Once the plaintiff proves his title then the defendant has to plead and establish the plea of adverse possession: High Court of Chhattisgarh

1AFRHIGH COURT OF CHHATTISGARH BILASPURSecond Appeal No.411Judgment reserved on: 6 7 2021Judgment delivered on: 13 7 2021Radheshyam Pathakthrough legal representatives(Plaintiff)1A. Smt. Usha Mishra W o Late Shri R.A. Mishra R o Chhoti Koni Bilaspur1B. Smt. Nisha Sharma W o A.P. Sharma R o Ganganagar Bilaspur(C.G.) 1C. Smt. Shandhya Dube W o Shri Roopchandra Dube R o 1008 Kaveri Vihar Jamnipali Korba1F. Smt. Rekha Dwivedi W o Shri R.K. Dwivedi Opp. ITI Koni Bilaspur1G. Shri Prabhat Pathak S o Late Radheshyam Pathak R oDevendra Nagar Phase II Seepat Road Bilaspur1H. Shri Jay Prakash Pathak S o Late Shri Radheshyam Pathak R oNear Baghwa Mandir Purana Sarkanda Bilaspur1I. Shri Vijay Prakash Pathak S o Late Shri Radheshyam Pathak R oNear Baghwa Mandir Purana Sarkanda Bilaspur1J. Shri Prasun Pathak S o Late Shri Radheshyam Pathak R o NearBaghwa Mandir Purana Sarkanda BilaspurAppellantsVersus1.Kanhaiyaa Gond S o Late Mahesh Gond Aged about 32 years 2.Nandlal Gond S o Late Mahesh Gond Aged about 26 years 3.Smt. Beha Bai W o Late Mahesh Gond Aged about 60 years All three R o Village Ghutku Tahsil Takhatpur District Bilaspur(Defendants) Respondents 2 For Appellants:Mr. Arvind Shrivastava Advocate. For Respondents:Mr. Ravindra Agrawal Advocate. Hon ble Shri Justice Sanjay K. AgrawalC.A.V. Judgment1.Proceedings of this matter have been taken up through videoconferencing.2.This second appeal preferred by the plaintiff appellants hereinwas admitted for hearing on 29 11 2013 by formulatingthe following substantial questions of law: “1.Whether the first appellate Court was justified inreversing the finding of the trial Court on the basis of thedefendants perfecting their right by adverse possession 2.Whether the case of the plaintiffs was establishedbefore the trial Court through the power of attorney holder was proper or not ”(For the sake of convenience parties hereinafter will be referredas per their status shown and ranking given in the plaint before thetrial Court.)3.Plaintiff Radheshyam Pathak filed suit through power of attorney VijayPrakash Pathak for recovery of possession based on title stating interalia that the suit house was purchased by the plaintiff on 27 11 1976from Shesh Narayan Lal Agrawal and obtained possession of the suitland and immediately thereafter it was given on license to MaheshGond father of defendants No.1 & 2. The defendants are sons andwidow of Mahesh Gond. In the year 1990 license was terminated andthe suit house was sought to be vacated by serving notice dated 3 9 2007 which has not been vacated leading to filing of suit for decree forrecovery of possession of the suit house. The defendants filed writtenstatement stating inter alia that they are in possession for long timeuninterruptedly and without interference and Shesh Narayan Agrawal 3has no right to alienate the suit property in favour of the plaintiff theyare not licensee and the plaintiff’s suit is barred by limitation. 4.The trial Court after appreciating oral and documentary evidenceavailable on record decreed the suit in favour of the plaintiff which wasappealed by the defendants before the first appellate Court and thefirst appellate Court reversed the decree of the trial Court anddismissed the suit which has been called in question by the plaintiff inthis second appeal in which substantial questions of law have beenformulated and which have been set out in the opening paragraph ofthis judgment for the sake of completeness. 5.Mr. Arvind Shrivastava learned counsel appearing for the appellantsherein LRs of the plaintiff would submit as under: 1.The trial Court and the first appellate Court both haveconcurrently held the plaintiff to be the title holder of the suithouse therefore since the defendants have not pleaded andestablished their plea of adverse possession decree forpossession passed by the trial Court could not have beeninterfered and reversed by the first appellate Court.2.In view of Article 65 of the Limitation Act 1963 once title isproved by the plaintiff in a suit for possession based on title it isfor the defendant who has to plead and prove the plea ofadverse possession and suit cannot be dismissed holding itbarred by limitation unless the defendant pleads andestablishes the plea of adverse possession. 3.The finding of the first appellate Court that Mahesh Gond andthereafter the defendants are not licensee of the plaintiff isperverse and even otherwise has no adverse bearing to the 4decree passed by the trial Court. Once the title of the plaintiff isproved non examination of the original plaintiff has no bearingin view of the finding recorded by the first appellate Court thatthe plaintiff is title holder of the suit house. As such theimpugned decree be set aside and that of the trial Court berestored. 4.The defendants have taken the plea of title and adversepossession both which cannot dwell together in view of thedecision of this Court in S.A.No.112 2004decided on 15 10 2019. 