Madhya Pradesh High Court
Banubee And Anr. vs Bondibai (Decd) Thr. Lrs. Babu And 05 … on 21 October, 2024
NEUTRAL CITATION NO. 2024:MPHC-IND:29863 1 FA No.105/2010
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE DUPPALA VENKATA RAMANA
FIRST APPEAL No.105 of 2010
BANUBEE WD/O. GANI AND ANOTHER
...Appellants/Plaintiffs
and
BONDIBAI W/O SULEMAN NAYATA AND OTHERS
...Respondents/Defendants
Reserved on 15.10.2024
Pronounced on 21.10.2024
Appearance:
Shri Jitendra Verma, learned counsel
for the appellants / plaintiffs.
None for respondents No.1 to 4.
Shri Nilesh Agrawal, learned counsel
for respondent / defendant No.5.
Ms.Pranjali Yajurvedi, learned Panel Lawyer
for respondent No.6 / State.
JUDGMENT
Invoking jurisdiction of this Court under Section 96 of CPC, the
appellants/plaintiffs have filed this first appeal calling in question the validity,
legality, propriety and correctness of the judgment and decree dated 16.11.2009
passed by the 21st Additional District Judge, (Fast Track Court), Indore (M.P.) in
Civil Suit No.118A/2009 dismissing the appellants / plaintiffs’ suit filed for
declaration of title by adverse possession and permanent injunction.
Signature Not Verified
Signed by: ANUSHREE
PANDEY
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NEUTRAL CITATION NO. 2024:MPHC-IND:29863 2 FA No.105/2010
02. The necessary facts and legal contentions urged on behalf of parties are stated
herein with a view to find out as to whether the impugned judgment and decree in
dismissing the suit for the relief of declaration on the basis of agreement of sale for
adverse possession and permanent injunction requires to be examined by following
this appeal.
03. In this judgment for the sake of brevity, I would like to refer to the ranking of
the parties as assigned in the plaint presented before the Court. Since there is
congruence in mentioning exhibits in the judgment of the trial Court, I will refer to
the documents as per annexures presented along with this appeal.
04. The facts leading to the present appeal in a nutshell are as under: the appellants
herein – original plaintiffs instituted original suit No.118-A/2009 before the 21st
Additional District Judge, (Fast Track Court), Indore for relief of declaration of title
by virtue of principles of adverse possession on the basis of agreement of sale dated
27.07.1962 and the sale deed dated 07.07.1970 executed by defendants No.1 (Bondi
Bai), 2 (Hajra Bai) and 3 (Nani Bai) and similarly the sale deed executed in favour of
defendant No.5 vide document No.1-A/1852 dated 17.12.2007 is not binding upon
the plaintiffs and the mutation order attested in favour of defendant No.4 by
Tehsildar, Indore in respect of the suit land is not binding on the plaintiffs and further
seeks decree of permanent injunction restraining the defendants / respondents from
dispossessing the plaintiffs from the suit land.
05. It was the case on behalf of the plaintiffs that the suit land in Patwari Halka old
No.26 afterwards No.13 situated at Village Mundala Nayata, Tehsil and District
Indore in the name of defendants No.1 to 4 in the year 1960-61. Further stated that
the survey No.202 Rakba 0.664 hectares has purchased by the ancestors of plaintiff
No.1 and survey No.201/2 Rakba 1.125 hectares was purchased by the ancestors of
the plaintiff No.2 from defendants No.1 to 4 by paying the sale consideration amount
and possession was obtained, but a registered sale deed was not executed, ever since,
the plaintiffs are in possession of the suit land without any obstruction and they are
Signature Not Verified
Signed by: ANUSHREE
PANDEY
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NEUTRAL CITATION NO. 2024:MPHC-IND:29863 3 FA No.105/2010
having rights on the principles of adverse possession.
06. At the relevant point of time, the plaintiffs recorded them as land owners and
registration of sale deed could not be given, though, the consideration amount was
paid to them. Further stated that since 1956, the forefathers of the plaintiffs are in the
possession of the subject land. Further stated that on 27.07.1962, Rahmat / defendant
No.4 executed an agreement of sale in favour of plaintiffs by receiving a sale
consideration to the subject land and sold 05 bighas of land out of survey Nos.201/2
and 202 and property was delivered. Further stated that after the death of defendants
No.1 (Bondi Bai), 2 (Hajra Bai) and 3 (Nani Bai), without informing them, registered
sale deed was executed in respect of suit land in favour of defendant No.3-A to D and
deceased Gata S/o Champalal on 07.07.1970 vide document No.1A/4636, whereas
the plaintiffs have remained in possession of suit land.
