# Vidya Shanker v. Suresh Chand

- **Citation:** (2020) 8 ILRA 340
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-04-22
- **Case number:** Second Appeal No. 764 of 1981
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vidya-shanker-v-suresh-chand-46045
- **Pages:** 17

## Headnote

Sri
Kamleshwar
Singh,
Sri
S.C.
Kushwaha, Sri Sartita Gupta, Sri V.P.
Ojha

(A) Civil Law - Code of Civil Procedure
,1908 - Section 100 CPC - adverse
possession - party who claims adverse
possession - has to plead and prove that his
possession is nec vi nec clam nec precario i.e.
peaceful, open, and continious - plea of
adverse possession is not available when
contradictory pleas are taken -'Permissible
possession' shall not mature a title since it
cannot be treated to be an 'adverse
possession' - Pleadings are necessary if case
is founded on adverse possession .
 (Para -12,13,21,30)

Appellant in the present case clearly pleaded
its own title - pleaded that none else was
owner - plea of adverse possession was
impermissible in this case - Trial Court failed
to examine the legal aspect and exposition of
law - hence Lower Appellate Court has rightly
reversed the judgment.

(Para - 48)

HELD:- In absence of anything to show
before this Court that appellant in any
manner adduced any evidence to prove his
title, while plaintiff's title was clearly shown, I
have no option but to answer the above
substantial question of law against him.
(Para- 49)

Second Appeal dismissed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,998 of 54,409. This is a partial read: ask again with offset=39998 for what follows._

340 INDIAN LAW REPORTS ALLAHABAD SERIES
framed on 13.03.2019 are based on the
defendant's plea about rectification of the
contract, subject matter of action. This
plea was made open to be canvassed as a
point for determination by the judgment
and order of remand passed by this Court
in Second Appeal no.1732 of 1977,
decided on 26.03.1993. The point was
not at all addressed at the hearing of the
appeal before the Lower Appellate Court
by the defendant, who was the appellant
there. It is, therefore, not open to the
defendant to ask this Court to decide
these two substantial questions of law,
based on a point that he did not at all
canvass at the hearing of the appeal
before the Lower Appellate Court.
Indeed, it is a case of an opportunity lost.
This Court, therefore, refrains from
answering the two substantial questions
of law under reference.

49. The result would be that there is
no good ground to interfere with the
judgment and decree impugned.

50. The appeal fails and is hereby
dismissed. The plaintiff would be
entitled to his costs in this Court and the
two Courts below.

51. Let a decree be drawn up,
accordingly.
----------
(2020)08ILR A340
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.04.2020

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.

Second Appeal No. 764 of 1981

Vidya Shanker ...Appellant
Versus
Suresh Chand ...Respondent

Counsel for the Appellant:
Sri D.P. Yadav, Sri Neeraj Kushwaha, Sri
O.P. Yadav, Sri R.N. Bhakt

Counsel for the Respondent:
Sri
Kamleshwar
Singh,
Sri
S.C.
Kushwaha, Sri Sartita Gupta, Sri V.P.
Ojha

(A) Civil Law - Code of Civil Procedure
,1908 - Section 100 CPC - adverse
possession - party who claims adverse
possession - has to plead and prove that his
possession is nec vi nec clam nec precario i.e.
peaceful, open, and continious - plea of
adverse possession is not available when
contradictory pleas are taken -'Permissible
possession' shall not mature a title since it
cannot be treated to be an 'adverse
possession' - Pleadings are necessary if case
is founded on adverse possession .
 (Para -12,13,21,30)

Appellant in the present case clearly pleaded
its own title - pleaded that none else was
owner - plea of adverse possession was
impermissible in this case - Trial Court failed
to examine the legal aspect and exposition of
law - hence Lower Appellate Court has rightly
reversed the judgment.

(Para - 48)

HELD:- In absence of anything to show
before this Court that appellant in any
manner adduced any evidence to prove his
title, while plaintiff's title was clearly shown, I
have no option but to answer the above
substantial question of law against him.
(Para- 49)

Second Appeal dismissed. (E-7)

List of Cases cited:-

1. P.T. Munichikkanna Reddy & ors. Vs
Revamma & ors., AIR 2007 SC 1753

2. Des Raj & ors. Vs Bhagat Ram(Dead) by
LRs.
&
ors.,
2007(3)
SCALE
371
8 All. Vidya Shanker Vs. Suresh Chand
341
3. Govindammal Vs R. Perumal Chettiar &
ors., JT 2006(1) SC 121.