6.Mr. Ravindra Agrawal learned counsel appearing for the respondentsherein defendants would support the judgment & decree of the firstappellate Court and submit that the plaintiff was required to prove histitle over the suit land in view the decision rendered by the M.P. HighCourt in the matter of Daryasingh Harisingh and another v. KalmaNihala1. He would further submit that non examination of the plaintiffis fatal in view of the decision rendered by the Supreme Court in thematter of Mohinder Kaur v. Sant Paul Singh2.7.I have heard learned counsel for the parties and considered their rivalsubmissions made herein above and also went through the recordwith utmost circumspection.8.Article 65 of the Limitation Act 1963 states as under: Description of suitPeriod oflimitationTime from whichperiod begins to run65.For possession of immovableproperty or any interest thereinbased on title.Explanation.—For theTwelveyearsWhen the possessionof the defendantbecomes adverse tothe plaintiff.1AIR 1961 MP 1792(2019) 9 SCC 358 5purposes of this article—(a) where the suit is by aremainderman a reversioner(other than a landlord) or adevisee the possession of thedefendant shall be deemed tobecome adverse only whenthe estate of theremainderman reversioner ordevisee as the case may befalls into possessionwhere the suit is by aHindu or Muslim entitled to thepossession of immovableproperty on the death of aHindu or Muslim female thepossession of the defendantshall be deemed to becomeadverse only when the femaledieswhere the suit is by apurchaser at a sale inexecution of a decree whenthe judgment debtor was outof possession at the date ofthe sale the purchaser shallbe deemed to be arepresentative of thejudgment debtor who was outof possession.9.From a careful perusal of the above stated provision of law it is quitevivid that when the suit is based on title for possession once the titleis established on the basis of relevant document and other evidence unless the defendant proves adverse possession for the prescriptiveperiod the plaintiff cannot be non suited. 10.The Supreme Court in the matter of Saroop Singh v. Banto andothers3 has held that in the light of Article 65 of the Limitation Act 1963 the plaintiffs have to prove their title and it is for the defendantto prove title by adverse possession and in terms of Article 65 of theLimitation Act 1963 starting point of limitation does not commencefrom the date when the right of ownership arises to the plaintiffs but3(2005) 8 SCC 330 6commences from the date the defendant s possession becomesadverse. Paragraphs 28 29 and 30 of the report are as under: “28.The statutory provisions of the Limitation Act haveundergone a change when compared to the terms ofArticles 142 and 144 of the Schedule appended to theLimitation Act 1908 in terms whereof it was imperativeupon the plaintiff not only to prove his title but also to provehis possession within twelve years preceding the date ofinstitution of the suit. However a change in legal positionhas been effected in view of Articles 64 and 65 of theLimitation Act 1963. In the instant case plaintiff respondents have proved their title and thus it was for thefirst defendant to prove acquisition of title by adversepossession. As noticed hereinbefore the first defendant appellant did not raise any plea of adverse possession. Inthat view of the matter the suit was not barred.29.In terms of Article 65 the starting point of limitationdoes not commence from the date when the right ofownership arises to the plaintiff but commences from thedate the defendant s possession becomes adverse. 30.“Animus possidendi” is one of the ingredients ofadverse possession. Unless the person possessing theland has a requisite animus the period for prescription doesnot commence. As in the instant case the appellantcategorically states that his possession is not adverse asthat of true owner the logical corollary is that he did nothave the requisite animus. 3 SCC 3765(2004) 1 SCC 2716(2007) 3 SCC 114 712.Similarly in the matter of C. Natarajan v. Ashim Bai and another7 the Supreme Court has held that in a suit governed by Article 65 of theLimitation Act 1963 the plaintiff would succeed if he proves his titleand it would be for the defendant to plead and establish his title byadverse possession. It was observed as under: “15.The law of limitation relating to the suit forpossession has undergone a drastic change. In terms ofArticles 142 and 144 of the Limitation Act 1908 it wasobligatory on the part of the plaintiff to aver and plead thathe not only has title over the property but also has been inpossession of the same for a period of more than 12 years.However if the plaintiff has filed the suit claiming title overthe suit property in terms of Articles 64 and 65 of theLimitation Act 1963 burden would be on the defendant toprove that he has acquired title by adverse possession. 16.In Md. Mohammad Aliby LRs. v. JagdishKalita and Ors.1 SCC 271] it was held : “By reason of the Limitation Act 1963 the legalposition as was obtaining under the old Act underwenta change. In a suit governed by Article 65 of the 1963Limitation Act the plaintiff will succeed if he proves histitle and it would no longer be necessary for him toprove unlike in a suit governed by Articles 142 and144 of the Limitation Act 1908 that he was inpossession within 12 years preceding the filing of thesuit. On the contrary it would be for the defendant soto prove if he wants to defeat the plaintiffs claim toestablish his title by adverse possession”. {See also P.T. Munichikkanna Reddy & Ors. v. Revamma &Ors.6 SCC 29] Binapani Paul v. Pratima Ghosh &Ors.6 SCC 100] Kamakshi Builders v. AmbedkarEducational Society & Ors.andBakhtiyar Hussaithrough LRs v. Hafiz Khan & Ors.