Adverse Possession 'In Continuity' Against Defendants Not Proved, MP High Court Dismisses Second Appeal From Suit For Declaration Of Title

The single-judge bench of Justice Hirdesh observed that a person who intends to claim that his title has been perfected by adverse possession must prove three 'necks', i.e., - nec vi, nec clam and nec precario.

“…. In other words, he must show that his possession is adequate in continuity in publicity and in extent. Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found”, the bench sitting at Indore further noted.

Relying on Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors. (2019), the court iterated that a person claiming title by adverse possession can maintain a suit for restoration/protection of possession in case of dispossession/attempt of dispossession under Article 65 of the Limitation Act. This is squarely applicable in instances where the defendant's title has been extinguished by virtue of the plaintiff remaining in adverse possession over the suit land.

“…In Article 65 in the opening part a suit “for possession of immovable property or any interest therein based on title” has been used. Expression “title” would include the title acquired by the plaintiff by way of adverse possession. The title is perfected by adverse possession has been held in a catena of decisions”, the court held.

However, returning to the factual matrix of the case, the court felt that the evidence placed before the lower court by the plaintiff was insufficient to show continuous adverse possession over the suit land with knowledge of the defendants. If the documents produced before the trial court are not conclusive enough to establish adverse possession in continuity, it cannot be said that the plaintiff has perfected title over the suit land, the court opined.

In addition to the ground of adverse possession, though an agreement to sell in favour of the plaintiff dated 20.04.2009, entered with the defendants for a consideration of Rs 1 Lakh was relied upon, the court did not pay heed to said contention. Referring to Section 54 of the Transfer of Property Act, the court pointed out that a sale in case of a tangible immovable property worth over Rs 100 must be made in a specific format; it can only be by way of a deed of conveyance (duly stamped and registered as required by law).

“…In the present case, the appellant has failed to prove that he had done some act in furtherance of some contract and he was willing to perform his part of the contract. So, in the considered opinion of this Court, lack of these ingredients the appellant/plaintiff has no right to protect his possession by way of agreement”, the court accordingly concluded in the order.

The court also mentioned that powers under Section 100 of CPC [Second Appeal] can be invoked to interfere with findings of fact only in situations where the same is perverse and based on no evidence. The High Court can dispose of appeals without framing the substantial questions of law at the admission stage itself as laid down in Hari Narayan Bansal v. Dada Dev Mandir Prabandhak Sabha (Barah Gaon) Patam (2015), the court added.

Advocate Yash Pal Rathore appeared for the petitioner. DGA Anand Bhatt appeared for the respondent state.

Case Title: Babulal v. Amra & Ors.

Case No: Second Appeal No. 434 of 2020

Citation: 2024 LiveLaw (MP) 35

Click Here To Read/ Download Order