Adverse possession cannot be established without proving the essential ingredients, nec vi, nec clam and nec precario: High Court of Chhattisgarh

HIGH COURT OF CHHATTISGARH BILASPUR Second Appeal No.411 Judgment reserved on: 6 7 2021 Judgment delivered on: 13 7 2021 Radheshyam Pathakthrough legal representatives 1A. Smt. Usha Mishra W o Late Shri R.A. Mishra R o Chhoti Koni 1B. Smt. Nisha Sharma W o A.P. Sharma R o Ganganagar Bilaspur 1C. Smt. Shandhya Dube W o Shri Roopchandra Dube R o 1008 Kaveri Vihar Jamnipali KorbaAppellants 1. 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 BilaspurRespondents For Appellants: Mr. Arvind Shrivastava Advocate. For Respondents: Mr. Ravindra Agrawal Advocate Hon ble Shri Justice Sanjay K. Agrawal 1. Proceedings of this matter have been taken up through video 2. This second appeal preferred by the plaintiff appellants hereinwas admitted for hearing on 29 11 2013 by formulating the following substantial questions of law: “1. Whether the first appellate Court was justified in reversing the finding of the trial Court on the basis of the defendants perfecting their right by adverse possession Whether the case of the plaintiffs was established before the trial Court through the power of attorney holder was proper or not ” For the sake of convenience parties hereinafter will be referred as per their status shown and ranking given in the plaint before the 3. 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 & 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. 4. 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 in which substantial questions of law have been formulated and which have been set out in the opening paragraph of this judgment for the sake of completeness. 5. Mr. Arvind Shrivastava learned counsel appearing for the appellants herein LRs of the plaintiff would submit as under: 1. The 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 In view of 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. 3. The finding of the first appellate Court that Mahesh Gond and thereafter the defendants are not licensee of the plaintiff is perverse and even otherwise has no adverse bearing to the decree passed by the trial Court. Once the title of the plaintiff is proved non examination of the original plaintiff has no bearing in view of the finding recorded by the first appellate Court that the plaintiff is title holder of the suit house. As such the impugned decree be set aside and that of the trial Court be restored. 4. The defendants have taken the plea of title and adverse possession both which cannot dwell together in view of the decision of this Court in S.A.No.112 2004decided on 15 10 2019. 6. Mr. Ravindra Agrawal learned counsel appearing for the respondents herein defendants would support the judgment & decree of the first appellate Court and submit that the plaintiff was required to prove his title over the suit land in view the decision rendered by the M.P. High Court in the matter of Daryasingh Harisingh and another v. Kalma Nihala1. He would further submit that non examination of the plaintiff is fatal in view of the decision rendered by the Supreme Court in the matter of Mohinder Kaur v. Sant Paul Singh 2 I have heard learned counsel for the parties and considered their rival submissions made herein above and also went through the record with utmost circumspection 8. Article 65 of the Limitation Act 1963 states as under: Description of suit Time from which period begins to run 65. For possession of immovable property or any interest therein based on title When the possession the defendant becomes adverse to 1 AIR 1961 MP 179 29 SCC 358 purposes of this article— a) where the suit is by a remainderman a reversioner other than a landlord) or a devisee the possession of the defendant shall be deemed to become adverse only when the estate of remainderman reversioner or devisee as the case may be falls into possession b) where the suit is by a Hindu or Muslim entitled to the possession of property on the death of a Hindu or Muslim female the possession of the defendant shall be deemed to become adverse only when the female c) where the suit is by a purchaser at a sale in execution of a decree when the judgment debtor was out of possession at the date of the sale the purchaser shall to be a be deemed judgment debtor who was out 9. From a careful perusal of the above stated provision of law it 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. 10. The Supreme Court in the matter of Saroop Singh v. Banto and others3 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 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 38 SCC 330 commences from the date the defendant s possession becomes adverse. Paragraphs 28 29 and 30 of the report are as under: “28. The statutory provisions of the Limitation Act have undergone a change when compared to the terms of Articles 142 and 144 of the Schedule appended to the Limitation Act 1908 in terms whereof it was imperative upon the plaintiff not only to prove his title but also to prove his possession within twelve years preceding the date of institution of the suit. However a change in legal position has been effected in view of Articles 64 and 65 of the Limitation Act 1963. In the instant case plaintiff respondents have proved their title and thus it was for the first defendant to prove acquisition of title by adverse possession. As noticed hereinbefore the first defendant appellant did not raise any plea of adverse possession. In that view of the matter the suit was not barred In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant s possession becomes adverse. “Animus possidendi” is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case the appellant categorically states that his possession is not adverse as that of true owner the logical corollary is that he did not have the requisite animus. 