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Deva (Dead) Through Lrs. v. Sajjan Kumar (Dead) By Lrs. .
Factual and Procedural Background
The plaintiff is the admitted owner of land in Survey No. 452. He alleged that while he was away on government service, the sole defendant, Deva (owner of the adjoining Survey No. 453), encroached upon a strip of the plaintiff’s land measuring 70′ × 20′ in July 1966. The plaintiff instituted a suit for possession on 18-12-1972.
The trial court dismissed the suit, finding it barred by limitation on the basis that the defendant had been in possession since 1940 (Samvat 1996). The first appellate court affirmed that dismissal. In second appeal, however, the High Court of Madhya Pradesh reversed both courts, relying on the defendant’s own testimony admitting that he learned of any encroachment only after the suit was filed. The present appeal challenges that High Court decision.
Legal Issues Presented
- Whether, under Section 100 of the Code of Civil Procedure, the High Court was entitled to interfere with concurrent findings of fact that the defendant had acquired title by adverse possession.
- Whether the defendant’s admission that he became aware of the encroachment only after the suit was filed negated his plea of adverse possession and consequently the bar of limitation under Article 65 of the Limitation Act, 1963.
Arguments of the Parties
Appellants (Legal Representatives of Deceased Defendant Deva)
- Contended that the High Court exceeded its jurisdiction under Section 100 CPC by overturning concurrent factual findings of the two courts below.
Respondent (Plaintiff)
- Argued that an important piece of evidence—the defendant’s admission in the witness box—had been overlooked by the lower courts, justifying interference in second appeal.
- Maintained that the admission proved the defendant lacked the requisite animus for adverse possession for 12 continuous years, so the suit was not time-barred.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court requisitioned the original trial-court record to scrutinize the defendant’s deposition. The relevant excerpt showed the defendant unequivocally stated that he discovered the alleged encroachment only after the present suit was instituted. From this, the Court reasoned as follows:
- The defendant’s own testimony contradicts his claim of hostile possession since 1940; without awareness that the land belonged to the plaintiff, he could not possess it with the necessary adverse animus.
- Mere long occupation is insufficient; adverse possession requires both factual possession and the intention to hold the land against the true owner. That intention could arise, at the earliest, when the defendant learned his possession was wrongful, which was after suit filing.
- Consequently, the statutory period under Article 65 never elapsed; the plaintiff’s title was never extinguished.
- Because the lower courts ignored this decisive admission, their concurrent findings were vitiated by a substantial error of law, permitting interference under Section 100 CPC.
- The High Court therefore rightly decreed possession to the plaintiff, and no ground existed to disturb that decree.
Holding and Implications
APPEAL DISMISSED. The decree for delivery of possession in favour of the plaintiff stands affirmed; the parties were left to bear their own costs.
The decision reaffirms that an admission undermining the requisite hostile intent can defeat a plea of adverse possession, and that a High Court may interfere in second appeal where lower courts have ignored such crucial evidence. No new precedent was expressly created, but the ruling clarifies the evidentiary threshold for adverse possession claims.
D.M Dharmadhikari, J.— By the judgment impugned in this appeal, the High Court of Madhya Pradesh in Second Appeal No. 518 of 1978 under Section 100 of the Code of Civil Procedure has reversed the concurrent findings in the judgments of the two courts below and decreed the suit filed by the plaintiff (respondent herein) for delivery of possession of suit land to the extent of 70′ × 20′ in Survey No. 452. The land in Survey No. 452 has been found by all the courts to be of the ownership of the plaintiff. The land is alleged to have been encroached upon by deceased Deva, the sole defendant, who is succeeded by his legal representatives as appellants in this appeal. Deva was the owner and in possession of the adjoining land in Survey No. 453.
2. The plaintiff's case is that while he was out of the village in the course of his duties being in government service, the defendant Deva encroached upon the suit land in July 1966. The suit of possession was instituted on 18-12-1972.
3. The trial court dismissed the suit as barred by limitation on a finding that the defendant is in possession of the encroached land since Samvat 1996 i.e the year 1940.
