BRIJESH KUMAR AND ANOTHER versus SHARDABAI (DEAD) BY LRS. AND OTHERS on 1 October 2019

964

SUPREME COURT REPORTS

[2019] 14 S.C.R.

BRIJESH KUMAR AND ANOTHER

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v.

SHARDABAI (DEAD) BY LRS. AND OTHERS

(Civil Appeal No.1090 of 2008)

BOCTOBER 01, 2019

[NAVIN SINHA AND INDIRA BANERJEE, JJ.]

Adverse Possession: Suit for adverse possession filed byplaintiff-respondent in 1990 on the ground of possession of landsfor 30 years prior to filing of the suit relying on the Khasra entriesCfor 1960-1961 as the foundation of the claim – Case of appellantswas that the suit lands was sold by the original owners to ‘UD’ byway of sale deed dated 11.10.1972 which was subsequentlypurchased by appellants; that Khasra entries for 1969-1973 showed‘UD’ in possession of the lands and that in 1974-1978, the KhasraDentries again showed ‘UD’ as the landlord; that Khasra entries for1960-1961 and 1974-1978 showing possession of the plaintiff wereinterpolations in red color ink while the entries in name of ‘UD’after purchase were made in blue color ink – Held: Plaintiff-respondents claimed adverse possession from 1960-1961 – If theplaintiff’s possession itself originated in 1960-1961, it is difficultEto appreciate how the Khasra entries in its name came to be madein the very same year – s.115 of the MP Land Revenue Code providesthat if the Tehsildar finds that a wrong or incorrect entry has beenmade in the land records prepared under s.114 by an officersubordinate to him, he shall direct necessary changes to be madeFtherein in red ink after making such enquiry from the personconcerned – Plaintiff led no evidence whatsoever when theapplication for correction in the khasra entry was made and thatthe original land owner was heard before the corrections were made– Khasra entries in red ink, claimed by the plaintiff in proof ofpossession remained unexplained and doubtful – After purchase ofGthe lands by ‘UD’, her name was entered in the Khasra as landlordduring 1969-1973 along with possession as also during 1974-1978– Once it is concluded that the red ink entries regarding correctionsin the Khasra showing possession of the plaintiff were suspicious,based on fraud and forgery, the recordings in the name of theH

plaintiff were irrelevant – The name of ‘UD’ was also shown in theKhasra entries for 1984-1989 in blue ink – Therefore, conclusionof the first appellate court with regard to possession of the landsbeing with ‘UD’ after purchase considered along with the report ofthe court commissioner, and who subsequently sold it to theappellants on basis of a registered sale deed, called for nointerference – Also, the suit land was sold to ‘UD’ before the expiryof 12 years on 11.10.1972 and she was put in possession and,therefore, plaintiff’s claim of uninterrupted possession for 12 yearswas unsustainable as completely devoid of substance – Plaintifffailed to establish peaceful, open and continuous possessiondemonstrating a wrongful ouster of the rightful owner – The onuslay on the plaintiff to establish when and how he came intopossession, the nature of his possession, the factum of possessionknown and hostile to the other parties, continuous possession over12 years which was open and undisturbed – Plaintiff failed todischarge the onus – The order of the High Court is held to beunsustainable and is set aside.

Allowing the appeals, the Court

Conclusion

Allowing the appeals, the Court

HELD: 1. The plaintiff in a suit filed in 1990, assertedpossession of the lands for past 30 years prior to the filing of thesuit, relying on the Khasra entries for 1960-1961. The natureand origin of the claim for possession was absent in the pleadings.In his evidence, the respondent deposed that since the originalland owner had failed to return his bullocks and agriculturalequipments borrowed in 1958-1959, he had taken possession ofthe lands in 1960-1961. The original plaintiff expired on26.05.1994. The respondents, who are his legal heirs, then filedan application on 21.04.1995 to amend the pleadings to bring itin accord with the evidence. If the plaintiff’s possession itselforiginated in 1960-1961 it is difficult to appreciate how the Khasraentries in its name came to be made in the very same year.Section 115 of the Code provides that if the Tehsildar finds that awrong or incorrect entry has been made in the land recordsprepared under Section 114 by an officer subordinate to him, heshall direct necessary changes to be made therein in red ink aftermaking such enquiry from the person concerned as he may deemfit after due notice. The plaintiff led no evidence whatsoever AB