3 SCC 376 51 SCC 271 63 SCC 114 12. Similarly in the matter of C. Natarajan v. Ashim Bai and another 7 the Supreme Court has held that in a suit governed by Article 65 of the Limitation Act 1963 the plaintiff would succeed if he proves his title and it would be for the defendant to plead and establish his title by adverse possession. It was observed as under: “15. The law of limitation relating to the suit for possession has undergone a drastic change. In terms of Articles 142 and 144 of the Limitation Act 1908 it was obligatory on the part of the plaintiff to aver and plead that he not only has title over the property but also has been in possession of the same for a period of more than 12 years However if the plaintiff has filed the suit claiming title over the suit property in terms of Articles 64 and 65 of the Limitation Act 1963 burden would be on the defendant to prove that he has acquired title by adverse possession. In Md. Mohammad Ali by LRs. v. Jagdish Kalita and Ors.1 SCC 271] it was held : “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”. 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. Ambedkar Educational Society & Ors. and Bakhtiyar 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 by Article 65 of the Limitation Act it 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 7 AIR 2008 SC 363 the filing of suit and rather it is for the defendant to plead and establish the plea of adverse possession to non suit the plaintiff. 14. Reverting to the facts of the present case in the light of the aforesaid legal position it is quite vivid that the trial Court has held that the plaintiff is the title holder of the suit land and finding the defendants to be the licensee granted decree for delivery of possession in favour of the plaintiff which was set aside by the first appellate Court in the appeal preferred by the defendants. Though the first appellate Court in para 15 of its judgment held that the plaintiff is registered owner of the suit land and defendants are not licensee but further held that the plaintiff’s suit for possession based on title is barred by limitation as the suit ought to have been preferred within 12 years from the date of execution of sale deed and consequently allowed the appeal and set aside the decree granted in favour of the plaintiff. 15. 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. 16. The first appellate Court without noticing the provisions contained in Article 65 of the Limitation Act 1963 came to a wholly erroneous finding that suit ought to have been filed within 12 years from 26 11 1976i.e. the date when the sale deed was executed by the erstwhile seller in favour of the plaintiff. Once the plaintiff has proved title over the suit land it was for the defendants to plead and establish the plea of adverse possession which they have halfheartedly taken and did not plead the essential ingredients of adverse possession that are 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 pleaded and proved title over the suit house as held by both the Courts below by virtue of Article 65 of the Limitation Act 1963 the defendants are required to plead and establish adverse possession which they have neither pleaded expressly nor proved to the satisfaction of the Court and thus the suit could not have been held to be barred by limitation by the first appellate Court. The first appellate Court has failed to notice that the law of limitation relating to the suit for possession has undergone a drastic change and Article 65 of the Limitation Act 1963 is differently worded than Articles 142 & 144 of the Limitation Act 1908 and in Articles 142 & 144 of the Limitation Act 1908 the plaintiff was required to show that he was in possession within 12 years preceding the filing of the suit and it has changed by introduction of Article 65 of the Limitation Act 1963. However non examination of the plaintiff is no adverse bearing as two Courts below have already held that the plaintiff is title holder of the suit land and as such the judgment cited on this point by learned counsel for the respondents defendant is clearly inapplicable. The substantial questions of law are answered accordingly. 18. As a fallout and consequence of the aforesaid discussion judgment and decree passed by the first appellate Court are hereby set aside and that of the trial Court are restored. The second appeal is allowed to the extent indicated herein above. No order as to cost(s). Appellate decree be drawn up accordingly Sd Sanjay K. Agrawal) 

Summary: For a person to prove that they has the right over some property through adverse possession, they must fulfil the essential ingredients: (i) nec vi meaning without force, (ii) nec clam meaning without secrecy and (iii) nec precario meaning without permission. This was held in the judgement passed by a single member bench of the High Court of Chhattisgarh consisting of Justice Sanjay Agrawal in the case of Radheshyam Pathak v Kanhaiyaa Gond [Second Appeal No. 49 of 2011] on 13th July 2021. The plaintiff, Radheshyam Pathak purchased some land on 27th November 1976. Since he was not using the land at the time, it was given on licence to Mahesh Gond who is the father of the defendants. 14 years later, in the year 1990, the licence was terminated and the property in question was sought to be vacated by a notice dated 3rd September 2007.  The defendants filed a written statement stating that they have been in possession and earning their livelihood from the land for a very long time uninterruptedly and without any interference. For this reason the defendants believed that the plaintiff had no right to right to alienate the suit property and that the suit was in fact barred by limitation. The trial court decreed the suit in favour of the plaintiff which was appealed by the defendants. The first appellate court reversed the decision of the trial court which has been called into question by the plaintiff in the present in the second appeal. The court noted that as per Article 65 of the Limitation Act 1963, once the plaintiff has proven title over the suit land, it is the responsibility of the defendants to plead and establish adverse possession through the essential ingredients, i.e., nec vi, nec clam and nec precario. The High Court was satisfied with the plaintiff’s establishment of title of the land in question, however it was found that the defendants instead of establishing adverse possession claimed to have been title holders of the land. The court also declared that the suit was not barred by limitation since the defendants had not satisfactorily proven that they were in possession of the suit land for over 12 years before the filing of the suit.