# Mohd. Islam v. Sri Shamshul Ansari &Anr

- **Citation:** (2019) 1 ILRA 1388
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-06
- **Case number:** Second Appeal No. 74 of 1987
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-islam-v-sri-shamshul-ansari-anr-44417
- **Pages:** 7

## Headnote

Sri Kameshwar Nath Tripathi, Sri A.K.
Upadhyaya, Sri A.P.S. Rathore ,Dr.Vinod
Kumar Rai, Sri Ganga Singh, Sri K.S.
Rathor, Sri Manish Kumar Nigam, Sri
Rajeshwari Singh, Sri Shivendra Nath
Singh
A.
Second
Appeal
-
Substantial
Question of Law-Principle on adverse
possession laid down-Suit founded on
ownership-No pleading on adverse
possession
in
court
below-It
presupposes ownership of else and
person relying on it must not be owner,
but has title by prescription- Plea on
title
and
adverse
possession
are
mutually
inconsistent-Moreover,
possession however long not means
adverse to owner-It means hostile
possession in denial of title of true
owner-No
Substantial
Question
of
Law-Second Appeal lack merit. (E-1)

## Text

1388 INDIAN LAW REPORTS ALLAHABAD SERIES
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.08.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.

Second Appeal No. 74 of 1987

Mohd. Islam ...Appellant
Versus
Sri Shamshul Ansari &Anr. ...Respondents

Counsel for the Appellant:
Sri S.K. Vemra, Sri Bipin Lal Srivastava

Counsel for the Respondents:
Sri Kameshwar Nath Tripathi, Sri A.K.
Upadhyaya, Sri A.P.S. Rathore ,Dr.Vinod
Kumar Rai, Sri Ganga Singh, Sri K.S.
Rathor, Sri Manish Kumar Nigam, Sri
Rajeshwari Singh, Sri Shivendra Nath
Singh
A.
Second
Appeal
-
Substantial
Question of Law-Principle on adverse
possession laid down-Suit founded on
ownership-No pleading on adverse
possession
in
court
below-It
presupposes ownership of else and
person relying on it must not be owner,
but has title by prescription- Plea on
title
and
adverse
possession
are
mutually
inconsistent-Moreover,
possession however long not means
adverse to owner-It means hostile
possession in denial of title of true
owner-No
Substantial
Question
of
Law-Second Appeal lack merit. (E-1)

(Delivered by Hon'ble Sudhir Agarwal J.)

1. Heard Sri S.K.Verma, Senior
Advocate, assisted by Sri Bipin Lal
Srivastava, learned counsel for appellant,
Sri M.K.Nigam, learned counsel for
respondent.

2. This is plaintiff's appeal under
Section 100 of Code of Civil Procedure,
1908
(hereinafter
referred
to
as
"C.P.C.")arising from judgment dated
23.10.1986 and decree dated 10.11.1986
passed
by
Sri
R.M.Chauhan,
IVth
Additional District and Sessions Judge,
Ghazipur in Civil Appeal No.172 of 1982
whereby appeal has been allowed and
judgment of Trial Court dated 25.02.1982
and decree dated 05.03.1982 passed by
Sri
Prakash
Chandra
Mishra,
IInd
Additional
Munsif,
Mohamdabad,
Ghazipur, in Original Suit No.130 of 1979
has been set aside.

3. Trial Court had decreed plaintiff's
suit
granting
permanent
injunction
restraining defendants-respondents from
interfering in possession of plaintiff in
respect of house, A, B, C, D, E, F, G, H,
as shown in map appended to the plaint
and also hand over possession of disputed
property to plaintiff. It is this judgment,
which has been reversed by Lower
Appellate Court (hereinafter referred to
as "LAC"), as a result whereof plaintiff's
suit stands dismissed.

4. The facts giving rise to this appeal
in brief are that sole plaintiff Mohd. Islam
son of Tulai, resident of Bahadurganj,
Pargana Jahoorabad, District Ghazipur,
instituted Original Suit No.130 of 1979
vide plaint dated 03.05.1979 impleading
two defendants Shamshul Ansari son of
Khalil and Shamshul Haq Kunjada son of
Chetan
in
the
Court
of
Munsif
Muhammdabad,
District
Ghazipur
seeking permanent injunction restraining
defendant-1 from interfering in possession
and other rights of plaintiff in respect of
disputed house shown by letters A, B, C,
D, E, F, G, H in the map given at the
bottom of plaint. He further sought
1 All. Mohd. Islam Vs. Sri Shamshul Ansari & Anr.
1389
eviction of defendant-1 from disputed
property shown as F, F, G, G, in the map at
the bottom of plaint and to hand over
possession thereof to plaintiff.