4. Annakili Vs A. Vedanayagam & ors., AIR
2008 SC 346

5.
Hemaji
Waghaji
Jat
Vs
Bhikhabhai
Khengarbhai Harijan & ors., AIR 2009 SC 103

6. D. N. Venkatarayappa & anr. Vs St. of
Karn. & ors., (1997) 7 SCC 567

7. Ram Charan Das Vs Naurangi Lal & ors.
,AIR 1933 Privy Council 75

8. Smt. Bitola Kuer Vs Sri Ram Charan & Ors.,
AIR 1978 All 555 in para 16

9. Md. Mohammad Ali Vs Jagadish Kalita &
ors. ,(2004) 1 SCC 271

10. L.N. Aswathama & anr. Vs V.P. Prakash,
JT 2009 (9) 527

11. R.N. Dawar Vs Ganga Saran Dhama, AIR
1993 Del. 19).

12. In Parwatabai Vs Sona Bai ,(1996) 10 SCC
266

13. Parsinnin Vs Sukhi,(1993) 4 SCC 375

14. Biswanath Agarwalla Vs Sabitri Bera &
ors., JT 2009 (10) SC 538.

15. Gautam Sarup Vs Leela Jetly & others,
(2008) 7 SCC 85

16. Ejas Ali Qidwai & ors. Vs Special Manager,
Court of Wards, Balrampur Estate & ors., AIR
1935 Privy Council 53

17. S.M. Karim Vs Mst. Bibi Sakina, AIR 1964
SC 1254

18. B. Leelavathi Vs Honnamma & anr.,
(2005) 11 SCC 115

19. A.S. Vidyasagar Vs S. Karunanandam,
1995 Supp (4) SCC 570

20. Goswami Shri Mahalaxmi Vahuji Vs Shah
Ranchhoddas Kalidas, AIR 1970 SC 2025,
21. P. Periasami Vs P.Periathambi & ors.,
(1995) 6 SCC 523

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Neeraj Kushwaha,
learned counsel for appellant. None has
appeared on behalf of respondent, though
called twice. Since it is an old appeal of
1981 and is pending for the last 38 years
and find no reason but to proceed ex
parte
to
decide
it
and
proceed
accordingly.

2. This is a defendant's appeal
under Section 100 of Code of Civil
Procedure, 1908 (hereinafter referred to
as "CPC"), arising from judgment and
decree dated 18.03.1981 passed by Sri Jai
Prakash Narayan, Civil Judge, Etawah
allowing Civil Appeal No. 118 of 1977.
Lower
Appellate
Court
(hereinafter
referred to as "LAC") has set aside
judgment and decree dated 11.04.1977
passed by Sri Ravi Narayan, IInd
Additional Munsif/Judicial Magistrate,
Etawah in Original Suit No.399 of 1973
(hereinafter referred to as "O.S.") .
Plaintiff's suit was dismissed by Trial
Court but appeal has been allowed.
Hence this appeal by defendant.

3. Suit for delivery of possession of
the house in dispute and damages for use
of it and pendente lite was instituted by
plaintiff-Suresh Chandra against sole
defendant-Vidya Shankar alias Daroga.
Plaint case, set up by plaintiff, is that
house in dispute belong to one Shamsher
Khan, who executed a sale deed dated
29.06.1968 registered on 03.08.1968 in
favour of plaintiff and thereafter he got
possession thereof. The said house was
purchased by Shamsher Khan from its
erstwhile owner Ram Gopal through a
342 INDIAN LAW REPORTS ALLAHABAD SERIES
sale deed and at that time defendant was
a tenant in the northern part of house, on
monthly rent of Rs.5/- which was a
month to month tenancy. Defendant was
paying rent initially to Ram Gopal and
thereafter to Shamsher Khan. After
execution of sale deed and purchasing the
house, plaintiff informed the above
transaction to defendant and asked him to
pay rent. In October 1968 when plaintiff
went
to
the
house
for
renovation/construction of rest part of the
house which was not in tenancy,
defendant raised dispute and also did not
pay any rent. Consequently, by notice
dated 14.12.1968 which was served upon
him on 17.12.1968 his tenancy was
terminated. Defendant replied the notice
wherein even title of plaintiff was denied.
Plaintiff filed suit in Small Cause Court
but defendant raised dispute of title,
hence plaint was returned and suit then
was filed in a regular Court. Plaintiff
claimed arrears of rent of Rs. 244/- for
the
period
from
01.07.1968
to
25.07.1973 and pendente lite damages
and delivery of possession of house in
question.

