1

2026:CGHC:262

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

Judgment Reserved on : 05/12/2025

Judgment Pronounced on : 05/01/2026

FA No. 33 of 1993

1 - (Deleted) Madhav Saw (Died) Through Lrs. As Per Honble Court Order

Dated 11-07-2024

1.1 - Rampyari Tamrakar Wd/o. Late Shri Madhow Sao Tamrakar Aged About

65 Years R/o. Village - Pandariya Gandai, Tehsil - Khairagarh, District -

Rajanandgaon (C.G.)

1.2 - Anil Tamrakar S/o. Madhow Sao Tamrakar Aged About 48 Years R/o.

Village - Pandariya Gandai, Tehsil - Khairagarh, District - Rajanandgaon

(C.G.)

1.3 - Sunil Tamrakar (Died) Through Lrs Nill

1.3.1 - (A) Divya Tamrakar W/o. Sunil Tamrakar Aged About 40 Years R/o.

Village - Pandariya Gandai, Tehsil - Khairagarh, District - Rajanandgaon

(C.G.)

1.3.2 - (B) Kumari Bhumika D/o. Sunil Tamrakar Aged About 16 Years R/o.

Village - Pandariya Gandai, Tehsil - Khairagarh, District - Rajanandgaon

(C.G.) - Through Her Natural Guardian Appellant 3 (A) (Mother)

1.3.3 - (C) Suryansh Tamrakar S/o. Sunil Tamrakar Aged About 12 Years R/o.

Village - Pandariya Gandai, Tehsil - Khairagarh, District - Rajanandgaon

(C.G.) - Through His Natural Guardian Appellant 3 (A) (Mother)

1.3.4 - (D) Dudhransh S/o. Sunil Tamrakar Aged About 10 Years R/o. Village -

Pandariya Gandai, Tehsil - Khairagarh, District - Rajanandgaon (C.G.) -

Through His Natural Guardian Appellant 3 (A) (Mother)

1.4 - Vinod Tamrakar S/o. Madhow Tamrakar Aged About 42 Years R/o.

Village - Pandariya Gandai, Tehsil - Khairagarh, District - Rajanandgaon

(C.G.)

1.5 - Jitesh Tamrakar S/o. Madhow Tamrakar Aged About 38 Years R/o.

Village - Pandariya Gandai, Tehsil - Khairagarh, District - Rajanandgaon

(C.G.)

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1.6 - Shailesh Tamrakar S/o. Madhow Tamrakar Aged About 36 Years R/o.

Village - Pandariya Gandai, Tehsil - Khairagarh, District - Rajanandgaon

(C.G.)

1.7 - Praveen Tamrakar S/o. Madhow Tamrakar Aged About 34 Years R/o.

Village - Pandariya Gandai, Tehsil - Khairagarh, District - Rajanandgaon

(C.G.)

1.8 - Rampal Tamrakar (Died) Through Lrs. (As Per Honble Court Order

Dated 12-12-2024)

1.8.1 - (A) Rashmi Tamrakar Wd/o Late Shri Rampal Tamrakar Aged About 54

Years R/o Ward No. 6 Gandai, Post Office Gandai, Pandariya, District

Khairagarh Chhuikhadan Gandai, Chhattisgarh.

1.8.2 - (B) Kumari Disha Tamrakar D/o Late Shri Rampal Tamrakar Aged

About 17 Years R/o Ward No. 6 Gandai, Post Office Gandai, Pandariya,

District Khairagarh Chhuikhadan Gandai, Chhattisgarh.

1.8.3 - (C) Abhyav Tamrakar S/o Late Shri Rampal Tamrakar Aged About 13

Years R/o Ward No. 6 Gandai, Post Office Gandai, Pandariya, District

Khairagarh Chhuikhadan Gandai, Chhattisgarh.

1.9 - Shyampal Tamrakar S/o. Madhow Tamrakar Aged About 30 Years R/o.

Village - Pandariya Gandai, Tehsil - Khairagarh, District - Rajanandgaon

(C.G.)

... Appellants

Versus

1 - (Deleted) Rambha Devi As Per Honble Court Order Dated 11-07-2024

2 - Padmraj S/o Umed Sao Aged About 27 Years R/o Village Gandai, Tahsil

Khairagarh, District Rajnandgaon (C.G.)

3 - Dharmraj S/o Umed Sao Aged About 25 Years R/o Village Gandai, Tahsil

Khairagarh, District Rajnandgaon (C.G.)

4 - Dhanraj S/o Umed Sao Aged About 21 Years R/o Village Gandai, Tahsil

Khairagarh, District Rajnandgaon (C.G.)

5 - Pukraj S/o Umed Sao Aged About 18 Years R/o Village Gandai, Tahsil

Khairagarh, District Rajnandgaon (C.G.)

6 - Annraj S/o Umed Sao Aged About 21 Years R/o Village Gandai, Tahsil

Khairagarh, District Rajnandgaon (C.G.)

7 - Ram Dulari Bai D/o Umed Sao Aged About 25 Years R/o Village Gandai,

Tahsil Khairagarh, District Rajnandgaon (C.G.)

8 - Kumud Bai D/o Umed Sao Aged About 23 Years R/o Village Gandai,

Tahsil Khairagarh, District Rajnandgaon (C.G.)

