)
Through Lrs. vs. Shami Mohd. (Dead) Through
Lrs. and Anr., (2019) 2 SCC 727 2, and Rattan
Singh and Ors. v. Nirmal Gill & Ors., (2021) 15
SCC 300 3, this Court “27. There is a
presumption that a registered document is validly
executed. A registered document, therefore,
prima facie would be valid in law. The onus of
proof, thus, would be on a person who leads
evidence to rebut the presumption. In the instant
case, Respondent 1 has not been able to rebut
the said presumption……” “16. Sale deed dated
21-12-1970 in favour of Jamila Begum is a
registered document and the registration of the
sale deed reinforces valid execution of the sale
deed. A registered document carries with it a
presumption that it was validly executed. It is for
the party challenging the genuineness of the
transaction to show that the transaction is not
valid in law..….” “ 33. To appreciate the findings
arrived at by the courts below, we must first see
on whom the onus of proof lies. The record
reveals that the disputed documents are
registered. We are, therefore, guided by the
settled legal principle that a document is
presumed to be genuine if the same is
registered……” reiterates that the burden of proof
to displace this presumption rests heavily upon
the challenger. Such a challenge can only be
sustained if the party provides material
particulars and cogent evidence to demonstrate
28
that the Deed was never intended to operate as a
bona fide transfer of title.
34. The person alleging that a registered Deed is a
sham must satisfy a rigorous standard of
pleading by making clear, cogent, convincing
averments and provide material particulars in his
pleadings and evidence. This Court is of the view
that the test akin to a test under Order VI Rule 4
CPC is applicable to such a pleading and clever
drafting creating illusion of cause of action would
not be permitted and a clear right to sue would
have to be shown in the plaint.]
35. As pointed out by this Court in I.T.C. Limited vs.
Debts Recovery Appellate Tribunal and Ors.,
(1998) 2 SCC 70, the ritual of repeating a word
like ‘fraud’ or creation of an illusion in the plaint
can certainly be unraveled and exposed by the
Court at the nascent stage of litigation without
waiting for a full trial. Mere suspicion or nebulous
averments without material particulars would not
be sufficient to dislodge the presumption under
Sections 91 and 92 of the Indian Evidence Act,
1872.”
30)In the matter of Vidhyadhar (supra), it is held that where a party
to the suit does not appear in the witness-box to state their case
on oath or refuses to be cross-examined, a presumption can be
drawn that the case set up by him is not correct. Relevant
paragraph 17 reads as under :-
17. Where a party to the suit does not appear into
the witness box and states his own case on
oath and does not offer himself to be cross
examined by the other side, a presumption
would arise that the case set up by him is not
correct as has been held in a series of
decisions passed by various High Courts and
the Privy Council beginning from the decision
in Sardar Gurbakhsh Singh v. Gurdial Singh
and Anr. This was followed by the Lahore High
Court in Kirpa Singh v. Ajaipal Singh and Ors.
and the Bombay High Court in Martand
Pandharinath Chaudhari v. Radhabai
29
Krishnarao Deshmukh . The Madhya Pradesh
High Court in Gulla Kharagjit Carpenter v.
Narsingh Nandkishore Rawat also followed the
Privy Council decision in Sardar Gurbakhsh
Singh's case (supra). The Allahabad High
Court in Arjun Singh v. Virender Nath and Anr.
held that if a party abstains from entering the
witness box, it would give rise to an inference
adverse against him. Similarly, a Division
Bench of the Punjab & Haryana High Court in
Bhagwan Dass v. Bhishan Chand and Ors. ,
drew a presumption under Section 114 of the
Evidence Act against a party who did not enter
into the witness box.
31)In the present case, defendants No. 6 and 7 (appellants herein)
were proceeded ex-parte and ex-parte judgment and decree was
passed against them. They did not file written statement but at the
same time, plaintiffs were under obligation to prove their case.
Plaintiffs themselves pleaded that a registered sale-deed was
executed by defendants No. 1 to 3 in favor of defendants No. 6
and 7. They alleged it to be a forged document but they failed to
challenge the said sale-deed. The suit property was recorded in
the names of defendants No. 1 to 3 in revenue record after death
of Mohd. Rafique and they had right to execute a valid sale-deed
in favor of defendants No. 6 and 7. In absence of challenge to the
said sale-deed, it cannot be held that the said document is forged
one and not binding upon defendants No. 1 to 3.
32)In view of the discussion made herein-above, it can be safely
concluded that plaintiffs have not proved the essentials required to
establish adverse possession and at most, their possession can
be held to be permissive. It is also held that the sale-deed dated
30
15.4.1964 is an un-registered document which requires to be
registered and it was not admissible in evidence to prove a valid
transaction between the parties. Thus, the substantial question of
law No. 1 and 2 are answered in affirmative in favor of appellants /
defendants No. 6 and 7. The suit filed by the plaintiffs is dismissed
and the judgment and decree passed by the learned Trial Court
and learned First Appellate Court are hereby set aside.
33)In result, this second appeal is allowed.
34)A decree be drawn accordingly.
Sd/-
(Rakesh Mohan Pandey)
JUDGE
A j i n k y a
Legal Notes
Add a Note....