4. Defendant disputed the claim. He
said that he was never a tenant of the
house even at the time of Ram Gopal. He
was himself owner in possession, hence
Ram Gopal had no authority to sell out
suit property to anybody. Defendant in
the additional pleas stated that the house
in question initially belonged to his
ancestor Lala Ram Sahai, who had
purchased it vide sale deed dated
24.06.1862 from Beni Ram. After death
of Lala Ram Sahai his sons Jwala Prasad,
Gauri Shankar and Kali Sunder became
onwers and in their mutual partition,
house in question came to the share of
Gauri Shankar. After death of Gauri
Shankar, house in dispute is scucceeded
by his sons Shiv Shankar Lal, Rama
Shankar and vidya Shankar (i.e. plaintiff)
and Laxmi Shankar. The middle part of
house was in ruinous condition and
repaired and reconstructed by defendant
incurring his own expenses. No person in
the name of Ram Gopal and Shamsher
Khan were ever owners and resided in
the house. In the alternative, it was also
pleaded that in any case, the house in
question, for the last more than 100
years, is in possession of defendants and
his ancestors, openly and hostile, to the
knowledge of erstwhile owner. Ram
Gopal, if any, and others, therefore, their
title has extinguished and defendant has
become owner by way of adverse
posssession.

5. The Trial Court formulated
following issues:

1. Whether the plaintiff is the
owner of the house in suit?

2. Whether the plaintiff is
entitled for the damages as claimed? If so
its effect?

3. Whether the suit is barred by
time?

4. Whether the suit is barred by
principles
of
waiver
estoppel
and
acquiescence?

5. Whether the suit is barred by
adverse possession?

6. Whether the suit is bad for
non-joinder of parties?

7. Whether the suit is under
valued and Court fee paid is insufficient?

8. To what reliefs, if any, to the
plaintiff entitled?

6. Issues- 1 and 2 were answered
against plaintiff and sale deed was
declared fictitious. Issues-3 and 5 were
8 All. Vidya Shanker Vs. Suresh Chand
343
answered in favour of defendant and
Trial Court held that suit was barred by
limitation and defendant has perfected
title by way of adverse possession.
Issues-4 was also answered against
plaintiff.
Issue-6
was
answered
in
negative. Issues-6 and 7 were decided as
preliminary issues in negative. Issue-8
was answered by dismissing the suit.

7. In the appeal, LAC formulated
only single point for determination, i.e.
"Whether house in question belong to
Ram Gopal and at any point of time
thereafter plaintiff became owner by
virtue of sale deed or it was owned by
defendant-Vidya Shankar?"

8. Aforesaid point for determination
is answered in favour of plaintiff and
appeal has been allowed by LAC and has
set aside the judgment passed by Trial
Court and decreed suit granting relief as
prayed for.

9. This appeal was admitted on a
single substantial question of law i.e.
ground no.3 which reads as under:

"Because the appellant had
produced and proved the sale-deed dated
24.06.1862 executed in favour of Sri
Ram Sahai the grand father of the
appellant in respect of the disputed house
and it was never pleaded or proved by the
respondent that Sri Ram Sahai or his
decendants ever transferred their interest
or possession since 1862. "

10. It is not in dispute that plaintiffrespondent placed on record sale deed
dated 29.06.1968 i.e. Exhibit-9 wherein it
was referred that Ram Gopal has taken a
debt on 12.08.1958 of Rs. 350/- from Dr.
Prithvi Nath Gupta and executed a
mortgage deed, which he could not
satisfy and aforesaid mortgage deed was
transferred by Dr. Prithvi Nath Gupta to
Sri Vansh Gopal for Rs. 500/- and since
there was never any redemption of
mortgage, Vansh Gopal executed a sale
deed in favour of Ram Gopal. LAC has
also examined record of Municipal
Assessment Notice from 1951 to 1955
which showed that house in dispute was
in the name of Kalloo father of Ram
Gopal, and hence they were owners of
house in question in 1955.

11. I repeatedly enquired from
learned counsel for appellant as to in
what manner he proved his title deed
dated 24.06.1862 but despite repeated
query,
he
could
give
no
reply
whatsoever.

12. Moreover, when questioned,
learned counsel for appellant could not
dispute that defendant-appellant had
taken contradictory stand, inasmuch as,
on the one hand he had claimed to be the
owner of property in dispute and on the
other hand he claimed that his title has
been perfected by adverse possession.
Trial Court had accepted aforesaid plea
ignoring the settled principle of law that
plea of adverse possession is not
available when contradictory pleas are
taken. One cannot claim to be the owner
and simultaneously that his title was
protected by way of adverse possession.

13. A person other than owner, if
continued
to
have
possession
of
immoveable property for a period as
prescribed
in
a
Statute
providing
limitation,
openly,
without
any
interruption and interference from the
owner, though he has knowledge of such
possession,
would
crystallise
in
344 INDIAN LAW REPORTS ALLAHABAD SERIES
ownership after the expiry of the
prescribed period or limitation, if the real
owner has not taken any action for reentry and he shall be denuded of his title
to the property in law. 'Permissible
possession' shall not mature a title since
it cannot be treated to be an 'adverse
possession'.
Such
possession,
for
however length of time be continued,
shall not either be converted into adverse
possession or a title. It is only the hostile
possession which is one of the condition
for adverse possession.

