RSA/227/2023 on 16 September 2026

2026:HHC:41771 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

RSA No. 227/2023 a/w

RSA No. 228/2023

Decided on: 16.09.2026

RSA No. 227/2023

Narender Pal

…..Appellant

Versus

Prem Sukh & ors.

….Respondents

RSA No. 228/2023

Narender Pal

…..Appellant

Versus

Prem Sukh & ors.

….Respondents

______________________________________________________________

Coram:

The Hon’ble Mr. Justice Romesh Verma, Judge.

Whether approved for reporting?1 For the Appellant(s): Mr. Lalit K. Sharma, Advocate.

For the Respondents: Mr. H. S. Rangra, Advocate.

Romesh Verma, Judge (oral)

The present appeals arise out of the judgment and decree, dated 31.07.2023, as passed by the learned Additional District Judge-I, Mandi, District Mandi, H.P., whereby the 1Whether reporters of the local papers may be allowed to see the judgment? Yes.

appeals, as filed by the present appellant/plaintiff/non-counter claimant have been dismissed and the judgment and decree, dated 23.09.2017, as passed by the learned Civil Judge (Junior Division),Chachiot at Gohar, District Mandi, dismissing the suit of the appellant/plaintiff and decreeing the counter claim of the defendants/respondents/counter claimants, have been affirmed.

The facts, as emerge, in the present case are that the plaintiff/appellant filed a suit for declaration and injunction against the defendants/respondents. As per case, as set up by the plaintiff/appellant, the land comprised in Khata No. 1, Khatuni No. 1, bearing Khasra No. 9, measuring 11-4-17 bighas, situated in Mauza Latogali, H.B No. 166, Illaqa Nand Garh, Tehsil Chachiot, Distt. Mandi. H.P. is recorded in the joint ownership of the defendants and in the possession of the plaintiff. The said revenue entries showing the ownership of the defendants are wrong, incorrect and hence not admitted. It was stated that the plaintiff is in open, peaceful, continuous, uninterrupted and hostile possession of the suit land from 06.04.1967 and prior to that his father was in peaceful possession and enjoyment of the suit land, who had raised orchard and constructed a house thereupon. After death of his father, the plaintiff possessed and cultivated the suit land and planted the fruit trees thereupon and also constructed one more slate roofed house, cowshed and a store and since then he is doing overt acts to the full knowledge of the previous owner Mast Ram who had died in the year 1990 and after his death the plaintiff is in peaceful possession and enjoyment of the suit land till date to the full knowledge of the defendants. The plaintiff acquired title qua the suit land by virtue of his adverse possession. Since the said revenue entries showing the ownership of the defendants are wrong, incorrect and contrary to the factual position, therefore, the plaintiff is liable to be declared as owner in possession of the suit land by passing a decree of declaration.

It was alleged that the defendants in the last week of March, 2012 started threatening the plaintiff to forcibly dislodge him from the peaceful possession and enjoyment of the suit land, which act on the part of the defendants is illegal. The cause of action arose to the plaintiff on 07.06.1979 when the plaintiff acquired title qua the suit land by virtue of adverse possession, therefore, under such circumstances, it was prayed that the decree for declaration to the effect that the plaintiff has become owner in possession of the suit land by adverse possession and the revenue entries appearing in name of the defendants as owners are wrong, illegal, null and void and are liable to be declared as such and the same are to be corrected in favour of the plaintiff as owner in possession of the suit land and the defendants be restrained from causing any sort of unlawful interference in the peaceful possession and enjoyment of the plaintiff over the suit land, and also alienating the same to some third person on the basis of the wrong revenue entries.

The suit came to be resisted by the defendants by filing written statement, wherein all the averments, as made in the plaint, were specifically refuted and denied. On merits, it was stated the defendants are absolute owners in possession of the suit property and the plaintiff has no right, title or interest over the suit land, thus claim of the plaintiff qua adverse possession over the suit land was specifically denied. Entries of possession in favour of the plaintiff have been incorporated in the records on the basis of the alleged order, dated 06.07.2010 of Assistant Collector, 1st Grade, Gohar, District Mandi, H.P. which is void ab initio being outcome of fraud, without jurisdiction and in violation of principles of natural justice. They prayed for dismissal of the suit.