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Awhen the application for correction in the khasra entry was madeand that the original land owner was heard before the correctionswere made. The entries in the name of the purchaser pursuant tothe sale deed dated 11.10.1972 are in blue ink. The correctionsin the khasra entry, the sheet anchor of the respondents claimtherefore remains unexplained and doubtful. At this stage, it isBcrucial to notice the findings of the appellate court that the sonand nephew of the Plaintiff were working as clerks in thecollectorate. They were proceeded against departmentally andin a criminal prosecution regarding the corrections made in redink in the Khasra entries incorporating the name of the plaintiffCas being forged and fictitious. The fact that they may have beenacquitted in the criminal prosecution on a benefit of doubt, orthat exoneration may have been ordered in the departmentalproceeding based on procedural irregularity, are not consideredrelevant as findings in a civil suit are to be based on preponderance of probabilities considering the nature of evidence available.D[Paras 6, 7] [970-E-H; 971-A-D]

2. The conclusion of the first appellate court with regard topossession of the lands being with ‘UD’ after purchase consideredalong with the report of the court commissioner, and whosubsequently sold it to the appellants on basis of a registeredEsale deed, called for no interference. The finding that theappellants had admitted the possession of the plaintiff-respondenton account of the failure of the original land owners to return hisbullocks and agricultural equipments is held to be perverse. Theplaintiff claimed adverse possession from 1960-1961. The landsFwere sold to ‘UD’ before the expiry of 12 years on 11.10.1972and she was put in possession. The plaintiff’s claim ofuninterrupted possession for twelve years was thereforeunsustainable as completely devoid of substance. [Paras 9, 10][971-F-H]

G3. Adverse possession is hostile possession by assertionof a hostile title in denial of the title of the true owner. Therespondent had failed to establish peaceful, open and continuouspossession demonstrating a wrongful ouster of the rightful owner.It thus involved question of facts and law. The onus lay on therespondent to establish when and how he came into possession,H

the nature of his possession, the factum of possession knownand hostile to the other parties, continuous possession over 12years which was open and undisturbed. The respondent-plaintifffailed to discharge the onus. The order of the High Court is heldto be unsustainable and is set aside. The order of the firstappellate court is restored and the suit is dismissed. [Paras 13,14] [972-E-G; 973-C]

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M. Venkatesh & Ors. v. Bangalore DevelopmentAuthority & Ors.(2015) 17 SCC 1 : [2015] 11 SCR454 ;Chhatti Konati Rao & Ors. v. Palle Venkata SubbaRao(2010) 14 SCC 316 : [2010] 15 SCR 923– relied on.

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Dagabai Fakirmahomed v. Sakharam Gavaji & Ors.,AIR 1948 BOM 149 ;Wontakal Yalpi ChenabasavanaGowd v. Rao Bahadur Y. Mahabaleshwarappa & Ors.AIR 1954 SC 337 : [1955] SCR 131 ; M.V.S.Manikayala Rao v. M. Narasimhaswami & Ors.,AIR 1966 SC 470 : [1966] SCR 628 – referred to.

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Case Law Reference

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CIVIL APPELLATE JURISDICTION: Civil Appeal No.1090of 2008

From the final Judgment and final Order dated 12.01.2006 of theHigh Court of Madhya Pradesh, Jabalpur Bench at Gwalior in Civil SecondAppeal No.657 of 1997

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Civil Appeal No.1091 of 2008

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AManoj Prasad, N.K. Jain, Sr. Advs., Basava Prabhos P., PrakashKumar Singh, Ashutosh Dubey, Vinod Mehta, Chinmaya Deshpande,Vikas K. Singh, Siddharth, T. N. Singh, Advs. for the Appellants.