14. The law in respect of adverse
possession is now well settled. It should
be nec vi nec clam nec precario.
(Secretary of State for India Vs.
Debendra Lal Khan, AIR 1934 PC 23,
page 25). This decision has been referred
and followed in P. Lakshmi Reddy Vs.
L.Lakshmi Reddy AIR 1957 SC 314
(para 4). Court further says that the
possession required must be adequate in
continuity, in publicity and in extent to
show that it is possession adverse to the
competitor.
[Radhamoni
Debi
Vs.
Collector of Khulna, 27 Ind App. 136
at p. 140 (PC)].

15. In Thakur Kishan Singh Vs.
Arvind Kumar, AIR 1995 SC 73 the
Court said:

"A possession of a co-owner or
of a licensee or of an agent or a
permissive possession to become adverse
must be established by cogent and
convincing evidence to show hostile
animus and possession adverse to the
knowledge
of
real
owner.
Mere
possession for howsoever length of time
does not result in converting the
permissive
possession
into
adverse
possession."

16. In Saroop Singh Vs. Banto
and others, 2005(8) SCC 330 the Court
held in para 30:

"30. Animus possidendi is one
of the ingredients of adverse possession.
Unless the person possessing the land
has a requisite animus the period for
prescription does not commence. . . . ."

17. In T. Anjanappa and others
Vs. Somalingappa and another 2006
(7) SCC 570 the pre-conditions for
taking plea of adverse possession has
been summarised as under:

"It is well-recognised proposition
in law that mere possession however long
does not necessarily mean that it is adverse
to the true owner. Adverse possession really
means the hostile possession which is
expressly or impliedly in denial of title of the
true owner and in order to constitute
adverse possession the possession proved
must be adequate in continuity, in publicity
and in extent to as to show that it is adverse
to
the
true
owner.
The
classical
requirements of acquisition of title by
adverese
possession
are
that
such
possession in denial of the true owner's title
must be peaceful, open and continuous. The
possession must be open and hostile enough
to be capable of being known by the parties
interested in the property, though it is not
necessary that there should be evidence of
the adverse possessor actually informing the
real owner of the former's hostile action."

18. In P.T. Munichikkanna Reddy
& Ors. Vs. Revamma & Ors. AIR 2007
SC 1753 it was held:

"Adverse possession in one
sense is based on the theory or
presumption
that
the
owner
has
8 All. Vidya Shanker Vs. Suresh Chand
345
abandoned the property to the adverse
possessor on the acquiescence of the
owner to the hostile acts and claims of
the person in possession. It follows that
sound qualities of a typical adverse
possession
lie
in
it
being
open,
continuous and hostile." (Para 5)

"Efficacy of adverse possession
law in most jurisdictions depend on
strong limitation statutes by operation of
which right to access the court expires
through effluxion of time. As against
rights of the paper-owner, in the context
of adverse possession, there evolves a set
of competing rights in favour of the
adverse possessor who has, for a long
period of time, cared for the land,
developed it, as against the owner of the
property who has ignored the property.
Modern statutes of limitation operate, as
a rule, not only to cut off one's right to
bring an action for the recovery of
property that has been in the adverse
possession of another for a specified
time, but also to vest the possessor with
title. The intention of such statutes is not
to punish one who neglects to assert
rights, but to protect those who have
maintained the possession of property for
the time specified by the statute under
claim of right or colour of title."(Para 6)

"Therefore, to assess a claim of
adverse possession, two pronged enquiry
is required:

1. Application of limitation
provision
thereby
jurisprudentially
"willful neglect" element on part of the
owner established. Successful application
in this regard distances the title of the
land from the paper-owner.

2. Specific positive intention to
dispossess on the part of the adverse
possessor effectively shifts the title
already distanced from the paper owner,
to the adverse possessor. Right thereby
accrues in favour of adverse possessor as
intent to dispossess is an express
statement of urgency and intention in the
upkeep of the property" (Para 9)

19. In para 12 of the judgment,
referring to its earlier decision in T.
Anjanappa (supra), Court held that if
the defendants are not sure who is the
true owner, the question of their being in
hostile possession and the question of
denying title of the true owner do not
arise. It also referred on this aspect its
earlier decision in Des Raj and others
vs. Bhagat Ram(Dead) by LRs. And
others
2007(3)
SCALE
371
and
Govindammal v. R. Perumal Chettiar
and others JT 2006(1) SC 121.

20.

