Adverse Possession: Suit for adverse possession filed by plaintiff-respondent in 1990 on the ground of possession of lands for 30 years prior to filing of the suit relying on the Khasra entries for 1960-1961 as the foundation of the claim – Case of appellants was that the suit lands was sold by the original owners to ‘UD’ by way of sale deed dated 11.10.1972 which was subsequently purchased by appellants; that Khasra entries for 1969-1973 showed ‘UD’ in possession of the lands and that in 1974-1978, the Khasra entries again showed ‘UD’ as the landlord; that Khasra entries for 1960-1961 and 1974-1978 showing possession of the plaintiff were interpolations in red color ink while the entries in name of ‘UD’ after purchase were made in blue color ink – Held: Plaintiffrespondents claimed adverse possession from 1960-1961 – If the plaintiff ’s possession itself originated in 1960-1961, it is difficult to appreciate how the Khasra entries in its name came to be made in the very same year – s.115 of the MP Land Revenue Code provides that if the Tehsildar finds that a wrong or incorrect entry has been made in the land records prepared under s.114 by an officer subordinate to him, he shall direct necessary changes to be made therein in red ink after making such enquiry from the person concerned – Plaintiff led no evidence whatsoever when the application for correction in the khasra entry was made and that the original land owner was heard before the corrections were made – Khasra entries in red ink, claimed by the plaintiff in proof of possession remained unexplained and doubtful – After purchase of the lands by ‘UD’, her name was entered in the Khasra as landlord during 1969-1973 along with possession as also during 1974-1978 – Once it is concluded that the red ink entries regarding corrections in the Khasra showing possession of the plaintiff were suspicious, based on fraud and forgery, the recordings in the name of the plaintiff were irrelevant – The name of ‘UD’ was also shown in the Khasra entries for 1984-1989 in blue ink – Therefore, conclusion of the first appellate court with regard to possession of the lands being with ‘UD’ after purchase considered along with the report of the court commissioner, and who subsequently sold it to the appellants on basis of a registered sale deed, called for no interference – Also, the suit land was sold to ‘UD’ before the expiry of 12 years on 11.10.1972 and she was put in possession and, therefore, plaintiff’s claim of uninterrupted possession for 12 years was unsustainable as completely devoid of substance – Plaintiff failed to establish peaceful, open and continuous possession demonstrating a wrongful ouster of the rightful owner – The onus lay on the plaintiff to establish when and how he came into possession, the nature of his possession, the factum of possession known and hostile to the other parties, continuous possession over
12 years which was open and undisturbed – Plaintiff failed to discharge the onus – The order of the High Court is held to be unsustainable and is set aside.
Allowing the appeals, the Court
HELD: 1. The plaintiff in a suit filed in 1990, asserted possession of the lands for past 30 years prior to the filing of the suit, relying on the Khasra entries for 1960-1961. The nature and origin of the claim for possession was absent in the pleadings. In his evidence, the respondent deposed that since the original land owner had failed to return his bullocks and agricultural equipments borrowed in 1958-1959, he had taken possession of the lands in 1960-1961. The original plaintiff 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 it in accord with the evidence. If the plaintiff’s possession itself originated in 1960-1961 it is difficult to appreciate how the Khasra entries in its name came to be made in the very same year. Section 115 of the Code provides that if the Tehsildar finds that a wrong or incorrect entry has been made in the land records prepared under Section 114 by an officer subordinate to him, he shall direct necessary changes to be made therein in red ink after making such enquiry from the person concerned as he may deem fit after due notice. The plaintiff led no evidence whatsoever when the application for correction in the khasra entry was made and that the original land owner was heard before the corrections were made. The entries in the name of the purchaser pursuant to the sale deed dated 11.10.1972 are in blue ink. The corrections in the khasra entry, the sheet anchor of the respondents claim therefore remains unexplained and doubtful. At this stage, it is crucial to notice the findings of the appellate court that the son and nephew of the Plaintiff were working as clerks in the collectorate. They were proceeded against departmentally and in a criminal prosecution regarding the corrections made in red ink in the Khasra entries incorporating the name of the plaintiff as being forged and fictitious. The fact that they may have been acquitted in the criminal prosecution on a benefit of doubt, or that exoneration may have been ordered in the departmental proceeding based on procedural irregularity, are not considered relevant as findings in a civil suit are to be based on preponderance of probabilities considering the nature of evidence available. [Paras 6, 7] [970-E-H; 971-A-D]
2. The conclusion of the first appellate court with regard to possession of the lands being with ‘UD’ after purchase considered along with the report of the court commissioner, and who subsequently sold it to the appellants on basis of a registered sale deed, called for no interference. The finding that the appellants had admitted the possession of the plaintiff-respondent on account of the failure of the original land owners to return his bullocks and agricultural equipments is held to be perverse. The plaintiff claimed adverse possession from 1960-1961. The lands were sold to ‘UD’ before the expiry of 12 years on 11.10.1972 and she was put in possession. The plaintiff ’s claim of uninterrupted possession for twelve years was therefore unsustainable as completely devoid of substance. [Paras 9, 10] [971-F-H]
3. Adverse possession is hostile possession by assertion of a hostile title in denial of the title of the true owner. The respondent had failed to establish peaceful, open and continuous possession demonstrating a wrongful ouster of the rightful owner. It thus involved question of facts and law. The onus lay on the respondent to establish when and how he came into possession, the nature of his possession, the factum of possession known and hostile to the other parties, continuous possession over 12 years which was open and undisturbed. The respondent-plaintiff failed to discharge the onus. The order of the High Court is held to be unsustainable and is set aside. The order of the first appellate court is restored and the suit is dismissed. [Paras 13, 14] [972-E-G; 973-C]
M. Venkatesh & Ors. v. Bangalore Development
Authority & Ors. (2015) 17 SCC 1 : [2015] 11 SCR
454 ; Chhatti Konati Rao & Ors. v. Palle Venkata Subba Rao (2010) 14 SCC 316 : [2010] 15 SCR 923
– relied on.
Dagabai Fakirmahomed v. Sakharam Gavaji & Ors., AIR 1948 BOM 149 ; Wontakal Yalpi Chenabasavana Gowd 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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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