It would be noticed that, as per the defendants, since the plaintiff had been causing unlawful interference in the peaceful possession of the defendants over the suit land on the basis of the wrong and void revenue entries, by filing the instant suit, they also filed counter claim for declaration of the entries of possession in favour of the plaintiff being void and illegal and for permanent prohibitory injunction restraining the plaintiff from causing unlawful interference in the suit property. It was averred in the counter claim that on receiving notice of the suit, the counter claimants/defendants obtained the revenue record and came to know that the suit property had been recorded in possession of the plaintiff in the revenue records. On acquiring the knowledge of these illegal and forged entries, the defendants made enquiries and it came to their knowledge that the plaintiff in collusion with revenue authorities had succeeded in obtaining an order for correction of revenue entries of possession qua the suit property in his favour vide order dated 06.07.2010 as passed by A.C. 1st Grade, Chachiot in case No. 8/2010.

As per the counter claimants/defendants, they were neither summoned nor were aware of the proceedings for correction of revenue entries before the A.C. Ist Grade, Chachiot as such the order dated 6.7.2010 is void ab initio, without jurisdiction and in violation of principles of natural justice. Therefore, by filing the counter claim, the defendants sought declaration to the effect that they are owners in possession of the suit land and the entries of possession in favour of the plaintiff are wrong, incorrect, and the order dated 6.7.2010 in case No. 8/2010 titled as Narender Pal Versus Prem Sukh and others as passed by the A.C. First Grade, Chachiot, Distt. Mandi H.P. is void, illegal being without jurisdiction and in violation of principles of natural justice. Further, consequential relief of permanent prohibitory injunction was sought restraining the plaintiff from causing unlawful interference in the suit property. In the alternative, it was prayed that if during the pendency of the counter claim, the plaintiff succeeded in dispossessing the counter claimants/defendants from the suit property, then a decree for possession of the suit property be passed in favour of the defendants.

The plaintiff filed written statement to the counter claim, as filed by the defendants, wherein all the averments, as made in the counter claim, were denied. It was denied that the defendants/counter claimants were neither summoned nor were aware of the proceedings for correction of revenue entries before the A.C. 1st Grade, Tehsil Chachiot. As per the plaintiff, the order, dated 06.07.2010 was passed by the Assistant Collector, 1st Grade, after due inquiry and spot inspection of the suit land, thus, the same is valid and legal. It was denied that in the month of July, 2012 when enquiries were made on the receipt of the notice of the suit, prior thereto, the defendants were not aware of the impugned order. It was reiterated that the plaintiff is in open, peaceful, continuous, uninterrupted and hostile possession of the suit land from 06.04.1967 during the life time of Mast Ram, the predecessor of the counter claimants/defendants and has maintained and planted fruit trees over the suit land and has also constructed house, cowshed and store upon the suit land and, thus, has acquired perfect title qua the suit land by way of adverse possession.

The defendants filed replication to the written statement filed to the counter claim, reiterating therein the averments as made in the counter claim.

The learned trial court on 25.03.2014 framed the issues in the following manner:-

1. Whether the plaintiff is continuing in possession of the suit land since 06.04.1967 and had become owner of the same possession, as prayed for? OPP

2. Whether the revenue entries appearing in the name of defendants as owners are liable to be declared as null and void, as prayed for? OPP

3. Whether the defendants are liable to be restrained from causing any interference over the suit land through a decree of permanent prohibitory injunction, as prayed for? OPP

4. Whether the revenue entries in the name of plaintiff showing him in possession of the suit hand are null and void, as alleged? OPD

5. Whether the suit is not maintainable in the present form, as alleged? OPD

6. Whether the order dated 06.07.2010, passed in case No. 8/2010 titled as Narender Pal vs. Prem Sukh etc. by A.C. 1st Grade Chachiot at Gohar, District Mandi, H.P., is liable to be declared null and void, as alleged? OP/counter claimant.

7. Whether the plaintiff/non counter claimant is liable to be restrained from causing any interference over the suit land, as alleged? OP/counter claimant.

8. Whether in case defendants/ counter claimants are dispossessed from the suit land during the pendency of the suit, it is liable to be restored to its original position, as alleged? OP/counter claimant.