9 - Ketki Bai W/o Dr. Swasth Lal Tamrakar Aged About 30 Years Tamarapara,

Durg (C.G.)

10 - Beni Bai (Died) Through Lrs As Per Honble Court Order Dated 11-07-

2024

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10.1 - (A) Prabhat Kumar Tamrakar S/o. Kamta Prasad Tamrakar Aged About

30 Years R/o. Near Jain Mandir, Durg (C.G.)

10.2 - (B) Alok Tamrakar S/o. Kamta Prasad Tamrakar Aged About 26 Years

R/o. Near Jain Mandir, Durg (C.G.)

10.3 - (C) Arvind Tamrakar S/o. Kamta Prasad Tamrakar Aged About 24 Years

R/o. Near Jain Mandir, Durg (C.G.)

11 - Santoo Sao (Died) Through Lrs As Per Honble Court Order Dated 19-08-

2025.

11.1 - Smt. Lata Devi Tamrakar W/o Late Shri Santo Sao Aged About 70

Years Village- Tamer, Nawagaon, Post- Salhewara, Tehsil- Salhewara, District

Khairagarh Chhuikhadan Gandai, C.G.

11.2 - Rajkumar Tamrakar S/o Late Shri Santu Sao Aged About 45 Years

Village- Tamer, Nawagaon, Post- Tamer, Nawagaon, Post- Salhewara, Tehsil-

Salhewara, District Khairagarh Chhuikhadan Gandai, C.G.

11.3 - Smt. Pushpadevi (Died) Through L.R. Priya Mandavi D/o Jairam

Mandavi Aged About 21 Years R/o Ward No. 06, Gandai, District Khairagarh

Chhuikhadan Gandai, C.G.

11.4 - Jitesh Tamrakar S/o Late Shri Santu Sao Aged About 38 Years Village-

Tamer, Nawagaon, Post- Salhewara, Tehsil- Salhewara, District Khairagarh

Chhuikhadan Gandai, C.G.

11.5 - Yugal Kishor Tamrakar S/o Late Shri Santu Sao Aged About 35 Years

R/o Ward No. 06, Gandai, Post And Tehsil Gandai, District Khairagarh

Chhuikhadan Gandai, C.G.

11.6 - Laxmi Bai W/o Anil Tamrakar Aged About 32 Years R/o Lal Bahadur

Nagar, Ward No. 06, Tehsil- Lal Bhadur Nagar, Block- Dongargarh, District

Rajnandgaon, C.G.

12 - Ganesh Sao (Died) Through Lrs As Per Honble Court Order Dated 19-

08-2025.

12.1 - Smt. Usha Devi W/o Radhe Tamrakar Aged About 67 Years Village

Tamerpara, Durg, C.G.

12.2 - Ashwani Tamrakar S/o Ganesh Sao Tamrakar Aged About 65 Years

Gandai, (K.C.G.)

12.3 - Smt. Indu Tamrakar W/o Shri Tekchandra Tamrakar Aged About 60

Years Village- Tamerpara, Durg, Besides Sharda Talkies, Durg, C.G.

12.4 - Smt. Kiran Tamrakar W/o Shri Chandradeep Tamrakar Aged About 58

Years Village- Tamerpara, Durg, C.G.

... Respondents

For Appellants/Defendant No. 3: Mr. Hemant Kumar Agrawal and

Ms. Vaishali Jeswani, Advocates

For Respondents No. 2 to 9 and

10 (a) to (c)

: Mr. Priyank Rathi, Advocate

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Hon’ble Shri Justice Rakesh Mohan Pandey

C A V Judgment

1.This appeal under Section 96 of the Code of Civil Procedure has been

preferred by the legal representatives of defendant No. 3 against the

judgment and decree passed by the Additional Judge, Khairagarh to

the Court of District Judge, Rajnandgaon in Civil Suit No. 7-A/87 dated

09.01.1993, whereby the learned trial Court decreed the suit filed by

the plaintiffs and it was held that the sale deed dated 21.02.1976

executed by defendant No. 1 in favour of defendants No. 2 and 3 is not

binding on the plaintiffs and further declared the plaintiffs owner of the

suit property mentioned in Schedule-A. The learned trial Court ordered

the original defendant No. 3, Madhav Sao to hand over the possession

of the suit property to the plaintiffs.

2.The plaintiffs pleaded that the suit property bearing Survey No. 3/1

admeasuring 32 decimal situated in Village Kopebhatha was

purchased by Ummed Sao from Lal Dogendra Shah for the sale

consideration of Rs. 1,500/- through a registered sale deed dated

16.11.1957. The plaintiffs constructed a house in the year 1965-66 and

left some area open. In the year 1967-68, the father and mother of

defendant No.1 were murdered, and defendant No. 1 was sent to jail

for charges of murder of his parents. In the year 1969, defendant No. 1

was released from jail and approached the original plaintiff-Ummed

Sao and requested shelter. The original plaintiff-Ummed Sao, provided

him shelter, and he started residing in some portion of the suit house

with the permission of the original plaintiff. Pancham Sao, the father of

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defendant No. 1, was the uncle of the original plaintiff-Ummed Sao,

and he used to live in the plaintiff’s house whenever he visited Gandai

or Pandariya. Pancham Sao died on 19.02.1968, and during his

lifetime, he never challenged the sale deed dated 16.11.1957.