Puneet Jain, Harsh Jain, Harshit Khanduja, Ms. Pratibha Jain,Ms.Prachi Mishra, Rahul Kaushik, Chaitanya, Arjun Garg, Advs. for theBRespondents.

The Judgment of the Court was delivered by NAVIN SINHA, J.

1. The appellants are aggrieved by the order allowing the plaintiff’sCsecond appeal. The High Court reversed the order of the First AppellateCourt and restored the order of the Trial Court decreeing the plaintiff’ssuit for adverse possession.

2. The suit lands comprise of 4 out of 6 Biswas of land situated inSurvey No. 493 of Patwari Halka No.76 at Village-Purani Chhabani,DGuna. The Original land owners were Mool Chand and Kashi Ram.The suit lands were sold to defendant no.9 Urmila Devi by registeredsale deed dated 11.10.1972. By two separate registered sale deeds dated22.08.1989 she sold an area of 3414.4 square feet each to the appellantsin both the appeals. Possession was handed over and constructionsraised by them. The plaintiff Matadin then filed Suit No. 45-A/1995 onE28.08.1990 claiming adverse possession over the suit lands relying onKhasra entries for 1960-1961. The plaintiff also sought a declaration ofnullity against the sale deeds executed by the original land owners andsubsequent thereto. The sole plaintiff Matadin expired on 26.05.1994.An amendment application was subsequently filed by his legal heirs onF21.04.1995 contending that Matadin had come in possession of the suitlands after the original land owners Moolchand and Kashi Ram hadfailed to return his bullocks and agricultural implements. The Civil JudgeClass I, Guna decreed the suit holding that the plaintiff had perfected histitle by continuous, hostile and uninterrupted possession for more than12 years adverse to that of the original land owners, and that the saleGdeeds were a nullity. Regular Civil Appeal 19-A of 1996 preferred bythe appellants was allowed holding that the Trial court had overlookeddocumentary evidence on record to arrive at an erroneous conclusion ofadverse possession on basis of oral evidence only. The second appealby the plaintiff was subsequently allowed by the impugned order holding H

that the conclusions of the first appellate court were erroneous, restoringthe order decreeing the suit. Thus, the present appeal.

3. Shri Manoj Prasad, learned senior counsel appearing for theappellants, submitted that the findings of facts by the first appellate courtare final. The High Court in a second appeal ought not to have reappraisedthe evidence to arrive at a different conclusion, without any finding ofperversity. The plaintiff never acquired title by adverse possession asthe original owner sold the lands to Urmila Devi before expiry of twelveyears. The purchaser had come into possession, raised certainconstructions, and resold part of the lands to the appellants whoconsequently came into possession also. The original owners had soughtpossession from the plaintiff in 1963-1964 also which was declined. Theplaintiff never established the origin of his possession. The amendmentof the plaint was an afterthought. The Khasra entries for 1969-1973show Urmila Devi in possession of the lands. In 1974-1978, the Khasraentries again show Urmila Devi as the landlord. The Khasra entries for1960-1961 and 1974-1978 showing possession of the plaintiff wereinterpolations in red color ink, while the entries in the name of UrmilaDevi after purchase were made in blue color ink. Hitesh Kumar andHemraj, the son and nephew respectively, of the plaintiff were clerks inthe collectorate. They were suspended for making false entries, followedby departmental enquiry and criminal prosecution. The CourtCommissioner had also reported possession having been transferredpursuant to the sale deed. The plaintiff had filed an objection after whichthe Court Commissioner had again inspected the disputed land and filedfurther report in favour of the appellants. All these have not at all beenconsidered by the High Court. Reliance was placed on M. Venkatesh& Ors. vs. Bangalore Development Authority & Ors., (2015) 17 SCC1, to contend that the adverse possession could be proved only whenpossession was peaceful, open, continuous and hostile.