9. Whether the counter claim is not maintainable, as alleged? OP/non counter claimant.

10. Whether the counter claim is time barred, as alleged? OP/non counter claimant.

11. Whether the counter claimant has no enforceable cause of action, as alleged? OP/non counter claimant.

12. Whether the counter claim is not properly valued for the purpose of court fee and jurisdiction, as alleged? OP/non counter claimant.

13. Whether the counter claim is not legally instituted and constituted, as alleged? OP/non counter claimant.

14. Relief?

The learned trial court directed the parties to adduce evidence in support of their contentions to corroborate

their respective case and ultimately, the learned trial court vide its judgment and decree dated 23.09.2017 dismissed the suit of the plaintiff/appellant and decreed the counter claim, as filed by defendants, whereby order dated 06.07.2010 in case No. 8/2010, titled as Nagender Pal vs Prem Sukh was declared null and void and the plaintiff was directed to hand over the vacant and peaceful possession of the suit property.

The plaintiff/appellant, feeling dissatisfied by the judgment and decree, dated 23.09.2017, as passed by the learned trial court, preferred two appeals before the learned first Appellate Court, which too came to be dismissed vide judgment and decree dated 31.07.2023.

Still feeling aggrieved by the aforesaid judgments and decrees, the plaintiffs/appellants have preferred the present regular second appeals before this Court.

With consent of the learned counsel for the parties, the present appeals are finally heard on the following substantial question of law:- Whether the judgments and decrees of both the learned Courts below are perverse in which the pleadings and evidence led by the appellant have been totally ignored?

It is contended by Dr. Lalit Sharma, learned counsel for the appellants that the impugned judgments and decrees, as passed by the learned Courts below, are erroneous, wrong and, thus, liable to be quashed and set aside. He has submitted that the learned Courts below have not appreciated the point in controversy and wrongly declined the relief as sought by the plaintiff. He has submitted that there is ample evidence on record to show and corroborate that by virtue of adverse possession, the plaintiff has perfected his title, therefore, on the strength of the title, the suit as filed by the plaintiff ought to have been decreed. He has further submitted that once the plaintiff has been able to prove plea of adverse possession, therefore, counter claim, as preferred by the defendants, deserves to be rejected. He would urge that after accepting the present appeals, the suit as instituted by the plaintiff deserves to be decreed and the counter claim as instituted by defendants deserves to be rejected.

On the other hand, Mr. H. S. Rangra, learned counsel the respondents/defendants has defended the impugned judgments and decrees, as passed by the learned Courts below. He has submitted that there are concurrent findings of fact returned by the Courts below, therefore, this Court, while exercising the power under Section 100 of CPC, has very narrow and limited power to interfere in the well reasoned judgments and decrees as passed by the learned Courts below. The learned courts below, after thrashing entire evidence, as placed on record, have rightly dismissed the suit filed by the plaintiffs and have decreed the counter claim as filed by defendants by invoking legal provisions of law.

I have heard the learned counsel for the parties and have perused the record carefully.

As noticed above, the plaintiff/appellant filed a suit seeking declaration and injunction on the ground that he is in open, peaceful, continuous, uninterrupted and hostile possession of the suit land from 06.04.1967 and prior to that his father was in peaceful possession and enjoyment of the suit land, who had raised orchard and constructed a house upon the same. After his death, the plaintiff possessed and cultivated the suit land and planted the fruit trees upon the same and also constructed one more slate roofed house, cowshed and a store upon the suit land and since then the plaintiff is doing overt acts to the full knowledge of the previous owner Mast Ram, who on 07.06.1967 asked the plaintiff to hand over the possession of the suit land to him and the plaintiff emphatically denied his title.

It is the case of the plaintiff that the revenue entries showing the ownership of the defendants over the suit land are wrong, incorrect and contrary to the factual position and the plaintiff is liable to be declared as owner in possession of the suit land by passing a decree of declaration. Hence, the suit.

The suit was contested by the defendants on the ground that they are absolute owners in possession of the suit property and the plaintiff has no right, title or interest over the suit land and the entries of possession in favour of the plaintiff in the records on the basis of the alleged order, dated 06.07.2010 of Assistant Collector, 1st Grade, Gohar, District Mandi, H.P. are void ab initio being outcome of fraud, without jurisdiction and in violation of principles of natural justice.