Defendant No. 1 entered into an agreement on 07.05.1975 with the

plaintiff and assured that he would vacate the part of the suit house in

the month of May 1975. He also admitted the fact that he has no right

or title over the suit property, and he was residing there with the

permission of the original plaintiff. Defendant No. 1 failed to provide the

vacant possession to the plaintiff on 08.05.1975 and granted shelter to

one Chandrikaprasad Pandey. The original plaintiff published the notice

in Dainik Savera Newspaper on 13.02.1976 and Dainik Deshbandhu

Newspaper on 21.02.1976, Raipur Edition, urging the general public

not to purchase the subject suit property. On 21.02.1976, the original

defendant No. 1 executed a sale deed in favour of defendant No. 2-

Ganesh Sao and defendant No. 3 Madhow Sao for a sale

consideration of Rs.40,000/-. In the year 1976, defendant No. 1 was

residing in Village Navagaon. A proceeding under Section 145 of

Cr.P.C. was drawn, and it was registered as Misc. Case No. 179/76.

The Sub-Divisional Magistrate passed an order on 13.10.1978 and

held that defendant No. 1 Santoo Sao was residing in the suit property

and defendants No. 2 and 3 are in possession. The plaintiffs preferred

a revision against the order dated 13.10.1978, and it was dismissed

vide order dated 22.11.1979 by the learned Additional Sessions Judge.

Chandrika Prasad Pandey vacated the suit house in the first week of

May 1980, but handed over the keys to defendant No. 2 Ganesh Sao.

The original plaintiff Ummend Sao filed a suit seeking a declaration of

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title, possession, permanent injunction and further declaration that the

sale deed dated 21.02.1976 executed by defendant No.1 in favour of

defendants No. 2 and 3 is not binding upon the plaintiffs and they have

no right over the suit property.

3.Defendant No. 1 filed a written statement and denied the plaint

averments. He pleaded that his father, Pancham Sao, had trust in the

original plaintiff, Ummed Sao and had business relations too. It is

pleaded that the suit property was purchased by his father, Pancham

Sao, and the consideration was paid by him, but Ummed Sao, in a

deceitful manner, got the sale deed registered in his name.

4.Defendant No. 3 filed a written statement and denied the plaint

averments. He stated that he was in possession of the suit property. It

is further stated that the financial condition of Ummed Sao was not

sound, and he was not in a position to arrange Rs.1,500/- in the year

1957 to purchase the suit land. It is pleaded that Pancham Sao was an

able person, and Ummed Sao was working under Pancham Sao. It is

also pleaded that the sale consideration of Rs.1,500/- was given by

Pancham Sao to Ummed Sao to purchase the suit property, but

Ummed Sao got the sale deed registered in his name. It is also stated

that mere entry in the revenue records would not confer any right.

Defendant No. 3 further pleaded that in the year 1965, the house was

constructed over the suit property by Pancham Sao and the open land

area was permitted to be used by the original plaintiff, Ummed Sao. It

is also pleaded that Pancham Sao stayed in the suit house as an

owner till his death, and he has no right or title over the suit property. It

is pleaded that the document dated 07.05.1975 is a forged document.

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It is also pleaded that the suit property was sold by defendant No.1 by

executing a registered sale deed dated 21.02.1976 for a sale

consideration of Rs.40,000/- in favour of defendants No. 2 and 3. He

further pleaded that the advance amount of Rs.5,000/- was received by

Pancham Sao during his lifetime. It is also pleaded that the cause of

action arose on 21.02.1976, whereas the suit was filed on 08.05.1980

after 12 years, thus, the same is barred by limitation.

5.The learned trial Court framed issues as under:-

1.A)Whether the suit property was purchased by the

original plaintiff- Ummed Sao from the money provided

by the father of defendant No. 1 and it remained in his

ownership ?

B)Whether the original plaintiff- Ummed Sao

fraudulently got registered the sale deed in his favour

taking advantage of close relationship between Ummed

Sao and the father of defendant No. 1?

C)Whether the plaintiff- Ummed Sao is not the real

owner of the suit property ?

2.Whether defendant No.1 was residing in the suit house

with the prior permission of the original plaintiff since

1969 ?

3.A)Whether the plaintiff took the signature of

defendant No.1 on a blank stamp paper on 07.05.1975 ?

B)Whether the plaintiff wrote contents of the

agreement dated 07.05.1975 by deceiving the defendant

No.1 and without his knowledge ?

4.Whether the sale deed dated 21.02.1976 granted valid

title of the suit property to the defendants No. 2 and 3 ?

5.Whether the suit is barred by limitation ?

6.Costs and expenses ?

Additional issues:-

1.Whether the sale deed dated 21.02.1976 was

executed in favour of the defendants No. 2 and 3 without

sale consideration ?

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2.Whether the defendant No. 2 malafidely sold his part

of undivided suit house to the defendant No. 3 through the

registered sale deed dated 09.05.1980 without acquiring

any title thereto? If so, what is the effect ?