5. The plaint case set up is that
disputed house is situated in Kasba
Bahadurganj. Part of house shown as A,
B, C, D, F, G, H, was owned by Shamshul
Haq son of Chetan, defendant-2 and
plaintiff was a tenant therein for last 7-8
years. Defendant-2 vide sale deed dated
03.01.1978,
for
consideration
of
Rs.2,000/-, sold the aforesaid house, part
whereof has been shown by letters A, B,
C, D, E, F. to the plaintiff, who was
already in possession of said property as
tenant, and became owner after sale deed
dated
03.01.1978
was
executed
by
defendant-2. In Municipal record, earlier
name of Sattar was shown in respect of
house in dispute, who died long back and
his legal heir defendant-2, after his death,
became his successor in respect of
disputed property. Sattar had no issue but
his father Sallar were four brothers
namely Sallar, Somaroo, Dukhi and
Kadir. Dukhi and Kadir died long back
without any issue and Somaroo's son
Chetan became successor and Shamshul
Haq and Anul Haq are sons of Chetan.
After death of Sattar, therefore his entire
property was succeeded by defendant-2
and his brother Anul Haq and their names
were entered in Municipal record.

6. Defendant-1 got a document
forged on 03.4.1978 and on the basis
thereof claimed his right over property in
dispute and sought to get his name
entered in Municipal record illegally
hence the suit.

7. Defendant-1, Shamshul Ansari,
contested the suit, filing written statement
dated 09.5.1979 in which he admitted that
property in dispute was initially recorded
in the name of Sattar. Rest averments of
plaint were denied. In additional pleas, he
said that Sattar had no brother and
Samaroo, Dukhi and Kadir had no
relation with him. Defendant-2 was
neither legal representative or heir of
Sattar nor has any right over property in
dispute. Sattar had two daughters namely
Nisar Begum and Haliya alias Hallam
Bibi, who succeeded Sattar's property
after his death. Defendant-1 got a deed
executed by aforesaid daughters of Sattar
on 03.04.1978 and therefore, has a right
over property in dispute. Defendant-1
moved an application for mutation, on
which Administrator, Town Area passed
order on 06.05.1978 to mutate his name
whereagainst plaintiff filed appeal, which
was rejected vide order dated 26.9.1978.
Thereagainst, a writ petition has been
filed by plaintiff in High Court i.e. Writ
Petition No.1609 of 1979 but the same
was also dismissed. The suit has been
filed on false premise and plaintiff had no
right over property in dispute.

8. Trial Court formulated following
eight issues :

^^1- D;k oknh fookfnr edku o cg:Q
ABCDEFGH uD'kk okni= dk Lokeh ,oa vf/kiR;Hkksxh
gS\

1. Whether the plaintiff is the
owner
having
occupation
over
the
disputed
house
shown
by
letters
ABCDEFGH in the site map appended to
the plaint?

2- D;k oknh cg:Q FF'GG' uD'kk
okni= ij n[ky ikus dk vf/kdkjh gS\

2. Whether the plaintiff is
entitled to secure occupation over the
1390 INDIAN LAW REPORTS ALLAHABAD SERIES
property shown by letters FF'GG' in the
site map appended to the plaint?

3- D;k okn la/kkj.k ;ksX; ugha gS\

3. Whether the suit is not
maintainable?

4- D;k okn dk ewY;kadu nks"iw.kZ gS rFkk
iznRr U;k; 'kqYd vi;kZIr gS\

4. Whether the suit is wrongly
valued and the court fee paid is
insufficient?

5- D;k okn esa ekSu lEefr ,oa foo.ku
dk nks"k ckf/kr gS\

5. Whether the suit suffers from
the Principles of Acquiescence and
Estoppel?

6- D;k okn esa rkeknh dk nks"k ckf/kr
gS\

6. Whether the suit is barred by
limitation?

7- D;k okn esa /kkjk 34 fo0 vuqrks"k
vf/kfu;e ck/kd gS\

7. Whether the suit is barred by
Section 34 of the Specific Relief Act?

8- vuqrks"k\^^

8. Relief?"

(English Translation by Court)

9. Besides documentary evidence,
oral evidence placed before Trial Court
comprised of deposition of Islam PW-1
and Mukhtaar Ahmad as PW-2 while
Shamshul
Haq
defendant-2
himself
examined as DW-1 and Alimuddin as
DW-2.