07. After coming to know about the same, the plaintiffs filed an application before
Tehsildar making entry in the record that they were in possession of the suit land.
After thorough inquiry on the basis of evidence, the Tehsildar made an entry in regard
to the possession of plaintiffs on the suit land dated 30.08.2003 and thereafter,
defendant No.3-A to D without having a right appointed one Mr.Satish S/o Ramgopal
as a General Power of Attorney in respect of suit land vide registered document No.4-
A/530 dated 19.09.2007. The said GPA holder sold out the suit land to defendant
No.5 by virtue of sale deed vide document No.1-A/1852 dated 17.12.2007 by that
time, plaintiffs having in continuous possession of the suit land.
08. When the plaintiffs came to know about the transactions in selling property in
favour of defendant No.5, issued a written notice and publication in newspaper
“Dainik Agniban” through their Advocate and the sale transaction between defendant
No.3-A to D, GPA and defendant No.5 is not binding on the plaintiffs. Defendant
No.5 does not acquire any title or right over the suit land by virtue of such illegal sale
deeds. Thereafter, the Tehsildar, Indore passed an ex parte order to attest the mutation
in respect of the suit land in favour of defendant No.5 on 13.02.2008 in case
Signature Not Verified
Signed by: ANUSHREE
PANDEY
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NEUTRAL CITATION NO. 2024:MPHC-IND:29863 4 FA No.105/2010
No.78/A-6/2007-08 and the plaintiffs made a complaint before the Collector on
25.03.2008 and filed an appeal before Sub Divisional Officer and after attestation of
mutation in favour of defendant No.5 in respect of suit land, defendant No.5 filed an
application before the Tehsildar under Section 250 of MPLR Code handing over the
possession of suit land in which defendant No.5 stated that the plaintiffs are in
possession of the suit land, therefore, defendants No.1 to 5 or their pre-beneficiaries
have no right to sell the suit land and the said sale deeds executed in respect of the
suit land by them is not binding upon the plaintiffs and prayed for declaration that the
plaintiffs have acquired the title in respect of suit land on the basis of adverse
possession and registered sale deed No.1-A/4636 dated 07.07.1970 is not binding on
the plaintiffs and the mutation attested in favour defendant No.5 not binding upon the
plaintiffs and to grant permanent injunction restraining the respondents / defendants
from dispossessing them from the suit land.
09. Further stated that defendant No.5 got mutation in his favour in the revenue
records in respect of the suit land is eager to evict the plaintiffs from the suit land at
the earliest by exercising force and therefore, the plaintiffs filed a present suit for
declaration declaring that the plaintiffs are in continuous possession and have
acquired ownership title by virtue of principles of adverse possession and the sale
deeds dated 07.07.1970 and 17.12.2007 are not binding upon the plaintiffs and the
mutation order attested in favour of defendant No.5 is also not binding on them and
also seeks permanent injunction restraining the defendants from interfering in their
possession.
10. The written statement filed by legal heirs of defendants No.3-A to D, the
allegations made in the plaint are not true or correct. The disputed suit land not
possessed by ancestors of plaintiffs, the plaintiffs are not in possession of disputed
land from the life-time of their ancestors i.e. from the year 1956 nor the plaintiffs
acquired any title by virtue of adverse possession. The plaintiffs took several pleas
that on one hand, they themselves are in possession of the suit property in the
Signature Not Verified
Signed by: ANUSHREE
PANDEY
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NEUTRAL CITATION NO. 2024:MPHC-IND:29863 5 FA No.105/2010
capacity of owner and on the other hand, they claimed to have acquired suit property
on the basis of agreement of sale by adverse possession. Further more, the plaintiffs
have no right to challenge the registered sale deeds.