On the other hand, in the counter claim, the defendants sought declaration to the effect that they are owners in possession of the suit land and the entries of possession in favour of the plaintiff are wrong, incorrect, and the order dated 6.7.2010 in case No. 8/2010 titled as Narender Pal Versus Prem Sukh and others as passed by the A.C. First Grade, Chachiot, Distt. Mandi H.P. are void, illegal being without jurisdiction and in violation of principles of natural justice.

The plaintiff in order to prove its case including plea of adverse possession has examined as many as 22 witnesses.

PW1 Narender Pal, placed on record his affidavit, Ext. PW1/A, wherein he has reiterated all the averments as made in the plaint. In his affidavit, he has stated that he is in adverse possession of the suit land since 06.4.1967 and prior to this date, his father was in possession of the same. His father had planted orchard and raised construction of one room over the same. After death of his father, the plaintiff is in possession of the suit land with express consent of the owner of the suit land, i.e. Mast Ram. He stated that on 7.6.1967 Mast Ram father of the defendants asked him to hand over possession of the suit land and he specifically and emphatically denied to do the same. Thereafter, his possession is open, hostile, uninterrupted and by virtue of adverse possession he has become owner of the suit land.

In cross-examination, he has stated that the suit land was purchased by Mast Ram in the year 1963-64. He does not know what amount was paid to purchase the suit land. His date of birth is 15.11.1950. He was studying in 7th standard at Gohar in the year 1962-63. Thereafter, he got education at Sarkaghat in different schools. As per PW1, his father was working as Patwari and he was posted at Sarkaghat. He obtained his diploma J.E. from Polytechnic College, during the years 1967 to 1970 and there he was residing in a rented accommodation and hostel. He denied that in order to utilize the suit land for himself, he had planted trees over the suit land. He stated that he does not remember that Mast Ram had executed power of attorney in his favour. He denied that he himself used power of attorney and on the basis of the same, he obtained permission for cutting of trees. He denied that in the year 1967 Mast Ram demanded suit land from him and he refused for the same. He denied that the Tehsildar made correction in the revenue records in an illegal manner. He denied that Mast Ram used to cultivate the suit land. He denied that he is deposing falsely in order to gain undue and unfair advantage from the defendants.

PW2 Lal Chand, has placed on record, his affidavit, Ext. PW2/A, wherein he stated that he knew the plaintiff. The disputed land is 11 and ¼ Bighas. After death of Khazan Singh, from 06.04.1967, the suit land is in open, uninterrupted possession of the plaintiff without any objection of anyone. He stated that for cutting of the trees and digging the suit land, an agreement was executed between plaintiff and Brestu Ram. He stated that he had also dug the suit land in order to plant the trees. Apple plants were planted with help of the labourers. As per this witness, one house was constructed consisting of two rooms, bathroom, cow shed, store and toilet. He stated that electricity meter has been installed in the house in the name of the plaintiff and telephone in the name of his wife.

PW3, Nar Singhu, has tendered in evidence his affidavit, Ext. PW3/A and deposed that he knew the plaintiff and and seen the suit land. In the year 1987 he had raised construction of two rooms, toilet of the plaintiff and apart from him, second mason was Paras Ram. It took about three months for the construction of the said house. During the construction of the house, he found the plaintiff to be owner in possession of the suit land. He stated that he never found Mast Ram to be owner in possession of the suit land.

PW4, Paras Ram, also tendered in evidence his affidavit, Ext. PW4/A, wherein he has reiterated the averments as made by PW3. He did not present himself for cross- examination.

PW5 Dalip Kumar, has placed on record his affidavit, Ext. PW5/A wherein he had deposed that he knew the plaintiff and as per him, orchard was planted by plaintiff over the suit land. He carried construction material of the plaintiff including sand, cement over the mules. He stated that it is only the plaintiff who is owner in possession of the suit land.

PW6 Karam Dass, tendered in evidence his affidavit, Ext. PW6/A, wherein he has deposed that he had worked as labourer while construction of two rooms and toilet over the suit land. Along with him two other masons also worked in the construction of the said structure. He stated that it is the plaintiff who is in possession of the suit land. The said witness did not make himself available in the witness box for his cross-examination.