10. Considering Issue 1, Trial Court
held that plaintiff is owner of disputed
property
and
answered
issue
in
affirmative. Issues 3, 5, 6 and 7 were not
pressed by defendants hence answered in
negative. Issue 4 was considered as
preliminary issue and already answered in
negative vide order dated 20.01.1982,
which was made part of judgment. Issue 2
thereafter was answered in affirmative
holding
defendants'
possession
over
disputed
property
unauthorized
and
illegal. Consequently suit was decreed
vide judgment dated 25.02.1982 and
decree dated 05.03.1982 passed by Sri
Prakash Chandra Mishra.

11. Defendant-1 preferred Civil
Appeal No.172 of 1982. LAC formulated
two points for consideration as under :

^
^1- D;k 'kelqygd LoxhZ; lRrkj dk
cSf/kd mRrjkf/kdkjh Fks\

1. Whether Shamsul Haq was
legal successor of Late Sattar?

2- D;k lRrkj dh yM+fd;kWa fulk csxe
o gyhQ mQZ gYyu chch gS\**

2. Whether Nisa Begum and
Haleef @ Hallan Bibi are daughters of
Sattar?" (English Translation by Court)

12. Answering first point for
determination, LAC held that Sattar was
the only son and had no brother, therefore
Shamshul Haq and Ainul Haq did not
belong to family of Sattar. Hence plaintiff
cannot derive any valid right or title from
them. It, therefore, held that Shamshul
Haq and Ainul Haq had no right to
transfer the property and plaintiff did not
gain any valid ownership right over
disputed property. Second point for
1 All. Mohd. Islam Vs. Sri Shamshul Ansari & Anr.
1391
determination was also answered in
favour of defendant-1 holding that Nisar
Begm and Haleem alias Hallan Bibi were
daughters of Sattar and after death of
Sattar, became co-owners of property in
dispute
hence
could
have
validly
transferred their ownership over property
in dispute vide sale deed dated 03.4.1978.
Consequently, appeal was allowed and
judgment and decree of Trial Court was
set aside by LAC vide judgment dated
23.10.1986.

13. This appeal was admitted on
following two substantial questions of
law:

(I) Whether Smt. Nesar and
Smt. Haleem Bibi, who were born in 1949
and 1951, be the daughters of Sattar who
died in 1947?

(II) Whether LAC reversed
findings of Trial Court without meeting
reasoning adopted by Trial Court and also
the evidence relied by it?

14. So far as question (I) is
concerned, it is said that one daughter was
born to Sattar who died within one month.
Another daughter was born on 02.7.1932,
as per birth register of Town Area,
Bahadurgan, Paper No.38C, but there is
nothing on record to show that she also
died. LAC has drawn inference that
daughter born to Sattar on 02.07.1932
remained alive. Another daughter was
born in 1934, who died.

15. On the basis of Family Register,
wherein date of birth of two daughters
were
shown
as
01.01.1949
and
31.01.1951, it was argued that these are
Nisar Begum and Haleema Begum and
not those daughters who were born to
Sattar. However, I find that two daughters
were born to Sattar and in absence of any
evidence that both died, it cannot be said
that Nisar and Haleema Begum are not his
daughters. LAC, in my view, has not
erred by simply negativing the date of
birth shown in Family Register, in the
light of above evidence.

16. Moreover, plaintiff's basic
contention that Sattar died issuless stood
proved false. In order to be successful in a
suit, plaintiff has to stand on his own and
if his basic claim falls, suit has to be
dismissed. Question (I) is thus answered
against appellant.

17. Sri S.K.Verma, Senior Advocate,
then contended that plaintiff was in
possession of disputed property for last
more than twenty years and therefore,
matured his right by way of 'adverse
possession'. He also urged that though this
issue has not been considered by Courts
below and also not framed as a substantial
question of law by this Court but still
since it is evident from pleadings, it can
be considered by this Court at this stage
also. In support of above submission, he
placed
reliance
on
Supreme
Court
judgment in Panchugopal Barua and
others vs. Umesh Chandra Goswami
and others (1997) 4 SCC 713 and
Nangali Amma Bhavani Amma vs.
Gopalkrishnan Nair and others (2004)
8 SCC 785.