6.The original plaintiff exhibited the registered sale deed dated

16.11.1957 (Exhibit P/1) executed by Lal Dongendra Shah in favour of

the original plaintiff, Ummed Sao. The plaintiff exhibited the original

sale deed before the learned trial Court. Exhibit P/3 is the registered

sale deed dated 21.02.1976 executed by Santoo Sao in favour of

Ganesh Ram and Madhow Prasad. Exhibit P/5 is a transfer deed dated

09.07.1980, whereby Ganesh Sao transferred his share in favour of

Madhow Prasad for a sale consideration of Rs.11,000/-. Exhibit P/6 to

Exhibit P/10 are postal receipts and a copy of legal notices. Exhibit

P/11 is the order dated 22.11.1979 passed by the Additional Sessions

Judge, Rajnandgaon, against the order dated 13.10.1978 passed by

the Sub-Divisional Magistrate, Khairagarh. Exhibit P/13 and Exhibit

P/14 are revenue records wherein the name of Ummed Sao is entered

against the suit property. Exhibit P/15 and Exhibit P/16 are Newspaper

clips. Exhibit P/17 and Exhibit P/18 are orders of diversion. Exhibit

P/23 is a copy of Rin-Pustika (Land account). Exhibit P/25 to Exhibit

P/34 are revenue records, wherein the name of Ummed Sao is

mentioned as the owner and title holder of the suit property. Exhibit

P/36 is the assessment order of the original plaintiff, Ummed Sao, for

the years 1957-58 issued by the Income-Tax Department and

according to this document, the total income of the original plaintiff in

the said financial year was Rs.4,100/-. Vide Exhibit P/37, Exhibit P/38,

Exhibit P/39 and Exhibit P/40, the original plaintiff purchased some

more plots from Dhurwa, Rukhmin Bai. Bagela and Piyar.

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7.Dharamraj S/o Ummed Sao was examined as PW-1. Ramji Lal

Deshmukh was examined as PW-2. Mahesh Sao was examined as

PW-3. Whereas, defendant No. 3 (Madhow Prasad) was examined as

DW-1, Itwari Ram as DW-2, Shanker Prasad Choubey as DW-3,

Laxman Singh as DW-4, Swadesh Pandey as DW-5, Sonu Ram as

DW-6 and Tirath Prasad as DW-7. The defendants did not exhibit any

documents. Ummed Sao died in the year 1981 after filing the suit.

Defendant No. 1 though, filed his written statement, but was proceeded

ex parte.

8.The learned trial Court found Ex. P/1, sale deed dated 16.11.1957,

genuine and authentic on the ground that the original plaintiff produced

it from lawful possession, and it is 30-year-old document. The learned

trial Court further held that neither the plaintiff pleaded that the sale

consideration was provided by Pancham Sao to purchase the suit

property nor did defendant No. 1 lead evidence to prove this fact. The

learned trial Court held that the sale deed Ex. P/1 cannot be held as a

benami transaction. The learned trial Court also held that as the

defendants disputed the due execution of the sale deed, Ex. P/1, the

primary burden to prove that it was a forged document was on the

defendant. It is held that Lal Dogendra Shah, the owner of the suit

property, was alive at that time, but the defendants failed to examine

him to prove that the sale consideration was provided by Pancham

Sao. Defendant No. 3 in para- 9 of his written statement admitted the

fact that he had received a legal notice issued by Ummed Sao, wherein

it was stated that the he is the title holder of the suit property and thus,

the learned trial Court has held that defendants No. 2 and 3 had the

knowledge with regard to the ownership of Ummed Sao of the suit

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property. The learned trial Court further held that defendants No. 2 and

3 were not the bona fide purchasers. The learned trial Court held that

the original plaintiff-Ummed Sao, was the brother of Pancham Sao, and

this fact has been admitted by defendant No. 3 in his evidence. He

admitted the fact that the financial status of Ummed Sao was sound.

The learned trial Court further placed reliance on Ex. P/36, assessment

of income of Ummed Sao for the year 1957-58. The learned trial Court

further placed reliance on the sale deed executed in favour of the

original plaintiff, Ummed Sao, vide Ex. P/37 for the sale consideration

of Rs.100/-, Ex. P/38, sale deed worth Rs.2,000/-, and Ex. P/40, sale

deed worth Rs.100/-. The learned trial Court also held that after the

murder of the parents of defendant No. 1, Santoo Sao sought shelter in

the house of Ummed Sao. It is also held that the suit house was

constructed under the supervision of Ummed Sao, and Pancham Sao

was never in possession of the suit house.

9.The revenue documents would show that the suit property was entered

in the name of Ummed Sao. The order of diversion was also passed in

favour of Ummed Sao. The learned trial Court recorded a finding that

the sale deed, Ex. P/1 is not the outcome of fraud; rather, it was a sale

deed executed by Lal Dogendra Shah in favour of Ummed Sao. The

learned trial Court held that the agreement dated 07.05.1975, Ex. P/59

was executed by Santoo Sao himself, and it was drafted by PW-2

Ramji Lal Deshmukh. It is further held that defendant No. 1 never

acquired title or right over the suit property and therefore, he had no

right to execute a sale deed in favour of defendants No. 2 and 3. The

learned trial Court further held that the cause of action arose on

21.02.1976 when the sale deed was executed by defendant No. 1 in

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favour of defendants No. 2 and 3, and thus, the suit was filed within a

period of 12 years from the said date.