PW7, Jai Ram, has filed his affidavit, Ext. PW7/A wherein he has deposed that the plaintiff is owner of the suit land.

PW8 Besar Ram, has filed his affidavit, Ext. PW8/A and deposed that he had provided mules @ Rs.750/-for carrying sand to construction site of the plaintiff over the suit land.

PW9 Jai Ram has filed his affidavit, Ext. PW9/A and deposed that he had worked over the suit land for about 50 years ago. He had cut bushes and dug out the suit land for plantation of trees. After the death of his father, the plaintiff had planted new trees. He had also constructed two houses over the suit land.

PW10 Keshav Ram has placed on record his affidavit, Ext. PW10/A and deposed that about 30 years ago, the plaintiff asked him to bring the stones for construction of the house over the suit land. The plaintiff got started

construction work of his house from masons Paras Ram, Nar Singh etc. This witness did not present himself for cross- examination.

PW11 Upender Singh, Patwari, deposed that Ext. PW11/A has been prepared in his writing and the same is correct as per revenue record. Copies of jamanandi Ext. PW11/B and tatima Ext. PW11/C. were tendered in evidence by him.

PW12 Madan Singh, Attendant, Medical Record Section, IGMC, Shimla had brought the requisitioned record.

PW13 Mohar Singh deposed that the plaintiff had purchased 25 trees from the Horticulture Department.

PW14 Dina Nath had brought the requisitioned record from Horticulture Department, Mangrotu.

PW15

Geeta Nand, who was working as Horticulture Development Officer at Mangrotu, stated that the plaintiff had purchased 200 plants from the Department vide receipt No. 131445, Ext. PW1/D.

PW16 Vidya Prakash, Superintendent, BSNL, Office Sundernagar, deposed that Ms. Meera Thakur (wife of the plaintiff) had got installed telephone on the permission given by the BSNL.

PW17 Chuni Lal, J.E. from Electricity Board, deposed that electricity meter bearing No. AKT 1000055 has been installed in the name of plaintiff.

PW18 Ram Kumar, deposed that the plaintiff had purchased 15 cement bags on 21.8.1987, 15 cement bags on 21.09.1987, 12 cement bags on 26.9.1986, vide cash memos, Ext. PW1/J, Ext. PW1/H and Ext. PW1/K, respectively.

PW19 Hira Singh deposed that he had also sold five cement bags to the plaintiff on 20.10.1988.

PW20, Jagdish, Record Keeper, Tehsil Office, Gohar, had brought the requisitioned record.

PW21 Joginder Singh, Retired Tehsildar, deposed that on application moved by the plaintiff, he visited the spot and after enquiry, the suit land was found to be in possession of the plaintiff. He stated that since the defendants had not put in appearance, therefore, one sided proceedings were initiated against them.

In cross-examination, he stated that the plaintiff had given the address of the defendants of village Ladogah, Tehsil Chachiot and apart from that no other address was given. He stated he does not know that the defendants are resident of Sarkghat. As per PW21, he does not know that the parties are related to each other being Mama and Bhanja. He stated that despite passing of repeated orders, the plaintiff did not file the correct address of the defendants. The publication was done in the news paper. He does not know that defendants are simpleton villagers. In the application, the plaintiff did not specify that on what basis he intended to incorporate his possession over the suit land. He admitted that he did not hold any enquiry with respect to correct address of the defendants. He stated that he had passed repeated orders for furnishing of correct address of the defendants, but the same was not done by the plaintiff. He stated that he does not know that the plaintiff fraudulently had changed the revenue entries by incorporating his name in the revenue record. He denied that he had passed the order, Ext.PW1/R against the Rules. He admitted that the statements recorded by him were without oath.

PW22 Kushal Singh deposed that they were running slate mine in Sundernagar. On 9.12.1986 he had sold slates to the plaintiff against cash Memo, Ext. PW1/F.