18. In Panchugopal Barua and
others (supra) Court has held that appellant
cannot be allowed to set up a new case in
second appeal or raise a new issue, not
supported by any pleadings or material on
record. Further, unless the appeal involves a
substantial question of law, a second appeal
cannot lie. It clearly said as under :
1392 INDIAN LAW REPORTS ALLAHABAD SERIES

"The High Court was, therefore,
not justified in entertaining the second
appeal on an altogether new point,
neither pleaded nor canvassed in the
subordinate courts and that too by
overlooking the changes brought about in
Section 100 C.P.C. by the Amendment Act
of 1976 without even indicating that a
substantial question of law was required
to be resolved in the second appeal."

19. In Nangali Amma Bhavani
Amma (supra) I find nothing to help the
appellant, inasmuch as, there, an issue
was raised that second appeal was decided
by High Court without framing any
substantial question of law but in para 6
of judgment, Court negatived it by
observing that High Court had indicated
the question of law which arise out of the
decision of the first appellate court and
which
required
determination
under
Section 100 of C.P.C. Court also held that
this is in substantial compliance with the
requirement of Section 100 C.P.C., and
therefore, it find no reason to set aside
judgment of High Court.

20. It has been repeatedly held that
at the time of hearing , Court will not
frame a question, which has not arisen
from pleadings before Court below and
has not been raised before Court below.

21. Further, even on merits, I find that
plaintiff has no case on the issue of "adverse
possession" and reliance placed by plaintiffappellant on Division Bench judgment of this
Court in Municipal Board, Etawah vs. Mt.
Ram Sri and another AIR 1931 Allahabad
670 and Vasudeva Padhi Khadanga Garu
vs. Maguni Devan Bakshi Mahapatrulu
Garu 28 Indian Appeals 81 is clearly
misconceived. Above decision infact have no
application to the facts of this case.

22. Here suit instituted by plaintiffappellant is founded on his plea of
'ownership' in pursuance of sale deed
dated 03.01.1978 executed by defendant2. At no point of time there is any
pleading that plaintiff had 'adverse
possession' over property in dispute,
openly against its owner and has matured
its right by adverse possession. The
requirement of law in order to attract
doctrine of adverse possession are very
clear. In the matter of plea of adverse
possession,
mutually
inconsistent
or
mutually destructive pleas cannnot be
taken in the plaint. Whenever plea of
adverse possession is raised, it pre
supposes that onwer is someone else and
the person taking the plea of adverse
possession is not the actual owner but has
perfected his title by prescription since
real
owner
failed
to
initiate
any
proceeding for restoring the possession
within the prescribed period under the
statute.

23.

In
P.
Periasami
Vs.
P.Periathambi &Ors., 1995 (6) SCC
523 it was said:

"Whenever the plea of adverse
possession is projected, inherent in the
plea is that someone else was the owner
of the property."

24. In Mohan Lal v. Mirza Abdul
Gaffar (1996) 1SCC 639, the Court said"

"As regards the first plea, it is
inconsistent with the second plea. Having
come
into
possession
under
the
agreement, 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
1 All. Mohd. Islam Vs. Sri Shamshul Ansari & Anr.
1393
interest and that the latter had acquiesced
to his illegal possession during the entire
period of 12 years, i.e., up to completing
the period his title by prescription nec vi,
nec clam, nec precario."

25. In Karnataka Board of Wakf
Vs. Government of India & others
(2004) 10 SCC 779, Court held that
whenever the plea of adverse possession
is projected, inherent therein is that
someone else is the owner of the property.
In para 12 it said:

"The pleas on title and adverse
possession are mutually inconsistent and
the latter does not begin to operate until
the former is renounced."

26 . The decision in Mohan Lal
(supra) has also been followed in
Karnataka Board of Wakf (supra) and in
para 13, the Court said:

"As we have already found, the
respondent obtained title under the
provisions of the Ancient Monuments Act.
The
element
of
the
respondent's
possession of the suit property to the
exclusion of the appellant with the
animus to possess it is not specifically
pleaded and proved. So are the aspects of
earlier title of the appellant or the point of
time of disposition. Consequently, the
alternative plea of adverse possession by
the respondent is unsustainable."
 (emphasis added)

27. In M. Venkatesh and others vs.
Commissioner, Bangalore Development
Authority and others (2015) 17 SCC 1,
Court has referred to various earlier
decisions including Mohan Lal (supra)
and Karnataka Board of Wakf (supra)
and observed that a person having come
into possession having some title or
agreement cannot claim hostile or adverse
possession. Referring to Annasaheb
Bapusaheb Patil vs. Balwant (1995) 2
SCC 543 Court has said that 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. The same has been followed in
Bangalore Development Authority vs.
N.Jayamma (2017)13 SCC 159.