4. The first appellate court confirmed the above finding of the trial court and upheld the dismissal of the suit on the ground of limitation.
5. The High Court in second appeal has reversed the judgments of the two courts below by relying on the defendant's own admission in the witness box that he came to know of his alleged encroachment of land in Survey No. 452 belonging to the ownership of the plaintiff only after filing of the suit. The High Court, therefore, came to the conclusion that on this admission of the defendant, he could not be held to have prescribed title by adverse possession.
6. The learned counsel appearing for the appellant in this appeal, questions the jurisdiction of the High Court in second appeal under Section 100 of the Code of Civil Procedure to interfere with the concurrent findings of fact of two courts below it.
7. The learned Senior Counsel appearing for the respondent-plaintiff supported the judgment of the High Court. It is submitted that since a very important piece of evidence in the nature of admission of the defendant had been overlooked by the courts below and thus the suit was wrongly dismissed on the ground of limitation, there was full justification for the High Court in second appeal to reverse the judgments of the courts below.
8. Since a doubt arose with regard to the content and effect of the alleged admission of the defendant in the witness box, we directed the parties to supply translated copies of the depositions of the witnesses recorded in the trial court. The necessary copies of the depositions were not available with the counsel. We have, therefore, requisitioned the record of the trial court. On looking into the record, we find that the High Court was right in interfering with the judgments of the courts below on the basis of admission contained in the statement of the defendant. It clearly negatives his case of being in adverse possession of the encroached portion of the land from the year 1940. The relevant part of the admission in the statement of the defendant Deva (SDW 6) (rendered in English) reads as under:
“The land measuring 70′ × 20′ of Survey No. 453 of Sajjan Kumar is in my possession since last 10 to 12 years, Sajjan Kumar is out of village in service but he keeps on coming off and on. It is wrong that 10 years back, I raised a compound and encroached on the suit land. On the contrary, the suit land is in my possession right from the beginning. After filing of this suit, it came to my knowledge that I am in possession of two biswas of land of Survey No. 453. Before filing of this suit, patwari and others had come to the land for measurement and they told me that on land in Survey No. 453, your possession has been found. Then I told them that I am in possession since beginning.”
9. In the above part of the deposition, the defendant admits that the dispute of encroachment concerning suit portion 70′ × 20′ came to his knowledge only after filing of the suit. The defendant has described suit land 70′ × 20′ to be part of his Survey No. 453. But all the courts have come to a concurrent finding that the suit land to the extent of 70′ × 20′ is part of Survey No. 452 belonging to the plaintiff.
10. From the deposition of the defendant, it appears that he had encircled by a compound suit land 70′ × 20′ by treating it to be a part of his adjoining Survey No. 453.
11. The deposition extracted above, in any case, negatives the defendant's case of having prescribed title by adverse possession from the year 1940. The animus to hold the land adversely to the title of the true owner can be said to have started only when the defendant derived knowledge that his possession over the suit land had been alleged to be an act of encroachment — on the plaintiff's survey number.
12. The abovequoted admission contained in the defendant's deposition, does not make out a case in his favour of having acquired title by adverse possession. Mere long possession of the defendant for a period of more than 12 years without intention to possess the suit land adversely to the title of the plaintiff and to the latter's knowledge cannot result in acquisition of title by the defendant to the encroached suit land.
13. The plaintiff's suit is not merely based on his prior possession and subsequent dispossession but also on the basis of his title to Survey No. 452. The limitation for such a suit is governed by Article 65 of the Limitation Act of 1963. The plaintiff's title over the encroached land could not get extinguished unless the defendant had prescribed title by remaining in adverse possession for a continuous period of 12 years.
14. The High Court, therefore, was right in upsetting the judgments of the two courts below on the question of adverse possession and limitation while granting decree of possession in favour of the plaintiff.
15. Consequently, we find no merit in this appeal and the same is, accordingly, dismissed but in the circumstances without any order as to costs.
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