In
Annakili
Vs.
A.
Vedanayagam and others, AIR 2008
SC 346 the Court pointed out that a claim
of adverse possession has two elements
(i) the possession of the defendant
becomes adverse to the plaintiff; and (ii)
the defendant must continue to remain in
possession for a period of 12 years
thereafter. Animus possidendi is held to
be a requisite ingredient of adverse
possession well known in law. The Court
held:

"It is now a well settled
principle of law that mere possession of
the land would not ripen into possessor
title for the said purpose. Possessor must
have animus possidendi and hold the
land adverse to the title of the true
owner. For the said purpose, not only
animus possidendi must be shown to
exist, but the same must be shown to exist
at the commencement of the possession.
He must continue in said capacity for the
period prescribed under the Limitation
Act. Mere long possession, it is trite, for
346 INDIAN LAW REPORTS ALLAHABAD SERIES
a period of more than 12 years without
anything more do not ripen into a title."

21. Pleadings are ncessary if case is
founded on adverse possession. Court has
considered
in
detail
the
various
authorities on the question of adverse
possession in Hemaji Waghaji Jat Vs.
Bhikhabhai Khengarbhai Harijan &
Others AIR 2009 SC 103 and in para 18
observed that 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.

22. The Court also referred to its
earlier
decision
in
D.
N.
Venkatarayappa & Anr. Vs. State of
Karnataka & Ors. 1997 (7) SCC 567
observing :

"Therefore, in the absence of
crucial
pleadings,
which
constitute
adverse possession and evidence to show
that the petitioners have been in
continuous and uninterrupted possession
of the lands in question claiming right,
title and interest in the lands in question
hostile to the right, title and interest of
the original grantees, the petitioners
cannot claim that they have perfected
their title by adverse possession."

23. In D.N. Venkatarayappa
(Supra),
Court
emphasized
the
importance of pleading as also the pre
requisites of plea of adverse possession
and said :

"3. ...What requires to be pleaded
and proved is that the purchaser disclaimed
his title under which he came into
possession, set up adverse possession with
necessary animus of asserting open and
hostile title to the knowledge of the true
owner and the later allowed the former,
without any let or hindrance, to remain in
possession and enjoyment of the property
adverse to the interest of the true owner
until the expiry of the prescribed period. The
classical requirement of adverse possession
is that it should be nec vi, nec clam, nec
precario."

"...
ordinary
classical
requirement of adverse possession is that
it should be nec vi, nec clam, nec
precario and the possession required
must be adequate in continuity, in
publicity and in extent to show that it is
possession adverse to the competitor."

"apart from the actual and
continuous possession which are among
other ingredients of adverse possession,
there should be necessary animus on the
part of the person who intends to perfect
his title by adverse possession."

"A person who under the bona
fide belief thinks that the property
belongs to him and as such he has been
in possession, such possession cannot at
all be adverse possession because it lacks
necessary animus for perfecting title by
adverse possession."

"...
one
of
the
important
ingredients to claim adverse possession
is that the person who claims adverse
possession must have set up title hostile
to the title of the true owner."
8 All. Vidya Shanker Vs. Suresh Chand
347

"...there is not even a whisper
in the evidence of the first petitioner with
regard to the claim of adverse possession
set up by the petitioners. It is not stated
by the petitioners that they have been in
continuous and uninterrupted possession
of the lands in question."

"But, the crucial facts to
constitute adverse possession have not
been pleaded. Admittedly, the appellant
came into possession by a derivative title
from the original grantee. It is seen that
the original grantee has no right to
alienate the land. Therefore, having
come into possession under colour of title
from original grantee, if the appellant
intends to plead adverse possession as
against the State, he must disclaim his
title and plead his hostile claim to the
knowledge of the State and that the State
had not taken any action thereon within
the prescribed period. Thereby, the
appellant's possession would become
adverse. No such stand was taken nor
evidence has been adduced in this behalf.
The counsel in fairness, despite his
research, is unable to bring to our notice
any such plea having been taken by the
appellant."

"Therefore, in the absence of
crucial
pleadings,
which
constitute
adverse possession and evidence to show
that the petitioners have been
in
continuous and uninterrupted possession
of the lands in question claiming right,
title and interest in the lands in question
hostile to the right, title and interest of
the original grantees, the petitioners
cannot claim that they have perfected
their title by adverse possession"

"...person, who comes into
possession under colour of title from the
original grantee if he intends to claim
adverse possession as against the State,
must disclaim his title and plead his
hostile claim to the knowledge of the
State and the State had not taken any
action thereon within the prescribed
period."

"5. ... in claiming adverse
possession certain pleas have to be made
such as when there is a derivative title as
in the present case, if the appellants
intend to plead adverse possession as
against the State, they must disclaim
their title and plead this hostile claim to
the knowledge of the State and that the
State had not taken any action within the
prescribed period, it is only in those
circumstances the appellants' possession
would become adverse. There is no
material to that effect in the present case.
Therefore, we are of the view that there
is no substance in any of the contentions
advanced on behalf of the appellants."