In order to rebut the case of the plaintiff, defendant No.1 Prem Sukh appeared in the witness box as DW1 and placed on record his affidavit, Ext. DW1/A, wherein all the averments as made in the written statement were reiterated. He stated that he is owner in possession of the suit land measuring 11-04-17 Bighas and earlier his father Mast Ram was owner in possession of the suit land. After death of their father, on 22.6.1990, suit land was inherited by the defendants and necessary mutation was attested in the year 1999. As per this witness, the plaintiff is son of real sister of his father, meaning thereby, he is real ‘Bhanja’ of his father. The suit land never remained in possession of the plaintiff and he never acquired adverse possession over the same. The instant suit has been filed on wrong and incorrect facts. He denied that the plaintiff acquired the title of the suit land by virtue of adverse possession on 06.04.1967. The plaintiff fraudulently obtained an order on 6.7.2010 at the back of the defendants. Despite knowing the facts and being closely related, wrong address was mentioned in the said proceedings in order to prejudice the rights of the defendants. The revenue authority has passed the impugned order dated 6.7.2010 at the back of the defendants. The order, dated 6.7.2010 was not in the knowledge of the defendants and the same came to their knowledge only in the month of July 2012 when they received the notice of the suit.

In cross-examination, the plaintiff could not extract anything favourable from this witness.

The plaintiff has also placed on record the electricity bills, Ext. PW17/A, bills of telephone, as issued by BSNL, Ext. PW16/B, copy of order, dated 6.7.2010, Ext. PW1/Q.

In the present case, primarily, the entire case hinges around the plea of the plaintiff as has been raised by him with respect to acquiring the title of the suit land on the basis of adverse possession. Though in the pleadings, it has been stated by the plaintiff that from 6.4.1967 his possession is adverse to the right of the defendants and he has acquired title in the year 1967 on the basis of the adverse possession, however, save and except his bald assertion as made in the plaint, nothing has been placed on record by him either by way of oral or documentary evidence to substantiate or corroborate that he has acquired the title by virtue of adverse possession.

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 rights of true owner, it is for him to clearly plead and establish all facts necessary to prove his adverse possession.

Adverse possession is a right which comes into play not just because someone loses his right to reclaim the property out of continuous and willful neglect, but also on account of possessor’s positive intent to dispossess. Therefore, it is important to take into account before stripping somebody on his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the owner of the property on paper. The intention is a mental element which is proved and disproved through positive acts. Existence of some events can go a long way to weaken the presumption of intention to dispossess, which might have painstakingly grown out of long possession which otherwise would have sufficed in a standard adverse possession case. The fact of possession is important in more than one ways; firstly, due compliance on this court attracts the Limitation Act and it also assists the court to unearth the intention to dispossess.

The intention to dispossess needs to be open and hostile enough to bring the same to the knowledge and the plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving or omission of the right to defend or care for the integrity of property on the part of the owner of the property on paper. Adverse possession statutes, like other statutes of limitation, rest on a public policy that does not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence. Intention implies knowledge on the part of adverse possessor.

The issue is that intention of the adverse user gets communicated to the owner of the property on paper. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the owner of the property on paper. Intention to possess cannot be substituted for intention to dispossess which is essential to prove adverse possession. Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law.

The Hon’ble Supreme Court has laid down the exposition of law qua adverse possession in the following manner:

(i) In T. Anjanappa and others vs. Somalingappa and another, (2006) 7 SCC 570, the Hon’ble Supreme Court held as under: “12. The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. 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 denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property.

13. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them.

“24. It is a matter of fundamental principle of law that where

possession can be referred to a lawful title, it will not be considered to be adverse. It is on the basis of this principle that it has been laid down that since the possession of one co- owner can be referred to his status as co-owner, it cannot be considered adverse to other co- owner.

14. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to be adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful Owner's title e.g. trustees, guardians, bailiffs or agents. Such persons cannot set up adverse possession. "Adverse possession" means a hostile possession which is expressly or impliedly in denial of title of the true owner. Under Article 65 of the Limitation Act, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. Where possession could 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.