10.Mr. Hemant Kumar Agrawal, learned counsel appearing for the

appellants/defendant No. 3, would submit that DW-1 Madhow Prasad,

in his evidence, categorically stated that the financial condition of

Ummed Sao was not sound and Ummed Sao deceitfully got the sale

deed registered in his favour. Mr. Agrawal would further submit that

PW-3 Mahesh Sao, in para-5, has admitted the fact that the financial

condition of Pancham Sao was sound as he was a moneylender.

Madhow Prasad has stated that Ummed Sao never remained in

possession of the suit property, and likewise, DW-2 Itwari Ram has

stated similarly. Mr. Agrawal would also submit that DW-3 Shanker

Prasad Choubey has stated that the suit house was constructed by

Pancham Sao in the year 1957-58, and Chandrikaprasad Pandey was

a tenant. The witnesses- DW-4 Laxman Singh, DW-5 Swadesh

Pandey, DW-6 Sonu Ram and DW-7 Tirath Prasad have supported the

case of defendant No. 3. Mr. Agrawal would further contend that PW-1

Dharamraj has admitted the fact that the suit house was in possession

of Pancham Sao, and open land is in their possession. He would

contend that the mere entries in the revenue records would not confer

any right in favour of Ummed Sao. He would also contend that the

registration of the sale deed in favour of Ummed Sao would not confer

title in his favour. He would state that the suit was not filed within 12

years from the date of the execution of the sale deed dated

16.11.1957. Thus, the suit was barred by limitation. Mr. Agrawal would

further state that the sale deed was executed by defendant No. 1 in

favour of defendants No. 2 and 3 on 21.02.1976, and for the

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cancellation of the sale deed, the limitation period according to Article

59 of the Limitation Act is 03 years, which expired on 20.02.1979,

whereas the suit was filed on 08.05.1980. Thus, the suit was barred by

limitation. Mr. Agrawal has placed reliance on the judgment passed by

the Hon’ble Supreme Court in the matter of Mallavva and Another Vs.

Kalsammanavara Kalamma (Since Dead) by Legal Heirs and

Others, reported in 2024 SCC OnLine SC 3846, wherein it is held that

as the suit was filed for cancellation of the sale deed and recovery of

possession, which would suggest that the plaintiff has already lost his

title, and therefore, the period of limitation would be three years and

not twelve years. He would pray to set aside the judgment and decree

passed by the learned trial Court.

11.Mr. Priyank Rathi, learned counsel appearing for respondents No. 2 to

9 and 10 (a) to (c) would contend that the defendants neither pleaded

nor proved the ingredients of adverse possession. He would contend

that defendant No. 1 failed to plead and prove the date of hostile

possession and the period of its continuation. He would further submit

that defendant No. 1 failed to file counter claim seeking relief of

ownership on the principle of adverse possession. In this regard, Mr.

Priyank Rathi has placed reliance on the judgment passed by the

Hon’ble Supreme Court in the matter of Kishundeo Rout & Ors. Vs.

Govind Rao & Ors., Neutral Citation: 2025 INSC 956.

12.Mr. Rathi would further argue that the defendants in their written

statement have pleaded independent title on the ground that the suit

property was purchased by Pancham Sao; at the same time, defendant

No. 1 has taken the plea of adverse possession. He would also argue

that the claim of independent title and adverse possession at the same

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time amounts to contradictory pleas. In this regard, Mr. Rathi has

placed reliance on the judgment passed by the Hon’ble Supreme Court

in the matter of Government of Kerala and Another Vs. Joseph and

Others, reported in (2023) 17 SCC 400.

13.With regard to the period of limitation, Mr. Rathi would submit that the

original plaintiff filed the suit for declaration of title and recovery of

possession based on title. He would contend that the computation of

the limitation period is to be reckoned in accordance with Article 65 of

the Limitation Act. He would also contend that the substantial relief

sought by the plaintiffs is of possession based on title. In this regard,

he has placed reliance on the judgment passed by the Hon’ble

Supreme Court in the matter of Mallavva (supra).

14.Mr. Rathi would state that the suit property was purchased by the

original plaintiff, Ummed Sao, from Lal Dogendra Shah through a

registered sale deed dated 16.11.1957 for a sale consideration of

Rs.1,500/-. The application moved by the original plaintiff for diversion

was allowed by the competent authority and the suit house was

constructed by the original plaintiff, Ummed Sao. He would contend

that defendant No.1 was provided shelter by the original plaintiff and

defendant No. 1 never acquired title over the suit property; therefore,

he had no authority of law to execute a sale deed in favour of

defendants No. 2 and 3. He would also contend that the defendants

could not adduce a single documentary evidence to establish the fact

that defendant No. 1 had never acquired the right over the suit

property. He has placed reliance on the judgment passed by the

Hon’ble Supreme Court in the matter of Kizhakke Vattakandiyil

Madhavan (Dead) Thr. LRs. Vs. Thiyyurkunnath Meethal Janaki

14

and Ors, 2024 SCC OnLine 517, wherein it is held that the execution

of the sale deed without ownership does not entitle the transferee or

his successor to claim any right based on such deed. Mr. Rathi would

submit that the appeal deserves to be dismissed.

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

learned Court below with utmost circumspection.

16.The Questions for Determination would be:-

(i)Whether the learned trial Court rightly decreed the suit ?

(ii)Whether the defendant No. 1 had the authority of law to

execute the sale deed in favour of defendants No. 2 and 3 ?