24. The pleading must be specific
to the date when possession become
adverse. In Ram Charan Das Vs.
Naurangi Lal & Ors. AIR 1933 Privy
Council 75, property of a Mutt was
alienated by Mahant by executing a
Mukararri (permanent lease) in favour of
one Munshi Naurangi Lal. Sale deed of
the land in dispute was also executed to
another one and both the documents
contain a stipulation that they were
executed
to
meet
expenses
and
necessities of Mutt. After death of
Mahant, a suit was filed by successor in
office against the lessee and purchaser
etc. claiming possession of property in
dispute to Mutt. The defendants besides
others,
took
the
plea
of
adverse
possession also. The question was, did
possession of the concerned defendant
became adverse to Mutt or Mahant
representing the Mutt on the date of
relevant assurance or date of death of the
concerned Mahant. Trial Court held latter
348 INDIAN LAW REPORTS ALLAHABAD SERIES
date to be correct while High Court took
a contrary view and upheld the former
date. Privy Council held:

"In other words a mahant has
power (apart from any question of
necessity) to create an interest in
property appertaining to the Mutt which
will continue during his own life, or to
put it perhaps more accurately, which
will continue during his tenure of office
of mahant of the mutt, with the result that
adverse possession of the particular
property will only commence when the
mahant who had disposed of it ceases to
be mahant by death or otherwise. If this
be right as it must be taken to be, where
the disposition by the mahant purports to
be a grant of a permanent lease, their
Lordships are unable to see why the
position is not the same where the
disposition purports to be an absolute
grant of the property nor was any logical
reason suggested in argument why there
should be any difference between the two
cases. In each case the operation of the
purported grant is effective and endures
only for the period during which the
mahant had power to create an interest
in the property of the mutt." (emphasis
added)

25. The pleading is necessary since
burden also lies on the person who
claims adverse possession. In Smt.
Bitola Kuer Vs. Sri Ram Charan &
Ors. AIR 1978 All 555 in para 16 the
Court said:

"It is well settled that title
ordinarily carries with it the presumption
of possession and that when the question
arises is to who was in possession of
land, the presumption is that the true
owner was in such possession. In other
word" possession follows title. The
inevitable Corollary from this principle
is that the burden lies on the person who
claims to have acquired title by adverse
possession to prove his case."

26. In order to defeat title of a
plaintiff on the ground of adverse
possession it is obligatory on the part of
the respondent to specifically plead and
prove as to since when their possession
came adverse. If it was permissive or
obtained pursuant to some sort of
arrangement,
the
plea
of
adverse
possession
would
fail.
In
Md.
Mohammad Ali Vs. Jagadish Kalita &
Ors. (2004) 1 SCC 271 with reference to
a case dealing with such an issue
amongst co-sharers it was observed that
"Long and continuous possession by
itself, it is trite, would not constitute
adverse
possession.
Even
nonparticipation in the rent and profits of the
land to a co-sharer does not amount to
ouster so as to give title by prescription.

27. It was also observed in para 21
that for the purpose of proving adverse
possession/ouster, the defendant must
also prove animus possidendi.

28. In L.N. Aswathama & another
Vs. V.P. Prakash JT 2009 (9) 527 the
Court, in para 17 and 18 said:

"17. The legal position is no
doubt well settled. To establish a claim of
title by prescription, that is adverse
possession for 12 years or more, the
possession of the claimant must be
physical/actual,
exclusive,
open,
uninterrupted, notorious and hostile to
the true owner for a period exceeding
twelve years. It is also well settled that
long and continuous possession by itself
8 All. Vidya Shanker Vs. Suresh Chand
349
would not constitute adverse possession
if it was either permissive possession or
possession without animus possidendi.
The pleas based on title and adverse
possession are mutually inconsistent
and the latter does not begin to operate
until the former is renounced. Unless
the person possessing the property has
the requisite animus to possess the
property hostile to the title of the true
owner, the period for prescription will
not commence."

"18. ...When a person is in
possession asserting to be the owner,
even if he fails to establish his title, his
possession would still be adverse to the
true owner. Therefore, the two pleas put
forth by the defendant in this case are
not inconsistent pleas but alternative
pleas available on the same facts.
Therefore, the contention of the plaintiffs
that the plea of adverse possession is not
available to defendant is rejected."