(ii) In Chatti Konatri Rao and others vs. Palle Venkata Subba Rao, (2010) 14 SCC 316, the Hon’ble Apex Court further held as under: “13. What facts are required to prove adverse possession have succinctly been enunciated by this Court in the case of Karnataka Board of Wakf vs. Government of India and Ors. (2004) 10 SCC 779. It has also been observed that a person pleading adverse possession has no equities in his favour and since such a person is trying to defeat the rights of the true owner, it is for him to clearly plead and establish necessary facts to establish his adverse possession. Paragraph 11 of the judgment which is relevant for the purpose reads as follows: "11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina AIR 1964 SC 1254, Parsinni v. Sukhi (1993) 4 SCC 375 and D.N. Venkatarayappa v. State of Karnataka (1997) 7 SCC 567) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma

14. In view of the several authorities of this Court, few whereof have been referred above, what can safely be 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. The possession must be open and hostile enough so that it is known by the parties interested in the property. The plaintiff is bound to prove his title as also possession within 12 years and once the plaintiff proves his title, the burden shifts on the defendant to establish that he has perfected his title by adverse possession. Claim by adverse possession has two basic elements i.e. the possession of the defendant should be adverse to the plaintiff and the defendant must continue to remain in possession for a period of 12 years thereafter.

15. Animus possidendi as is well known a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until possessor holds property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. Plea of adverse possession is not a pure question of law but a blended one of fact and law.”

In the present case, except self serving statement of the plaintiff and other witnesses, there is no material placed by him on record to accept his plea, thus, he has failed to bring his case within the parameters to prove adverse possession, as laid down by the Hon’ble Supreme Court. It has not been stipulated and proved that what was the nature of possession of the plaintiff, whether the factum of the possession was known to the defendants, how long his possession continued and whether his possession was open and undisturbed. Though the date, on which the plaintiff came into possession of the suit land has been incorporated in the plaint half-heartedly, but the said date has not been proved by leading any independent evidence. On the self serving statement of the plaintiff, the Court will not be convinced to believe his version that since 1967 he is coming in uninterrupted, open and peaceful possession of the suit land.

The learned courts below have concurrently come to the conclusion that possession, if any, of the plaintiff is permissive and there is no evidence on record to show that the possession of the plaintiff was well within the knowledge of the true owner and same was continuous and uninterrupted for more than 12 years.

Interestingly, in the present case, the parties are real Mama and Bhanja, meaning thereby plaintiff, who is son of real sister of father of the defendants, Mast Ram, has set up plea of adverse possession against his own real Mama. The evidence clearly suggests and there is no categorical denial by the plaintiff which gives inference that for certain purposes including cutting of trees, power of attorney was given by Mast Ram to the plaintiff and taking undue and unfair advantage of the same, intention of the plaintiff became bad and on the strength of his permissive possession, he has raised plea of adverse possession against his real Mama.

It has come on record that in the proceedings, which led to passing of order by the Assistant Collector, 1st Grade, on 6.7.2010, though the parties were closely related to each other, the plaintiff intentionally and willfully, had mentioned wrong address of the defendants. It has come in the statement of Tehsildar that the plaintiff was repeatedly directed to provide correct address of the defendants, but he failed to do and finally the defendants were served by means of the publication.

The Courts below have rightly come to the conclusion that the order, dated 6.7.2010 was passed at the back of the defendants by giving wrong address in the memo of parties and interestingly, when the instant civil suit was filed, correct address was mentioned, which can be deciphered from the memo of parties. The aforesaid order is void ab initio and same was passed at the back of the defendants without following principles of natural justice and the same was obtained by the plaintiff fraudulently.

It has come on record that over the suit land, the defendants had raised loan and the said loan was repaid by the defendants to the concerned authority. Had it been intention of the defendants not to get possession and ownership of the suit land they would never have returned the loan amount. There is consistent revenue entries right from 1967 till 2010 whereby the predecessor in interest of the defendants is being shown owner in possession of the suit land. For the first time, when the illegal entries were made on 6.7.2010 by virtue of order of the Assistant Collector, it is only then, in the possessory

column the name of the plaintiff was incorporated. On the strength of the illegal and fraudulent entries, no relief can be granted to the plaintiff.

This Court has no hesitation to hold that act and conduct of the plaintiff is not above board and with dishonest intention he has filed suit claiming adverse possession against his real Mama.

Merely on the strength of electricity and telephone bills, it can not be held or presumed that the plaintiff has acquired title by virtue of adverse possession. The exposition of law as laid down by the Hon’ble Supreme Court qua adverse possession is very specific and categorical and the plaintiff has failed to brought his case within the said parameters. Merely on the strength of the permissive possession, no relief can be granted to the plaintiff.