[CA Nos.497 498 01 decided on 24.09.2007]}.”13.Thus the legal position as stands today is that in a suit governed byArticle 65 of the Limitation Act it is for the plaintiff to aver plead andestablish his her title over the suit land and it would not be obligatoryfor him to prove that he was in possession within 12 years preceding7AIR 2008 SC 363 8the filing of suit and rather it is for the defendant to plead andestablish the plea of adverse possession to non suit the plaintiff. 14.Reverting to the facts of the present case in the light of the aforesaidlegal position it is quite vivid that the trial Court has held that theplaintiff is the title holder of the suit land and finding the defendants tobe the licensee granted decree for delivery of possession in favour ofthe plaintiff which was set aside by the first appellate Court in theappeal preferred by the defendants. Though the first appellate Courtin para 15 of its judgment held that the plaintiff is registered owner ofthe suit land and defendants are not licensee but further held that theplaintiff’s suit for possession based on title is barred by limitation asthe suit ought to have been preferred within 12 years from the date ofexecution of sale deed and consequently allowed the appeal and setaside the decree granted in favour of the plaintiff. 15.The plaintiff s suit was for recovery of possession based on title andthe plaintiff has proved his title as held by the trial Court and dulyaffirmed by the first appellate Court. According to Article 65 of theLimitation Act 1963 as noticed herein above once the plaintiff proveshis title then the defendant has to plead and establish the plea ofadverse possession but in this case the defendants have assertedthat they are title holders and in case they are not found to be titleholders they have perfected their title by way of adverse possession.Plea of title and adverse possession both are mutually destructiveplea and inconsistent as well. Therefore the defendants cannot bepermitted to raise mutually destructive plea. However since theplaintiff has claimed and proved his title over the suit house as held byboth the Courts below it was incumbent on the part of the defendants 9to plead and establish the plea of adverse possession which theyhave neither seriously pleaded nor established. 16.The first appellate Court without noticing the provisions contained inArticle 65 of the Limitation Act 1963 came to a wholly erroneousfinding that suit ought to have been filed within 12 years from 26 11 1976i.e. the date when the sale deed was executed by theerstwhile seller in favour of the plaintiff. Once the plaintiff has provedtitle over the suit land it was for the defendants to plead and establishthe plea of adverse possession which they have halfheartedly takenand did not plead the essential ingredients of adverse possession thatare nec vi nec clam nec precario and failed to establish the same yet the first appellate Court held that the suit is barred by limitation. 17.In the considered opinion of this Court the plaintiff having pleadedand proved title over the suit house as held by both the Courts belowby virtue of Article 65 of the Limitation Act 1963 the defendants arerequired to plead and establish adverse possession which they haveneither pleaded expressly nor proved to the satisfaction of the Courtand thus the suit could not have been held to be barred by limitationby the first appellate Court. The first appellate Court has failed tonotice that the law of limitation relating to the suit for possession hasundergone a drastic change and Article 65 of the Limitation Act 1963is differently worded than Articles 142 & 144 of the Limitation Act 1908 and in Articles 142 & 144 of the Limitation Act 1908 the plaintiffwas required to show that he was in possession within 12 yearspreceding the filing of the suit and it has changed by introduction ofArticle 65 of the Limitation Act 1963. However non examination of theplaintiff is no adverse bearing as two Courts below have already heldthat the plaintiff is title holder of the suit land and as such the 10judgment cited on this point by learned counsel for therespondents defendant is clearly inapplicable. The substantialquestions of law are answered accordingly. 18.As a fallout and consequence of the aforesaid discussion judgmentand decree passed by the first appellate Court are hereby set asideand that of the trial Court are restored. The second appeal is allowedto the extent indicated herein above. No order as to cost(s). Appellatedecree be drawn up accordingly. Sd JudgeSoma 