17.The admitted facts are that the late Ummed Sao purchased the suit

property bearing Survey No. 3/1 ad-measuring 32 decimal through a

registered sale dated 16.11.1957 from one Lal Dogendra Shah. The

parents of defendant No.1 were murdered in the year 1967-68, and

defendant No. 1 was arrested in the aforesaid crime. He was acquitted

in the year 1969. A house is constructed over half of the suit property of

open land. Open land is in possession of the plaintiffs. The plaintiffs are

the legal heirs of late Ummed Sao. Defendant No. 1 alienated the suit

property through a registered sale deed dated 21.02.1976 to

defendants No. 2 and 3. Subsequently, defendant No. 2 executed a

relinquishment deed in favour of defendant No. 3.

18.The plaintiffs filed the civil suit claiming therein the relief of declaration

of title, possession and permanent injunction. They sought a

declaration that the sale deed executed by defendant No. 1 in favour of

defendants No. 2 and 3, dated 21.02.1976, is not binding upon them.

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19.Defendants No. 1 and 3 filed a written statement and denied the plaint

averments.

20.The owner of the suit property was Lal Dogendra Shah, and this fact

has not been disputed by the defendants. He executed a sale deed in

favour of late Ummed Sao on 16.11.1957 vide Ex. P/1. Defendants No.

1 and 2 took a plea that the suit property was purchased by late

Ummed Sao in favour of Pancham Sao. Pancham Sao is the father of

the defendant No.1.

21.Perusal of Ex. P/1, the sale deed dated 16.11.1957 would show that

the sale deed was executed by Shri Lal Dogendra Shah in favour of

Ummed Sao for a sale consideration of Rs.1,500/- and possession was

also handed over. The sale deed was drafted by PW-2 Ramji Lal

Deshmukh. The recital of the sale deed would show that there was a

transaction between Lal Dogendra Shah and Ummed Sao, and there is

no whisper that the suit property was purchased by Ummed Sao on

behalf of Pancham Sao. PW-2 has proved the contents of Ex. P/1. In

cross-examination, he stated that the financial condition of Ummed

Sao was sound. Further, the original sale deed was produced by the

plaintiffs before the learned trial Court.

22.Taking into consideration the recital of the sale deed and evidence of

Ramji Lal (PW-2), in my opinion, the sale deed was not an outcome of

fraud.

23.With regard to the benami transaction, as argued by Mr. Hemant

Kumar Agrawal, the sale deed was executed by Lal Dogendra Shah in

favour of Ummed Sao, and it was a valid contract. The defendants

could not establish that there was any benami transaction between the

parties, and a mere assertion that the suit property was purchased by

16

late Ummed Sao for late Pancham Sao is not admissible in the

absence of clinching evidence.

24.A plea of fraudulent transaction was taken by defendants No. 1 and 3;

therefore, the burden was on the defendants to prove this fact.

Defendant No. 1 did not appear in the witness-box, and defendant No.

3, Madhow Prasad, failed to prove this fact. According to the provisions

of Section 102 of the Indian Evidence Act, 1872, the burden of proof in

a suit or proceeding lies on that person who would fail if no evidence at

all were given on either side. In the year 1992, Lal Dogendra Shah was

alive, but the defendants failed to examine that witness to prove the

factum of fraud or the fact that the suit property was purchased by

Ummed Sao on behalf of the late Pancham Sao.

25.DW-1 Madhow Prasad has not deposed with regard to the execution of

the sale deed. He pleaded that in the year 1957, the financial condition

of Ummed Sao was not sound to make payment of the sale

consideration to Lal Dogendra Shah. The income tax return of Ummed

Sao, placed on record as Ex. P/36, would show that late Ummed Sao

was financially sound, and he was an income tax payee. He purchased

various immovable properties vide Exhibit P/37 to Exhibit P/40. Thus,

the submissions made Mr. Hemant Kumar Agrawal with regard to the

financial condition of late Ummed Sao cannot be accepted.

26.Perusal of the revenue documents Exhibit P/25 to Exhibit P/34 would

reveal that the suit property was recorded in the name of Ummed Sao.

Defendant No. 1 could not adduce documentary evidence to establish

the fact that the suit property was ever recorded in his name. The

witnesses examined by the plaintiffs have proved the fact that the

17

possession of defendant No.1 was permissive in nature and therefore,

defendant No.1 had no authority of law to execute the sale deed in

favour of defendants No. 2 and 3. Further, the alienation of the property

by defendant No. 2 in favour of defendant No. 3 by executing a

relinquishment deed is also bad-in-law.

27.In the matter of Kizhakke Vattakandiyil Madhavan (supra), the

Hon’ble Supreme Court, in para- 18, held as under:-

“18.The High Court as also the Trial Court have

held that since the deeds were proved, implying

that Cheruthey had the right to execute the lease

deed on 14

th

July 1910 so far the deed of release

is concerned, the same might entitle her to be the

beneficiary as a lessee thereof. But it would be

trite to repeat that even if subsistence of a deed is

proved in evidence, the title of the executing

person (in this case Chiruthey) does not

automatically stand confirmed. If a document

seeking to convey immovable property ex-facie

reveals that the conveyer does not have the title

over the same, specific declaration that the

document is invalid would not be necessary. The

Court can examine the title in the event any party

to the proceeding sets up this defence. Chiruthey

could not convey any property over which she did

not have any right or title. Her right, if any, would

stem from the second deed of lease (Exhibit A-1).