The Hon’ble Supreme Court in catena of judgments has held that the first appellate court is the final court of the fact. No doubt, second appellate court exercising the power under Section 100 CPC can interfere with the findings of fact on limited grounds such as - (a) where the finding is based on inadmissible evidence; (b) where it is in ignorance of the relevant admissible evidence; (c) where it is based on misreading of evidence; (d) where it is perverse, but that is not case in hand.

The Hon’ble Supreme Court while dealing with scope of interference under Section 100 in Hero Vinoth (minor) vs. Seshammal, (2006) 5 SCC 545 has held as under:

18. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the CPC. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v.

Century Spg. & Mfg. Co. Ltd. (AIR 1962 SC 1314) held that : "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the

Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.

20. to 22 xx xxxxxx

23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.”

The Hon’ble Supreme Court in Annamalai vs. Vasanthi, 2025 INSC 1267, has held as follows:- “16. Whether D-1 and D-2 were able to discharge the aforesaid burden is a question of fact which had to be determined by a court of fact after appreciating the evidence available on record. Under CPC, a first appellate court is the final court of fact. No doubt, a second appellate court exercising power(s) under Section 100 CPC

can interfere with a finding of fact on limited grounds, such as, (a) where the finding is based on inadmissible evidence; (b) where it is in ignorance of relevant admissible evidence; (c) where it is based on misreading of evidence; and (d) where it is perverse. But that is not the case here.

17. In the case on hand, the first appellate court, in paragraph 29 of its judgment, accepted the endorsement (Exb. A-2) made on the back of a registered document (Exb. A-1) after considering the oral evidence led by the plaintiff-appellant and the circumstance that signature(s)/thumbmark of D-1 and D-2 were not disputed, though claimed as one obtained on a blank paper. The reasoning of the first appellate court in paragraph 29 of its judgment was not addressed by the High Court. In fact, the High Court, in one line, on a flimsy defense of use of a signed blank paper, observed that genuineness of Exb. A-2 is not proved. In our view, the High Court fell in error here. While exercising powers under Section 100 CPC, it ought not to have interfered with the finding of fact returned by the first appellate court on this aspect; more so, when the first appellate court had drawn its conclusion after appreciating the evidence available on record as also the circumstance that signature(s)/thumbmark(s) appearing on the document (Exb.A-2) were not disputed. Otherwise also, while disturbing the finding of the first appellate court, the High Court did not hold that the finding returned by the first appellate court is based on a misreading of evidence, or is in ignorance of relevant evidence, or is perverse. Thus, there existed no occasion for the High Court, exercising power under Section 100 CPC, to interfere with the finding of the first appellate court regarding payment of additional Rs. 1,95,000 to D-1 and D-2 over and above the sale consideration fixed for the transaction.

18. Once the finding regarding payment of additional sum of Rs.1,95,000 to D-1 and D-2 recorded by the first appellate court is sustained, there appears no logical reason to hold that the plaintiff (Annamalai) was not ready and willing to perform its part under the contract particularly when Rs. 4,70,000, out of total consideration of Rs. 4,80,000, was already paid and, over and above that, additional sum of Rs.1,95,000 was paid in lieu of demand made by D-1 & D-2. This we say so, because an opinion regarding plaintiff’s readiness and willingness to perform its part under the contract is to be formed on the entirety of proven facts and circumstances of a case including conduct of the parties. The test is that the person claiming performance must satisfy conscience of the court that he has treated the contract subsisting with preparedness to fulfil his obligation and accept performance when the time for performance arrives.”

As observed above, the Hon’ble Apex Court has repeatedly held that the scope of interference under Section 100 CPC is limited and the interference will be in those cases where the judgments are perverse and based on no evidence. On perusal of the impugned judgments and decrees, this court is of the opinion that the same are valid, legal and sustainable in the eyes of law and there is no infirmity and illegality in the same. and no interference of any kind is required in the same. The substantial question of law is answered accordingly.

No other point was urged by either of the parties.

In view of aforesaid discussions and for the reasons stated hereinabove, there is no merit in these appeals and the same are accordingly dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.

(Romesh Verma) 16th September, 2026

Judge (pankaj)