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Sultan Khan v. State Of Madhya Pradesh
Judgment Summary — Gulab C. Gupta, J.
Factual and Procedural Background
The plaintiff (appellant) filed the suit on 13-12-1974 seeking a declaration of title over 10 acres (Khasra No. 202/1) at village Mundla Kalan, Sehore, claiming ownership by long continuous possession since about 1944 (Fasli Year 1351), possession being recorded in revenue records. The appellant asserted that his father, Jugge Khan, had cultivated and possessed the land and that on his father's death the land came into the appellant's possession.
The Sub-Divisional Officer, Sehore declared the suit land as service land and issued a Patta in favour of respondent No. 2 by order dated 10-8-1972. Thereafter Naib Tahsildar initiated eviction proceedings against the appellant under Section 248 of the M.P. Land Revenue Code. The appellant's appeal to the Collector, Sehore was dismissed. The appellant sought declaration that he had perfected title by adverse possession for over the statutory period of 30 years and challenged the Patta and eviction proceedings as illegal.
The State (respondent) contested, denying that the appellant became owner by adverse possession, alleging that the appellant and his father were trespassers and had been proceeded against; they also alleged payment of fine by the appellant for illegal occupation.
The trial court found that it was not proved that the appellant and his father were in continuous adverse possession of the whole suit land for about four decades, although it found occupation of a part of the land since 1944; it held that eviction proceedings in 1972 prevented perfection of title by adverse possession and dismissed the suit. The lower appellate court affirmed that decision. The plaintiff filed this second appeal under Section 100 CPC. The High Court admitted the appeal for final hearing and framed a substantial question concerning perfection of title by adverse possession since 1944.
Legal Issues Presented
- Whether, on the facts and circumstances of the case, the plaintiff (appellant) perfected his title by adverse possession against the State, being in adverse possession of the land since Fasli Year 1351 (1944 A.D.) as recorded in the revenue papers?
Arguments of the Parties
Appellant's Arguments
- The appellant submitted he was in continuous possession of the suit land up to the date of the suit and thereafter as per court order, and that possession as owner for more than 30 years entitled him to a declaration of title by adverse possession.
- It was specifically argued that eviction proceedings under Section 248 of the M.P. Land Revenue Code or the allotment order in favour of respondent No. 2 would not interrupt his possession or the adverse possession.
- Reliance was placed on the decisions: Fatima Bibi v. Hajee Muhammad (AIR 1943 Mad. 425); D. G. Nidhi v. K. L. Chettiar (AIR 1939 Mad. 456); and Shri Damodar v. Hema Narayan (AIR 1969 Ori. 54) to support the proposition that mere declaration or allotment without forcible dispossession does not interrupt adverse possession.
Respondent-State's Arguments
- The State contested the appellant's claim, denying that the appellant had become owner by adverse possession.
- The State asserted that Jugge Khan and the appellant were trespassers, had been proceeded against from time to time, and that the appellant had paid a fine for illegal occupation—facts relied on to deny perfection of title by adverse possession.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Fatima Bibi v. Hajee Muhammad, AIR 1943 Mad. 425 | Cited by appellant for the proposition that mere declaration of title without actual dispossession/recovery does not interrupt the possession of the plaintiff/defendant in possession. | The Court noted this Madras decision was relied upon by the appellant but observed these decisions did not precisely address whether formal proceedings (like Section 248) interrupt adverse possession; they therefore did not control the result in this case. |
| D. G. Nidhi v. K. L. Chettiar, AIR 1939 Mad. 456 | Cited by appellant to support the view that decree or declaration without steps to recover possession does not interrupt adverse possession. | The Court observed that, like other Madras decisions relied upon, this case did not exactly deal with the specific point whether initiation of statutory recovery proceedings (Section 248) arrests adverse possession. |
| Shri Damodar v. Hema Narayan, AIR 1969 Ori. 54 | Relied on by appellant for the broader proposition that adverse possession continues so long as physical possession is not disturbed, even during pendency of proceedings for recovery. | The Court criticized this decision as lacking discussion of the point and noted that it had been reconsidered and overruled by a later Orissa Division Bench (Artabandhu v. Bisweswar). The Court held Shri Damodar was wrongly decided and insufficient to support the appellant's case. |