28. In Chatti Konati Rao and Ors. vs.
Palle Venkata Subba Rao (2010) 14 SCC
316, Court said that mere possession however
long does not necessarily mean that it is
adverse to the true owner. It means hostile
possession which is expressly or impliedly in
denial of the title of the true owner and in
order to constitute adverse possession the
possession must be adequate in continuity, in
publicity and in extent so as to show that it is
adverse to the true owner.

29. The above authorities have been
followed recently in Mallikarjunaiah vs.
Nanjaiah and others 2019(7) SCALE 1.

30. ation that plaintiff has no claim
over property in dispute on the basis of
alleged "adverse possession" and this plea
has no substance.

31. Counsel for appellant in respect
of question (II) contended that findings of
Trial Court have not been reversed and
still LAC has passed judgment in appeal
reversing judgment of Trial Court. This
argument has no substance for the reason
that basic findings of Trial Court that
Sattar was issueless and his property was
succeeded by his brothers has been
1394 INDIAN LAW REPORTS ALLAHABAD SERIES
reversed by LAC observing that Sattar
had no brother but had two daughters and
his property was succeeded by two
daughters hence evidently findings of
Trial Court have been reversed. Thus
LAC was justified in passing a judgment
of reversal.

32.

Substantial
question
(II)
therefore, is answered against appellant.

33. Appeal lacks merit. Dismissed.
--------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.08.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

WRIT C NO.11150 of 2000

Ram Kumar Misra ...Petitioner
Versus
The Competent Authority Act,Authority &
Ors. ...Respondents

Counsel for the Petitioner:
Sri Chandan Sharma, Sri P.H. Vashistha, Sri S.
Narain, Sri Vijay Bahdur Singh, Sri Vinod
Shankar Tripathi, Sri B.D. Sharma Sri U.N.
Sharma, Sri Chandan Misra.

Counsel for the Respondents:
C.S.C., Ms. Subhash Rathi, Sri Vineet Pandey,
Sri Tejaswi Mishra.

A. Writ - Article 226 of Constitution-
Sections 10 (5) & 10 (6) of Urban Land
(Ceiling
&
Regulation)
Act,
1976-
Possesion of excess vacant land was not
taken-Petitioner
entitled
to
retain
possession of land-Case law discussed-
Writ Petition succeeds. (E-1)

(Delivered by Hon'ble Rajeev Misra J.)

1. Ram Kumar Misra, the writ petitioner
has filed present writ petition under Article
226 of the Constitution of India, challenging
order dated 30.12.1981 (Annexure 1 to the
writ petition), passed by respondent No.1
Competent Authority (Urban Land Ceiling ),
Bareilly, whereby an area of 8258.21 Sqmeters of land of petitioner has been declared
as excess-vacant land and notice dated
24/25.1.2000 (Annexure-4 to the writ petition)
also issued by respondent No.1 purported to
be under Section 11 (8) of the Urban Land
(Ceiling & Regulation) Act, 1976 (herienafter
referred to as 'Act 1976') asking the petitioner
to file his objections, if any, alongwith
evidence before respondent-1 on or before
3.2.2000 to the proposed compensation in lieu
of land belonging to petitioner being declared
as excess-vacant land. Apart from aforesaid
reliefs, petitioner has also prayed for a writ of
mandamus commanding respondents not to
dispossess petitioner from land in dispute.

2. We have heard Sri Vijay Bahadur
Singh, learned Senior Advocate assisted by
Sri P.H. Vashishtha, learned counsel for
petitioner, Mrs. Subhash Rathi, learned
Additional Chief Standing Counsel for Staterespondents
and
Sri
Tejaswi
Mishra,
Advocate holding brief of Sri Vineet Pandey,
learned counsel appearing for respondent no.
3
Bareilly
Development
Authority
(hereinafter referred to as 'B.D.A').

3. It transpires from record that
petitioner is a recorded Tenure Holder of
survey plot Nos. 587 area 0.0468
hectares, 588 area 0.333 hectares and 589
area 0.721 hectare, situate in village,
Haroo Nagla, District Bareilly.

4. Act of 1976, came into force on
17.2.1976. By means of Act 1976, a
ceiling limit regarding land which can be
held by a Tenure Holder was provided.