Summary: Any suit governed by Article 65 of the Limitation Act, 1963, is for the plaintiff to aver, plead and establish his / her title over the suit land and it would not be obligatory for him to prove that he was in possession within 12 years preceding he filing of suit, and rather it is for the defendant to plead and establish the plea of adverse possession to non-suit the plaintiff. This was held by the Hon’ble Justice Shri Justice Sanjay K. Agrawal in the case of Radheshyam Pathak (dead) through legal representatives Vs. Kanhaiyaa Gond and ors. [Second Appeal No.49 of 2011] on the 13th of July before the Hon’ble High Court of Chhattisgarh at Bilaspur. The brief facts of the case are, Plaintiff Radheshyam Pathak filed suit through power of attorney Vijay Prakash Pathak, for recovery of possession based on title stating inter alia that the suit house was purchased by the plaintiff on 27-11-1976 from Shesh Narayan Lal Agrawal and obtained possession of the suit land and immediately thereafter, it was given on license to Mahesh Gond – father of defendants No.1 &amp; 2. The defendants are sons and widow of Mahesh Gond. In the year 1990, license was terminated and the suit house was sought to be vacated by serving notice dated 3-9- 2007 which has not been vacated leading to filing of suit for decree for recovery of possession of the suit house. The defendants filed written statement stating inter alia that they are in possession for long time uninterruptedly and without interference and Shesh Narayan Agrawal has no right to alienate the suit property in favour of the plaintiff, they are not licensee and the plaintiff’s suit is barred by limitation. The trial Court after appreciating oral and documentary evidence available on record decreed the suit in favour of the plaintiff which was appealed by the defendants before the first appellate Court and the first appellate Court reversed the decree of the trial Court and dismissed the suit which has been called in question by the plaintiff in this second appeal before the hon’ble High Court. The learned counsel for the appellants submits that, he trial Court and the first appellate Court, both, have concurrently held the plaintiff to be the title holder of the suit house, therefore, since the defendants have not pleaded and established their plea of adverse possession, decree for possession passed by the trial Court could not have been interfered and reversed by the first appellate Court. He further submitted that, asper Article 65 of the Limitation Act, 1963 once title is proved by the plaintiff in a suit for possession based on title, it is for the defendant who has to plead and prove the plea of adverse possession and suit cannot be dismissed holding it barred by limitation, unless the defendant pleads and establishes the plea of adverse possession. Furthermore, The defendants have taken the plea of title and adverse possession, both, which cannot dwell together in view of the decision of this Court. Thus, he impugned decree be set-aside and that of the trial Court be restored. The counsel for the respondents submitted that, plaintiff was required to prove his title over the suit land. He also submitted that, non-examination of the plaintiff is fatal. The learned judge heard the submissions of both the parties and analysed the case in light of Article 65 of the Limitation act. Asper this act, is quite vivid that when the suit is based on title for possession, once the title is established on the basis of relevant document and other evidence, unless the defendant proves adverse possession for the prescriptive period, the plaintiff cannot be non-suited. The court relied on the judgement in Saroop Singh v. Banto and others (2005) 8 SCC 330 wherein, the supreme court held that, “in the light of Article 65 of the Limitation Act, 1963, the plaintiffs have to prove their title and it is for the defendant to prove title by adverse possession and in terms of Article 65 of the Limitation Act, 1963 starting point of limitation does not commence from the date when the right of ownership arises to the plaintiffs, but commences from the date the defendant’s possession becomes adverse.” In C. Natarajan v. Ashim Bai and another [AIR 2008 SC 363] the court held that, “By reason of the Limitation Act, 1963 the legal position as was obtaining under the old Act underwent a change. In a suit governed by Article 65 of the 1963 Limitation Act, the plaintiff will succeed if he proves his title and it would no longer be necessary for him to prove, unlike in a suit governed by Articles 142 and 144 of the Limitation Act, 1908, that he was in possession within 12 years preceding the filing of the suit. On the contrary, it would be for the defendant so to prove if he wants to defeat the plaintiffs claim to establish his title by adverse possession”. Applying the rationales in the above mentioned cases, the court set aside the judgement by the first appellate court and reinstated the judgement held by the trial court and decreed that, “The plaintiff’s suit was for recovery of possession based on title and the plaintiff has proved his title as held by the trial Court and duly affirmed by the first appellate Court. According to Article 65 of the Limitation Act, 1963, as noticed herein-above, once the plaintiff proves his title then the defendant has to plead and establish the plea of adverse possession, but in this case, the defendants have asserted that they are title holders and in case they are not found to be title holders, they have perfected their title by way of adverse possession. Plea of title and adverse possession, both, are mutually destructive plea and inconsistent as well. Therefore, the defendants cannot be permitted to raise mutually destructive plea. However, since the plaintiff has claimed and proved his title over the suit house as held by both the Courts below, it was incumbent on the part of the defendants to plead and establish the plea of adverse possession which they have neither seriously pleaded nor established.”