| Sultan Jehan Begum v. Gul Mohd., 1972 MPLJ 969 = AIR 1973 M.P. 72 | Set out the following principles (summarised by the Court): (1) if person entitled to possession does not sue within prescribed time his right is extinguished; (2) institution of suit within limitation arrests adverse possession; (3) decree for possession relates back to date of suit; (4) Section 28 Limitation Act only declares extinguishment and does not itself confer title; (5) "perfected title" means practical effect that person out of possession cannot recover once time has run and suit not filed. | The Court applied these principles, holding that initiation of a suit (and by parity, proceedings under Section 248 of the Code) arrests adverse possession. Using this authority, the Court held adverse possession of the appellant was interrupted when Section 248 proceedings were initiated on 11-8-1972 and therefore he had not completed 30 years before that date. |
| Artabandhu v. Bisweswar, AIR 1979 Ori. 110 | Reconsidered Shri Damodar and overruled it; approved the view of Sultan Jehan Begum that institution of proceedings arrests adverse possession. | The Court relied on this decision to hold that Shri Damodar was overruled and to reinforce the conclusion that adverse possession is arrested by initiation of proceedings (here, Section 248 proceedings), supporting the dismissal of the appellant's claim. |
Court's Reasoning and Analysis
The Court proceeded in the following analytical steps, following only the reasoning contained in the opinion:
- The Court accepted the concurrent factual finding of the two courts below — based on revenue records submitted by both parties — that the appellant and his father had been in occupation of a part of the suit land since 1944. This concurrent finding was treated as binding and reliable.
- The pivotal legal question identified was whether the appellant's adverse possession was interrupted on 11-8-1972 when proceedings under Section 248 of the M.P. Land Revenue Code were initiated and a Patta was issued in favour of respondent No. 2.
- The Court examined the authorities relied upon by the appellant (Madras High Court decisions and Shri Damodar). It found the Madras decisions did not directly address the effect of initiation of recovery proceedings (as opposed to mere declaration) on adverse possession. Shri Damodar (Orissa) took the view that adverse possession continued unless physical dispossession occurred, but the Court observed that Shri Damodar contained no discussion and ultimately was inconsistent with this Court's prior decision.
- The Court relied on the Division Bench decision in Sultan Jehan Begum v. Gul Mohd., which it summarized in five propositions: (1) the right of the person out of possession is extinguished if he does not bring a suit within the prescribed time; (2) institution of the suit within limitation arrests adverse possession; (3) a decree for possession relates back to the date of the suit; (4) Section 28 of the Limitation Act merely declares extinguishment, not a conferral of title; and (5) "perfected title" by adverse possession is a description of effects rather than a substantive conferral by statute.
- Applying Sultan Jehan Begum, the Court held that the institution of proceedings for recovery of possession arrests the period of adverse possession. The Court reasoned that Section 248 proceedings in the M.P. Land Revenue Code provide an alternative forum for recovery of possession and therefore have the same legal effect as a suit in a civil court for the purpose of interrupting/adjudicating adverse possession.
- Consequently, the Court concluded that adverse possession of the appellant was interrupted and arrested on 11-8-1972 when proceedings under Section 248 were initiated. Because the appellant had not completed the statutory period of 30 years before that date, his possession, even if adverse up to that date, could not confer title or any right to ownership.
- The Court also dealt with Shri Damodar by noting it was contrary to Sultan Jehan Begum and that the Orissa Division Bench in Artabandhu v. Bisweswar had reconsidered and overruled Shri Damodar, approving Sultan Jehan Begum; hence Shri Damodar could not support the appellant's case.
Holding and Implications
Holding: The appeal fails and is dismissed with costs. Counsel's fee as per rules.
Implications:
- The direct effect is that the appellant's claim for declaration of title by adverse possession over the suit land is rejected: the Court held that adverse possession was arrested by initiation of Section 248 proceedings on 11-8-1972 and the appellant had not completed the required 30 years before that date.
- The Court relied on existing precedents (notably Sultan Jehan Begum and Artabandhu v. Bisweswar) to reach its conclusion; the opinion describes Shri Damodar as wrongly decided and insufficient to support the appellant's position.
- This opinion does not set out any broad new legal principle beyond application of the precedents summarised above; the decision disposes of the appeal and affirms the conclusion of the Courts below.