4. Shri N.K. Jain, learned senior counsel, adopted the samearguments on behalf of the appellants in Civil Appeal No. 1091 of 2008.

5. Shri Puneet Jain, learned counsel for the respondents, submittedthat the plea of adverse possession was taken in the original plaint. Nonew fact was sought to be introduced by way of amendment. Relyingon Section 117 of the Madhya Pradesh Land Revenue Code (hereinafter A

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Areferred to as the “Code”), it was submitted that there is a presumptionwith regard to the correctness of the Khasra entries regarding possessionof the plaintiff. It therefore establishes the foundation of a claim foradverse possession. At no point of time, the original land owner filedany application for correction under Section 116 of the Code raising anydispute. The finding of the appellate court with regard to manipulationsBin the Khasra entries, no more survive after their exoneration in thedepartmental proceedings and acquittal in the criminal case. The plaintiffwas in continuous uninterrupted possession, for over 12 years, hostile tothe original land owner. The plaintiff was never dispossessed in 1972after any sale. Mere execution of a sale deed does not tantamount toCdispossession. The claim for possession stated to have been reiteratedin 1963-1964 by the original land owner confirms the continuousuninterrupted hostile possession of the plaintiff. Reliance was placed onDagabai Fakirmahomed vs. Sakharam Gavaji & Ors., AIR 1948BOM 149, Wontakal Yalpi Chenabasavana Gowd vs. Rao BahadurY. Mahabaleshwarappa & Ors., AIR 1954 SC 337, M.V.S.DManikayala Rao vs. M. Narasimhaswami & Ors., AIR 1966 SC470, to submit that the onus lay on the defendants to establish that thepossession of the plaintiff was interrupted at any point of time, to defeatthe claim for adverse possession and which they failed to do.

6. We have considered the submissions on behalf of the parties.EThe plaintiff in a suit filed in 1990, asserted possession of the lands forpast 30 years prior to the filing of the suit, relying on the Khasra entriesfor 1960-1961 as the foundation of the claim to adverse possession. Thenature and origin of the claim for possession was absent in the pleadings.

In his evidence the respondent deposed that since the original land ownerFhad failed to return his bullocks and agricultural equipments borrowed in1958-1959, he had taken possession of the lands in 1960-1961. The originalplaintiff expired on 26.05.1994. The respondents, who are his legal heirs,then filed an application on 21.04.1995 to amend the pleadings to bring itin accord with the evidence. If the plaintiff’s possession itself originatedin 1960-1961 it is difficult to appreciate how the Khasra entries in itsGname came to be made in the very same year. Section 115 of the Codeprovides that if the Tehsildar finds that a wrong or incorrect entry hasbeen made in the land records prepared under Section 114 by an officersubordinate to him, he shall direct necessary changes to be made thereinin red ink after making such enquiry from the person concerned as heHmay deem fit after due notice. The plaintiff led no evidence whatsoever when the application for correction in the khasra entry was made andthat the original land owner was heard before the corrections were made.The entries in the name of the purchaser pursuant to the sale deed dated11.10.1972 are in blue ink. The corrections in the khasra entry, the sheetanchor of the respondents claim therefore remains unexplained anddoubtful.

7. At this stage, it is crucial to notice the findings of the appellatecourt that the son and nephew of the Plaintiff-Matadin were working asclerks in the collectorate. They were proceeded against departmentallyand in a criminal prosecution regarding the corrections made in red inkin the Khasra entries incorporating the name of the plaintiff as beingforged and fictitious. The fact that they may have been acquitted in thecriminal prosecution on a benefit of doubt, or that exoneration may havebeen ordered in the departmental proceeding based on proceduralirregularity, are not considered relevant as findings in a civil suit are tobe based on preponderance of probabilities considering the nature ofevidence available.