11. Further averred that the plaintiffs have not filed suit for specific performance
on the basis of agreement of sale dated 27.07.1962 and the said agreement is not
stamped and registered under the Indian Stamp Act and the said agreement is void in
law and no rights flow in favour of plaintiffs. Defendants have acquired the title from
the year 1970 and the plaintiffs have not challenged the said sale deeds and the said
sale deeds are in force, therefore, the defendants should not be suffered on the
erroneous pleadings. Since they were in possession of property on the basis of sale
deed, therefore, the suit of the plaintiffs is liable to be dismissed.
12. Written statement filed by defendant No.5 stated that the averments made in
the plaint are false. Further averred that the plaintiffs are not entitled to any reliefs.
The plaintiffs themselves have failed to prove the possession of property and they can
not seek for adverse possession, therefore, the suit of the plaintiffs is liable to be
rejected. Further averred that the plaintiffs have not sought for relief of specific
performance since the suit of the plaintiffs is barred by law of limitation, therefore,
the suit of the plaintiffs is liable to be dismissed. Further averred that the possession
was delivered on the basis of agreement of sale dated 27.07.1962 and entire sale
consideration was paid and the said agreement is under valued and does not bear
sufficient stamps and registration under the Indian Stamps Act and therefore, the said
agreement is liable to be terminated and same is void in law. Further averred that in
the revenue records, his name was mutated by virtue of sale deeds as Bhumiswami.
He paid the entire consideration and obtained sale deed on 17.12.2007 as he was the
bona fide purchaser of the suit land. Further averred the present suit is filed by the
plaintiffs for causing harassment to them. The proceedings have been initiated by the
defendants to remove the entries made in the revenue records, by virtue of registered
sale deed, which have been executed in favour of Ishak, Anar, Gani and Babu (legal
Signature Not Verified
Signed by: ANUSHREE
PANDEY
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NEUTRAL CITATION NO. 2024:MPHC-IND:29863 6 FA No.105/2010
heirs of defendant No.3) and deceased Gata in the year 1970 in revenue records,
therefore, the present suit filed by plaintiffs is time barred and the suit of the plaintiffs
is liable to be dismissed.
13. The trial Court on the basis of pleadings of the parties framed the following
issues:-
“(i) Whether the ancestors of Plaintiff No.1 and Plaintiff No.2 had bought the land
having Survey No. 202 Paiki measuring 0.664 hectares and Survey No.201/2 Paiki
measuring 1.125 hectares respectively from the original Defendants No.1 to 4 in the year
1960-61?
(ii) Whether the plaintiffs have peacefully remained in the continuous possession of
the disputed lands without any obstruction from the year 1956. If yes, its effect.
(iii) Whether defendants No.1 to 3 did not have any right to sell out the disputed land
to the defendants No.3-A, B, C and D?
(iv) Whether sale deed dated 07.07.1970 executed by the defendants in favour of the
heirs of defendant No.3 is since without authority, therefore, same is not binding on the
plaintiffs.
(v) Whether possession of the plaintiffs on the disputed land was recorded in Tehsil
Office with the consent of defendants No.3-A, B, C and D in the year 2003?
(vi) Whether since the defendants No.3-A, B, C and D do not have any right to sell
out the disputed land, therefore, sale deed dated 17.12.2007 executed in favour of the
defendant No.5 is not binding on the plaintiffs?
(vii) Whether defendant No.5 is the bona fide buyer of the disputed lands?
(viii) Whether suit of the plaintiffs is time barred?
(ix) Whether plaintiffs by doing correct valuation of the suit has paid sufficient court
fee?
(x) Relief and costs?
(xi) Whether present suit of the plaintiffs is maintainable on the basis of two different
pleadings made in regard to the title?
(xii) Whether suit of the plaintiffs is not maintainable because relief of specific
performance of the contract has not been sought?”
14. During the course of trial, PW-1 to 11 were examined and Exs.P-1 to P-47
were got marked on behalf of plaintiffs. DW-1 to DW-3 were examined and Exs. D-1
to D-8 were got marked on behalf of defendants.
15. The trial Court answered the issues No.1 to 4 are not proved. Issue No.5
consent was given but due to this plaintiffs do not acquire any right on its basis. Issue
No.6 is not proved. Issue No.7 is proved. Issues No.8 and 9 are not proved. Issue
No.10 since the suit of the plaintiffs is not proved, hence, the same has been rejected.