JUDGMENT Gulab C. Gupta, J.
1. This second appeal, filed by the plaintiff Under Section 100, Civil Procedure Code is directed against the judgment and decree dated 20-10-1982, passed by Addl. Judge to the Court of District Judge, Sehore in Civil Appeal No. 185-A of 1982, arising out of judgment and decree, dated 25-9-1980, passed by the Civil Judge, Class II, Sehore in Civil Suit No. 53-A of 1979, dismissing the appellant's suit for declaration of title over 10 acres of land of Khasra No. 202/1, situated at village Mundla Kalan, Tahsil and District Sehore (hereinafter referred to as the 'suit land').
2. The appellant filed the present suit on 13-12-1974, seeking declaration of his title over the suit land based on his long and continued possession for about 4 decades as owner thereof. His case was that his father Jugge Khan was in cultivating possession of the suit land during his life time and his possession is even recorded in revenue records since 1351 Fasli year i.e. 1944 A.D. Appellant also submitted that his father died about 10 years before and therefore, the suit land came into his possession. According to him, the Sub-Divisional Officer, Sehore declared the suit land as service land and issued a Patta for 7.18 acres in favour of respondent No. 2 by his order, dated 10-8-1972 and thereafter, Naib Tahsildar started eviction g|oceedings against him Under Section 248 of the M. P. Land Revenue Code (hereinafter referred to as 'The Code'). According to him, he felt aggrieved by this order and filed the appeal before the Collector, Sehore which was dismissed. He, therefore, prayed for a declaration that he is the Bhumiswarni of the suit land, that Patta allotment of land in favour of respondent No. 2 was illegal and void and the eviction proceedings were also illegal. The appellant based his claim over the suit land on adverse possession for more than the statuory period of 30 years. The respondent-State contested the claim and denied that the appellant was or has become the owner of the suit lands. According to them Jugge Khan and the appellant were the trespassers, and have been proceeded against from time to time. Their specific case was that the appellant has paid fine for illegal occupation. They, therefore denied the ownership of the appellant based on adverse possession. The learned trial Judge, on the basis of evidence on record, held that it was not proved that the appellant and his father were in continuous adverse possession of the suit land for about 4 decades. The learned Judge, however, held that the appellant and his father were in possession of a part of the suit land since 1944 but since they have been ordered to be evicted in the year 1972, they could not perfect their title by adverse possession. The suit was accordingly dismissed. These findings have been affirmed by the lower appellate Court in appeal and hence this second appeal.
3. This Court while admitting this appeal fr final hearing on 7-2-1983 framed the following substantial question for its consideration : -
"Whether in the facts and circumstances of this case, the plaintiff has perfected his title by adverse possession against the State as he is in adverse possession of the land since the Fasli Year 1351 (1944 A.D.) as recorded in the revenue papers?"
Submission of the learned counsel for the appellant is that he has been in continuous possession of the suit land upto the date of the suit and even thereafter as per order of the Court. Since his possession before the date of the suit has been as owner and for more than 30 years, he would be deemed to be in continuous adverse possession entitling him to the declaration that he has become the owner thereof. Specific submission of the appellant is that eviction procedings Under Section 248 of the Code or the allotment order in favour of the respondent No. 2 would not interrupt his possession or the adverse possession. Reliance is placed on Fatima Bibi v.'Hajee Muhammad, AIR 1943 Mad. 425; D. G. Nidhi v. K. L. Chettiar, AIR 1939 Mad. 456; and Shri Damodar v. Hema Narayan, AIR 1969 Ori. 54.