8. After purchase of the lands by Urmila Devi, her name wasentered in the Khasra as landlord during 1969-1973 along with possessionas also during 1974-1978. Once it is concluded that the red ink entriesregarding corrections in the Khasra showing possession of the plaintiffare suspicious, based on fraud and forgery, the recordings in the nameof the plaintiff are irrelevant. The name of Urmila Devi has also beenshown in the Khasra entries for 1984-89 in blue ink.

9. The conclusion of the first appellate court with regard topossession of the lands being with Urmila Devi after purchase consideredalong with the report of the court commissioner, and who subsequentlysold it to the appellants on basis of a registered sale deed, in our opinioncalled for no interference. The finding that the appellants had admittedthe possession of the plaintiff-respondent on account of the failure ofthe original land owners to return his bullocks and agricultural equipmentsis held to be perverse.

10. The plaintiff claimed adverse possession from 1960-1961. Thelands were sold to Urmila Devi before the expiry of 12 years on 11.10.1972and she was put in possession. The plaintiff’s claim of uninterruptedpossession for twelve years was therefore unsustainable as completelydevoid of substance.

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A11. The High Court in second appeal arrived at a perverse findingon the same evidence that Urmila Devi never acquired possession andthus the plaintiff had established adverse possession after twelve years.The report of the court commissioner also finds no discussion by theHigh Court. It also failed to deal with the suspicious Khasra entries inred ink, claimed by the plaintiff in proof of possession. Likewise, it didBnot consider that the origin of the claim of the plaintiff itself never stoodestablished in absence of necessary pleadings which was sought to beintroduced after the plaintiff’s evidence, as an afterthought.

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12. At this juncture it is necessary to notice that in Civil Suit No.97-A of 1992 filed by the appellants in Civil Appeal No.1091 of 2008,Cand who had purchased the lands adjacent to the suit lands from UrmilaDevi, against Hemraj, the nephew of plaintiff-Matadin, allegingencroachment of the lands purchased by him, the suit was decreed, andthe appeals preferred by Hemraj was dismissed up to this court. Theconclusion of the High court that there was no evidence with regard to Dthe dispossession of the respondent-plaintiff is clearly unsustainable ashe never came into possession in view of the clear finding with regard tofraud and forgery in the Khasra entries.

13. Adverse possession is hostile possession by assertion of a hostiletitle in denial of the title of the true owner as held in M.Venkatesh (supra).EThe respondent had failed to establish peaceful, open and continuouspossession demonstrating a wrongful ouster of the rightful owner. Itthus involved question of facts and law. The onus lay on the respondentto establish when and how he came into possession, the nature of hispossession, the factum of possession known and hostile to the otherparties, continuous possession over 12 years which was open andFundisturbed. The respondent was seeking to deny the rights of the trueowner. The onus therefore lay upon the respondent to establish possessionas a fact coupled with that it was open, hostile and continuous to theknowledge of the true owner. The respondent-plaintiff failed to dischargethe onus. Reference may also be made to Chatti Konati Rao & Ors.Gvs. Palle Venkata Subba Rao, (2010) 14 SCC 316, on adversepossession observing as follows :

“15. Animus possidendi as is well known is a requisite ingredientof adverse possession. Mere possession does not ripen intopossessory title until the possessor holds the property adverse toHthe title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on whichAhe came in possession, nature of possession, the factum ofpossession, knowledge to the true owner, duration of possessionand that possession was open and undisturbed. A person pleadingadverse possession has no equities in his favour as he is trying todefeat the rights of the true owner and, hence, it is for him toBclearly plead and establish all facts necessary to establish adversepossession. The courts always take unkind view towards statutesof limitation overriding property rights. The plea of adversepossession is not a pure question of law but a blended one of factand law.”

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14. In view of our conclusions, the precedents cited by therespondents do not merit consideration. The order of the High Court isheld to be unsustainable and is set aside. The order of the first appellatecourt dated 08.08.1997 is restored and the suit is dismissed.

15. The appeals are allowed.

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Devika Gujral

Appeals allowed.

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