Issues No.11 and 12 are not proved. Resultantly, the trial Court on an analysis of the
Signature Not Verified
Signed by: ANUSHREE
PANDEY
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NEUTRAL CITATION NO. 2024:MPHC-IND:29863 7 FA No.105/2010
entire evidence on record both oral and documentary, held that the plaintiffs have
failed to prove that they acquired any title over the suit property on the basis of
agreement of sale by adverse possession and is not entitled for permanent injunction
and the suit is dismissed. Accordingly, the suit of the plaintiffs is dismissed.
16. Feeling aggrieved by and dis-satisfied with the impugned judgment and decree
dated 16.11.2009 passed by the trial Court dismissing the suit for declaration of title
by adverse possession and permanent injunction, the plaintiffs / appellants have
preferred the present appeal.
17. Shri Jitendra Verma, learned counsel for the appellants submitted that the suit
of the plaintiffs for declaration declaring that the forefathers of the plaintiffs are in
continuous possession of the suit land from 1956 and later the plaintiffs obtained
agreement of sale from the defendants on 27.07.1962 and possession was delivered
and plaintiffs are in continuous possession of the suit land more than the statutory
period, the appellants entitled for declaration by adverse possession and the sale
deeds obtained by defendants dated 07.07.1970 and 17.12.2007 is not binding on
them.
18. Further submitted that the trial Court recorded the erroneous findings of facts
holding that the plaintiffs have not acquired the title on the basis of agreement of sale
by adverse possession. Further submitted that the decree and judgment of the trial
Court are contrary to the law. Further submit that the trial Court should have seen
agreement of sale dated 27.07.1962 (Ex.P-47) that property was delivered and ever
since they are in possession of the property, therefore, the appellants / plaintiffs
entitled for declaration of title by adverse possession.
19. Further submitted that the agreement of sale dated 27.07.1962 (Ex.P-47) is a 30
year old document, therefore, according to Section 90 of the Evidence Act, 30 years
old documents need not be proved. From the date of agreement of sale, they are in
possession of property and which was delivered on the said date, therefore, the
plaintiffs acquired the title by adverse possession. The findings recorded by the trial
Signature Not Verified
Signed by: ANUSHREE
PANDEY
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NEUTRAL CITATION NO. 2024:MPHC-IND:29863 8 FA No.105/2010
Court is improper and invalid. Further submitted that in para 24 of the judgment
stated that the names of plaintiffs are mutated in their land revenue records and after
inquiry, the Tehsildar issued a notification and Panchnama was made and the
possession of plaintiffs were recorded since 1956. Further submitted that having
regard to the above facts, the plaintiffs entitled for declaration of title by adverse
possession, continuous peaceful and uninterrupted possession more than 12 years.
Further submitted that there is an uninterrupted possession of the suit land for a
period exceeding 12 years and it is also well settled that long and continuous
possession by itself could constitute adverse possession. Further submitted that the
sale deeds, which were obtained by defendants on 07.07.1970 and 17.12.2007 are not
binding on the plaintiffs and the possession of the plaintiffs cannot be disturbed.
Further submitted that judgment and decree of the trial Court liable to be set aside,
therefore, the appeal deserves to be allowed by setting aside the judgment and decree
passed by the trial Court dated 16.11.2009.
20. Per contra, Shri Nilesh Agrawal, learned counsel for respondent No.5
submitted that Defendant No.5 is the bona fide purchaser of the suit land. The
agreement of sale under Ex.P-47 is inadmissible for want of stamp duty and
registration and the same is void in law and no rights flow in favour of the plaintiffs
therefrom. Further submitted that before purchasing the property, the defendant No.5
issued a paper publication dated 28.08.2006 marked as Ex.P-36 and later purchased
the suit land. Further submitted that the defendants No.1 to 3 sold the property to
defendants No.3-A to D under sale deed dated 07.07.1970 and from them defendant
No.5 had purchased the property on 17.12.2007 the suit was filed in the year 2008,
therefore, plaintiffs are not entitled for declaration of title by adverse possession.