We are conscious of the fact that no claim was

made before any forum for invalidating the deed

dated 14

th

July 1910 (Exhibit A-20). But in

absence of proper title over the subject property,

that lease deed even if she was its sole lessor

would not have had been legally valid or

enforceable. If right, title or interest in certain

property is sought conveyed by a person by an

instrument who herself does not possess any

such form of entitlement on the subject being

conveyed, even with a subsisting deed of

conveyance on such property, the grantee on her

successors-in-interest will not have legal right to

enforce the right the latter may have derived from

such an instrument. We, however, have not

disturbed the transaction arising from Exhibit A-20

as the two legal heirs of Madhavan were also the

lessors therein and to that extent, the document

marked as Exhibit A-20 would not have collapsed

for want of conveyable title, right or interest. What

18

she got back by way of the document marked as

Exhibit A-1 was limited right as that of a lessee

and not as a successor of her first husband

Madhavan (since deceased). Moreover, this lease

(Exhibit A-1) was also for a period of twelve years

and the re-lease deed made in the year 1925

which is Exhibit A-2 could not operate as by that

time, the entitlement of Kuttiperavan over the

subject property also stood lapsed as the

document marked as Exhibit A-1 also had a

duration of twelve years. No evidence has been

shown before us as to how Kuttiperavan, in the

capacity of a lessee could exercise his right after

the term of lease granted to him was over. ”

28.With regard to the issue of limitation, the sale deed was executed by

defendant No.1 in favour of defendants No. 2 and 3 on 21.02.1976,

whereas the suit for declaration of title and possession was filed on

08.05.1980.

29.Mr. Hemant Agrawal has placed reliance on the judgment passed in the

matter of Mallavva (supra), wherein the Hon’ble Supreme Court in

para- 38 held as under:-

“38.The dictum as laid in Rajpal Singh Vs.

Saroj (deceased) through Legal

Representatives and Another, (2022) 15 SCC

260 cannot be made applicable to the facts and

circumstances of the case on hand. The reason is

simple. Ordinarily when, a suit is filed for

cancellation of Sale Deed and recovery of

possession, the same would suggest that the title

of the plaintiff has already been lost. By seeking to

get the Sale Deed set aside on the grounds as

may have been urged in the plaint, the plaintiff

could be said to be trying to regain his title over

the suit property and recover the possession. In

such circumstances, the period of limitation would

be three years and not twelve years.”

30.In the matter of Rajpal Singh (Supra), the judgment was delivered by

a bench of two Hon’ble Judges of the Supreme Court, whereas

Sopanrao vs. Syed Mehmood, 2019 (7) SCC 76, was rendered by a

19

bench of three Hon’ble Judges of the Supreme Court. In Sopanrao

(supra), it is held that since the suit was not filed only for a declaration

but the plaintiff also sought possession of the suit land, and the period

of the limitation for instituting a suit for possession based on title would

be twelve years. Consequently, the suit would be within the limitation

period. It is further clarified that merely because one of the reliefs

sought is declaratory in nature does not imply the forfeiture of the

twelve-year limitation period. The relevant para- 9 is reproduced as

under:-

“9. It was next contended by the learned counsel

that the suit was not filed within limitation. This

objection is totally untenable. Admittedly, the

possession of the land was handed over to the

Trust only in the year 1978. The suit was filed in

the year 1987. The appellants contend that the

limitation for the suit is three years as the suit is

one for declaration. We are of the view that this

contention has to be rejected. We have culled out

the main prayers made in the suit hereinabove

which clearly indicate that it is a suit not only for

declaration but the plaintiffs also prayed for

possession of the suit land. The limitation for filing

a suit for possession on the basis of title is 12

years and, therefore, the suit is within limitation.

Merely because one of the reliefs sought is of

declaration that will not mean that the outer

limitation of 12 years is lost. Reliance placed by

the learned counsel for the appellants on the

judgment of this Court in L.C. Hanumanthappa v.

H.B. Shivakumar is wholly misplaced. That

judgment has no applicability since that case was

admittedly only a suit for declaration and not a

suit for both declaration and possession. In a suit

filed for possession based on title the plaintiff is

bound to prove his title and pray for a declaration

that he is the owner of the suit land because his

suit on the basis of title cannot succeed unless he

is held to have some title over the land. However,

the main relief is of possession and, therefore, the

suit will be governed by Article 65 of the Limitation

Act, 1963. This Article deals with a suit for

possession of immovable property or any interest

therein based on title and the limitation is 12

years from the date when possession of the land

20

becomes adverse to the plaintiff. In the instant

case, even if the case of the defendants is taken

at the highest, the possession of the defendants

became adverse to the plaintiffs only on

19.08.1978 when possession was handed over to

the defendants. Therefore, there is no merit in this

contention of the appellants.”

31.Taking into consideration the law laid down by the Hon’ble Supreme

Court in the matter of Sopanrao (supra), as the suit was filed by the

plaintiff for declaration of title along with possession, the suit was well

within limitation as it was filed before the expiry of 12 years from the

date of execution of the sale deed.