4. The finding that the appellant is found to be in occupation of a part of suit land since 1944 is the concurrent finding recorded by the two Courts below. This finding is based on revenue records, certified copies of which have been filed by both the parties. Under the circumstances, the finding is not only binding on this Court because it is a concurrent finding of fact but also because it is a good finding of fact. It must, therefore, be accepted that the appellant and before him his father was in occupation of a part of the suit land. It is appellant's own case that by an order, dated 11-8-1972, he has been ordered to be evicted from this land and the same has been allotted in favour of respondent No. 2. In case the appellant's possession is treated to be adverse from 1944, he would have perfected his title over this land on the date of the suit, if this order, dated 11-8-1972 and subsequent proceedings Under Section 248 of the Code have no effect on it. Under the circumstances, the important question for consideration in this appeal is whether the adverse possession of the appellant was interrupted on 11-8-1972 when proceedings Under Section 248 of the Code were started? The decisions of Madras High Court relied upon by the appellant, do not exactly deal with this point. According to these decisions, mere declaration of title of the defendant without any thing done to recover possession does not amount to interruption in possession of the plaintiff. Shri Damodar's case of the Orissa High Court has, however carried this reasoning and logic further and has held that since possession is not disturbed, even the adverse possession will not be treated as disturbed and will continue. There is, however, no discussion in this judgment and therefore nothing to understand why it has been so held. If this conclusion is accepted, a trespasser will be able to perfect his title even during the pendency of the suit for recovery of possession from him. This however, is not the intention of the law. It is well-settled that the status of the parties has to be determined on the basis of facts as they exist on the date of suit. It is true that in the instant case, no suit for recovery of possession was filed but only proceedings Under Section 248 of the Code were initiated. Section 248 of the Code only provides an alternative forum for recovery of possession and therefore, proceedings under this provision will have the same effect as a suit in a regular Civil Court. Since a suit for recovery of possession is sufficient to interrupt the adverse possession, proceedings Under Section 248 of the Code must have the same effect. In Sultan Jehan Begum v. Gul Mohd., 1972 MPLJ 969 = AIR 1973 M.P. 72 a Division Bench of this Court considered in detailthe law on the subject and clarified it as under :-.
"In our view the law is clearly this :
(1) When a person entitled to possession does not bring a suit against the person in adverse possession within the time prescribed by law his right to possession is extinguished. From this it only follows that if the former begins suit against the latter within the prescribed period of limitation his right will not be extinguished.
(2) If a decree for possession is passed in that suit in his favour he will be entitled to possession irrespective of the time spent in the suit and the execution and other proceedings.
(3) The very institution of the suit arrests the period of adverse possession of the defendant and when a decree for possession is passed against the defendant the plaintiff's right to be put in possession relates back to the date of the suit.
(4) Section 28 of the Limitation Act merely declares when the right of the person out of possession is extinguished. It is not correct to say that section confers title on the person who has been in adverse possession for a certain period. There is no law which provides for 'conferral of title' as such on a person who has been in adverse possession for whatever length of time.
(5) When it is said that the person in adverse possession 'has perfected his title', it only means this. Since the person who had the right of possession but allowed his right to be extinguished by his inaction, he cannot obtain the possession from the person in adverse possession, and, as its necessary corollary the person who is in adverse possession against the other not in possession, on the well settled rule of law that possession of one person cannot be disturbed by any person except one who has a better title."
It must, therefore, be accepted that filing of the suit for recovery of possession, by itself, is suficient to arrest the period of adverse possession and a decree for possesssion could be passed irrespective of the time taken in deciding the suit. If this principle is applied to the proceedings Under Section 248 of the Code, it must be held that in case a person has not perfected his title by adverse possession before start of the proceedings, he cannot perfect his title during the pendency of the proceedings. Adverse possession of the person in possession must be deemed to have been arrested by initiation of these proceedings. This Court has, therefore, no hesitation in holding that adverse possession of the appellant was interrupted and arrested on 11-8-1972 when proceedings Under Section 248 of the Code were initiated against him. Since he has not completed 30 years of possession before 11-8-1972, his possession even if adverse cannot confer any right or title on him.
5. Shri Damodar's case (supra) relied on by the learned counsel for the appellant is no doubt capable of supporting the submission that the adverse possession continues in spite of proceedings as long as it is not brought to end by delivery of possession and therefore, the title by adverse possession could be acquired even during the pendency of the suit for possession. This case is however contrary to the decision of this Court in Sultan Jehan Begum's case (supra). Indeed a Division Bench of Orissa High Court in Artabandhu v. Bisweswar, AIR 1979 Ori. 110 reconsidered the matter and overruled Shri Damodar's case (supra) and approved the view of this Court in Sultan Jehan Begum's case (supra). Under the circumstances, the said case must be held to have been decided wrongly and therefore, not sufficient to provide support to the appellant. It is rather unfortunate that the learned counsel for the appellant did not investigate the matter fully and relied on an overruled decision.
6. The appeal fails and is dismissed with costs. Counsel's fee as per rules.
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