29. Where a plea of adverse
possession is taken, the pleadings are of
utmost importance and anything, if found
missing in pleadings, it may be fatal to
such plea of adverse possession. Since
mere long possession cannot satisfy the
requirement of adverse possession, the
person claiming it, must prove as to how
and
when
the
adverse
possession
commenced and whether fact of adverse
possession was known to real owner.
(R.N. Dawar Vs. Ganga Saran Dhama
AIR 1993 Del. 19). In Parwatabai Vs.
Sona Bai 1996 (10) SCC 266, it was
stressed upon by the Apex Court that to
establish the claim of adverse possession,
one has to establish the exact date from
which adverse possession started. The
claim based on adverse possession has to
be proved affirmatively by cogent
evidence
and
presumptions
and
probabilities cannot be substituted for
evidence. The plea of adverse possession
is not always a legal plea. It is always
based on facts which must be asserted,
pleaded and proved. A person pleading
adverse possession has no equities in his
favour since he is trying to defeat the
right of the true owner and, therefore, he
has to specifically plead with sufficient
clarity when his possession became
adverse
and
the
nature
of
such
possession.
[See
Mahesh
Chand
Sharma (supra)].

30. In Parsinnin Vs. Sukhi (1993)
4 SCC 375, it said that burden of proof
lies on the party who claims adverse
possession. He has to plead and prove
that his possession is nec vi, nec clam,
nec precario i.e., peaceful, open and
continuous.

31. Besides, alternative plea may be
permissible, but mutually destructive
pleas are not permissible. The defendants
may raise inconsistent pleas so long as
they are not mutually destructive as held
in Biswanath Agarwalla Vs. Sabitri
Bera & others JT 2009 (10) SC 538.

32. In Gautam Sarup Vs. Leela
Jetly & others (2008) 7 SCC 85, the
Court said that a defendant is entitled to
take an alternative plea but such
alternative pleas, however, cannot be
mutually destructive of each other.

33. In Ejas Ali Qidwai & Ors. Vs.
Special Manager, Court of Wards,
Balrampur Estate & Ors. AIR 1935
Privy Council 53 certain interesting
questions
cropped
up
which
also
attracted certain consequences flowing
from annexation of province of Oudh in
1857 by the British Government. It
350 INDIAN LAW REPORTS ALLAHABAD SERIES
appears that one Asghar Ali and his
cousin Muzaffar Ali granted a mortgage
by conditional sale of the entire estate of
Ambhapur (commonly known as the
Taluka of Gandara) and certain villages
to the then Maharaja of Balrampur. The
mortgaged property situated in District
Bahraich, which was in the Province of
Oudh. The mortgagee brought an action
to enforce his right, got a decree in his
favour and ultimately possession of the
property in 1922. The sons of Asghar Ali
thereafter brought an action in civil court
for recovery of their share of the
mortgaged property on the ground that it
was the absolute property of their father
and on his death devolved on all the
persons who were his heirs under the
Mahomedan Law. They challenged Iqbal
Ali's right to mortgage the whole of
estate and impeached the mortgaged
transaction on various grounds. The
claim was resisted on the ground that
succession to the estate was governed by
the rule of primogeniture according to
which the whole of the estate descended
first to Asghar Ali and after his death to
his eldest son Iqbal Ali. The defence
having been upheld the claim was
negatived by the trial court as well as the
court of appeal. Before the Privy Council
the only question raised was whether the
succession to the property was regulated
by the rule of primogeniture or by
Mahomedan Law.

34. The Privy Council while
considering the above question observed
that the Province of Oudh was annexed
by the East India Company in 1856 but in
1857
during
the
first
war
of
independence by native Indians much of
its part was declared independent. Soon
after it was conquered by the British
Government and it got reoccupation of
the entire province of Oudh. Thereafter
in March 1858 the British Government
issued a proclamation confiscating, with
certain exceptions "the proprietary right
in the soil of the Province" and reserved
to itself the power to dispose of that right
in such manner as to it may seem fit. On
10th
October
1859
the
British
Government (the then Government of
India) declared that every talukdar with
whom a summary settlement has been
made since the re-occupation of the
Province
has
thereby
acquired
a
permanent, hereditary and transferable
proprietary right, namely in the taluka for
which he has engaged, including the
perpetual privilege of engaging with the
Government for the revenue of the
taluka. Pursuant to that declaration,
Wazir Ali with whom a summary
settlement of Taluka has already been
made was granted a Sanad which
conferred upon him full proprietary right,
title and possession of the estate or
Ambhapur. In the said grant, there
contained a stipulation that in the event
of dying intestate or anyone of his
successor dies intestate, the estate shall
descend to the nearest male heir
according to rule of primogeniture.
Subsequently, in order to avoid any
further doubt in the matter, Oudh Estates
Act I of 1869 was enacted wherein Wazir
Ali was shown as a Tallukdar whose
estate according to the custom of the
family on or before 13.2.1856 ordinarily
devolved upon a single heir. However,
having noticed this state of affairs, the
Privy Council further observed that this
rule was not followed after the death of
Wazir Ali and the Taluka was mutated in
favour of his cousin Nawazish Ali. He
was recorded as owner of Taluka.
Thereafter in 1892 Samsam Ali entered
the joint possession with Nawazish Ali
8 All. Vidya Shanker Vs. Suresh Chand
351
and after death of Nawazish Ali, Samsam
Ali was recorded as the sole owner. The
system of devolution of the property was
explained being in accordance with the
usage of the family and when the name
of Asghar Ali was recorded, he also
made a similar declaration. Faced with
the situation the appellant sought to
explain the possession of Nawazish Ali
as adverse possession but the same was
discarded
by
the
Privy
Council
observing:

"The principle of law is firmly
established that a person, who bases his
title on adverse possession, must show by
clear and unequivocal evidence that his
possession was hostile to the real owner
and amounted to a denial of his title to
the property claimed."

35. In S.M. Karim Vs. Mst. Bibi
Sakina AIR 1964 SC 1254, Court has
held that the alternative claim must be
clearly
made
and
proved,
adverse
possession
must
be
adequate
in
continuity, in publicity and extent and a
plea is required at the least to show when
possession becomes adverse so that the
starting point on limitation against the
party affected can be found. A mere
suggestion in the relief clause that there
was an uninterrupted possession for
"several 12 years" or that the plaintiff had
acquired "a possible title" was not
enough to raise such a plea. Long
possession is not necessarily adverse
possession and prayer clause is not a
substitute for a plea. Relevant paras 3 to
5 of the said judgment read as follows:

"3. In this appeal, it has been
stressed by the appellant that the findings
clearly establish the benami nature of the
transaction of 1914. This is, perhaps,
true but the appellant cannot avail
himself of it. The appellant's claim based
upon
the
benami
nature
of
the
transaction cannot stand because S. 66 of
the Code of Civil Procedure bars it. That
section provides that no suit shall be
maintained against any person claiming
title under a purchase certified by the
Court on the ground that the purchase
was made on behalf of the plaintiff or on
behalf of someone through whom the
plaintiff claims. Formerly, the opening
words were, no suit shall be maintained
against a certified purchaser and the
change was made to protect not only the
certified purchaser but any person
claiming title under a purchase certified
by the Court. The protection is thus
available not only against the real
purchaser but also against anyone
claiming through him. In the present
case, the appellant as plaintiff was hit by
the section and the defendants were
protected by it."

"4. It is contended that the case
falls within the second sub-section under
which a suit is possible at the instance of
a third person who wishes to proceed
against the property, though ostensibly
sold to the certified purchaser, on tie
ground that it is liable to satisfy a claim
of such third person against the real
owner. Reliance is placed upon the
transfer by Syed Aulad Ali in favour of
the appellant which is described as a
claim by the transferee against the real
owner. The words of the second subsection refer to the claim of creditors and
not to the claims of transferees. The
latter are dealt with in first sub-section,
and if the meaning sought to be placed
on the second sub-section by the
appellant were to be accepted, the entire
policy of the law would be defeated by
the real purchaser making a transfer to
352 INDIAN LAW REPORTS ALLAHABAD SERIES
another and the first sub-section would
become almost a dead letter. In our
opinion, such a construction cannot be
accepted and the plaintiff's suit must be
held to be barred under S. 66 of the
Code."

"5. As an alternative, it was
contended before us that the title of
Hakir Alam was extinguished by long
and uninterrupted adverse possession of
Syed Aulad Ali and after him of the
plaintiff. The High Court did not accept
this case. Such a case is, of course, open
to a plaintiff to make if his possession is
disturbed. If the possession of the real
owner ripens into title under the
Limitation Act and he is dispossessed, he
can sue to obtain possession, for he does
not then rely on the benami nature of the
transaction. But the alternative claim
must be clearly made and proved. The
High Court held that the plea of adverse
possession was not raised in the suit and
reversed the decision of the two courts
below. The plea of adverse possession is
raised here. Reliance is placed before us
on Sukan v. Krishanand, ILR 32 Pat 353
and Sri Bhagwan Singh and others v.
Ram Basi Kuer and others, AIR 1957 Pat
157 to submit that such a plea is not
necessary and alternatively, that if a plea
is required, what can be considered a
proper plea. But these two cases can
hardly help the appellant. No doubt, the
plaint sets out the fact that after the
purchase by Syed Aulad Ali, benami in
the name of his son-in-law Hakir Alam
Ali continued in possession of the
property but it does not say that this
possession was at any time adverse to
that of the certified purchaser. Hakir
Alam was the son-in-law of Syed Aulad
Ali and was living with him.