32.With regard to the plea of adverse possession, in the written statement,

there is no foundation for the plea of adverse possession. Defendant

No. 1 could not plead and prove the fact that on what date he came

into possession, what was the nature of his possession, whether the

factum of his possession was known to the legal claimants and how

long his possession continued. The Hon’ble Supreme Court in the

matter of Kishundeo Rout (supra), in paras- 19, 20 and 30 held as

under:-

“19.It is a settled position of law that the

foundation for the plea of adverse possession

must be laid in the pleadings and then an issue

must be framed and tried. A plea not properly

raised in the pleadings or in issues at the stage

of trial would not be permitted to be raised for the

first time at the stage of First Appeal Under

Section 96 of the Code of Civil Procedure (CPC).

20.The plea of adverse possession is not

always a legal plea. Indeed, it is always based on

facts which must be asserted and proved. A

person who claims adverse possession must

show on what date he came into possession,

what was the nature of his possession, whether

the factum of his possession was known to the

legal claimants and how long his possession

continued. He must also show whether his

possession was open and undisturbed. These are

21

all questions of fact and unless they are asserted

and proved, a plea of adverse possession cannot

be inferred from them. Therefore, in normal cases

an appellate Court will not allow the plea of

adverse possession to be raised before it. There

is no doubt some cases in which the plea will be

allowed because in some form the allegation

upon which it can be raised was made at the time

and the facts necessary to prove the plea were

brought before the court and proved. Such a case

is the one of which the decision is reported in

Municipal Board, Etawah v. Mt. Ram Sri and Anr.

reported in MANU/UP/0113/1931 : A.I.R. 1931 All.

670. In that case the Plaintiffs based their suit on

title extending over a period of thirty years. “The

Plaintiffs” case was that Plaintiff 1 was the owner

of the land and she had on that plot four small

shops fetching a rent of about Rs.80 a month.

Plaintiff 2 is her lessee. The shops were burnt

down in June, 1926 and the land was laid vacant.

The Plaintiffs made an application to the

Municipal Board for permission to build again on

the land, but this permission was refused on 27

th

August, 1926, on the ground that the Municipal

Board was the owner of the land and not the

Plaintiffs.” The learned Judges of the Allahabad

High Court held that a plea of adverse possession

extending over a period of thirty years could be

read into this claim and therefore although it was

not specifically raised in the plaint yet it could be

raised at a later stage. In other words, what they

held was that the plea of adverse possession was

included in the plea of title. In coming to this

conclusion the learned Judges no doubt took

notice of the fact that the Plaintiffs had clearly

stated that actual physical possession of the

property in dispute was with them.

30.The above discussion leads us to the only

conclusion, and that is, that, unless the plea of

adverse possession has been specifically raised

in the pleadings, put in issue, and then cogent

and convincing evidence led on a multitude of

points, and an opportunity to refute the case

made out by the Plaintiff, availed of by the

Defendant, the plea of adverse possession

cannot be allowed to be flung as a surprise, on an

unsuspecting Defendant, for the first time in

appeal.”

22

33.Taking into consideration the pleadings made in the written statement,

evidence led by the defendants and the law laid down by the Hon’ble

Supreme Court, in my opinion, the defendants could not establish their

right over the property by way of adverse possession.

34.Further, defendant No. 1 has claimed his title based on title over the

suit property on the ground that it was purchased by Pancham Sao and

at the same time, he has taken the plea of adverse possession. It is a

well-settled position of law that the claim of independent title or

adverse possession at the same time amounts to contradictory pleas.

35.The Hon’ble Supreme Court in the matter of Joseph (supra), in paras-

40, 40.1 and 40.2 held as under:-

“40.Claim of independent title and adverse

possession at the same time amounts to

contradictory pleas.

40.1Annasaheb Bapusaheb Patil v. Balwant,

(1995) 2 SCC 543 (three-Judge Bench)

elaborated this principle as: (SCC p. 554, para

15)

“15. Where possession can be

referred to a lawful title, it will not be

considered to be adverse. The reason being

that a person whose possession can be

referred to a lawful title will not be permitted

to show that his possession was hostile to

another ‘s title. One who holds possession on

behalf of another, does not by mere denial of

that other’s title make his possession adverse

so as to give himself the benefit of the statute

of limitation. Therefore, a person who enters

into possession having a lawful title, cannot

divest another of that title by pretending that

he had no title at all.”

40.2This principle was upheld in Mohan Lal v.

Mirza Abdul Gaffar, (1996) 1 SCC 639 (two-Judge

Bench): (SCC pp. 640-41, para 4)

“4.As regards the first plea, it is

inconsistent with the second plea. Having

come into possession under the agreement,

23

he must disclaim his right thereunder 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 of

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 the admits by implication that he

came into possession of the land lawfully

under the agreement and continued to

remain in possession till date of the suit.

Thereby the plea of adverse possession in

not available to the appellant.”

The Court in Uttam Chand v. Nathu Ram, (2020)

11 SCC 263 has reiterated this principle of

adverse possession.”

36.Taking into consideration the above-discussed facts and the law laid

down by the Hon’ble Supreme Court, in my opinion, the learned trial

Court rightly decreed the suit. A perusal of evidence and documents

would show that defendant No. 1 had no authority of law to execute the

sale deed in favour of defendants No. 2 and 3. The Questions for

Determination are answered accordingly.

37.As a result, this appeal fails and is hereby dismissed.

38.No order(s) as to Cost(s).

Sd/-

(Rakesh Mohan Pandey)

Judge

vatti