Further submitted that plaintiffs obtained agreement of sale in the year 1962 and
thereafter, defendant No.5 purchased the property in the year 2007 from its lawful
owner. Even according to the plaintiffs, if they are in possession of suit property from
1962, the statutory period of 12 years is not completed by the time of sale transaction
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Signed by: ANUSHREE
PANDEY
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NEUTRAL CITATION NO. 2024:MPHC-IND:29863 9 FA No.105/2010
in the year 1970. Therefore, the plaintiffs have not acquired any title by adverse
possession. Further submitted that the plaintiffs have to file suit for specific
performance on the basis of agreement of sale within a period of 03 years. Further
submitted that there was no explanation from the plaintiffs for not filing the suit for
specific performance within the limitation and no explanation from them for not
obtained sale deed from the defendants basing on agreement of sale. The unregistered
agreement of sale does not grant ownership rights and no suit for declaration can be
filed on the basis of such agreement of sale and the said agreement for want of stamp
duty and registration and the same is void in law, at the best on the basis of agreement
of sale, they could have claimed the relief of specific performance in appropriate
proceedings.
21. Further submitted that the plaintiffs neither filed suit for specific performance
within limitation (within 03 years) from the date of agreement of sale nor filed any
suit for cancellation of sale deeds dated 07.07.1970 and 17.12.2007. Further
submitted that according to the plaintiffs, they obtained agreement of sale and
property was delivered, it is not admissible as evidence of its contents, it can be
looked into for collateral purpose, such as to see the nature of possession of the party
over the property and the plaintiffs claiming title over the suit land by adverse
possession. Since they were in possession of the land by virtue of unregistered
agreement of sale, un-stamped and the same is void in law and no rights flow in
favour of the defendants. Further submitted that none of the witnesses were examined
to prove the agreement of sale (Ex.P/47) said to have been executed by the
defendants and when the plaintiffs / appellants are taking plea of adverse possession,
they must establish the possession, which is peaceful, open and continuous
possession, which means the requirement being nec vi, nec clam and nec precario to
substantiate plea of adverse possession must be fulfilled. With the aforesaid
submissions, thus, prayed for dismissing the appeal by maintaining the judgment and
decree passed by the trial Court.
Signature Not Verified
Signed by: ANUSHREE
PANDEY
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NEUTRAL CITATION NO. 2024:MPHC-IND:29863 10 FA No.105/2010
22. After hearing elaborate arguments advanced on behalf of parties and on perusal
of the record, I am of the view that the following points arise for consideration in this
appeal :
“(i) Whether, the original suit filed by the plaintiffs / appellants seeking declaration
of title by adverse possession against the defendants in respect of suit property without
seeking specific performance basing on the agreement of sale dated 27.07.1962,
rescinding the contract is maintainable in law?
(ii) Whether, the agreement of sale (Ex.P-47) is valid in the absence of registration
and stamp duty under the Stamp Act?
(iii) Whether, the decree and judgment of trial Court is proper or needs any
interference by this Court while sitting an appeal.”
23. Since all the above points are interacted in each other they are dealt together.
24. The undisputed facts as per the pleadings and evidence are that agreement to
sale was entered into 27.07.1962 by the defendants and received advance of
Rs.1250/- and handed over the subject suit land to the plaintiffs. Subsequently, two
sale transactions were made under registered sale deeds i.e. 07.07.1970 and
17.12.2007, admittedly, the plaintiffs have not filed suit for specific performance
within limitation from the date of agreement of sale. Admittedly, the plaintiffs have
not filed suit for cancellation of above sale deeds (supra). Admittedly, defendant No.5
is in possession of property and the name of defendant No.5 were mutated in the
revenue records as per Exhs.P-34, 35, 39 and P-40 and Ex.D-3, 4 and D-6.
25. In view of the undisputed facts referred (supra), the Court should consider
whether the plaintiffs have proved their title by adverse possession on the basis of
agreement of sale (Ex.P-47), which is inadmissible for want of stamp duty and
registration and the same is void in law and no rights flow in favour of the plaintiffs.
26. Before discussing the above aspects, the appeal is under Section 96 of Civil
Procedure Code, the scope of Section 96 of the CPC is to be considered.
27. While dealing with the scope of the first appeal, three judges Bench of Hon’ble
Apex Court in case of Santosh Hazari Vs. Purushottam Tiwari (Dead) By LRs 1
held as follows:
1. (2001) 3 SCC 179
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Signed by: ANUSHREE
PANDEY
Signing time: 23-10-2024
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NEUTRAL CITATION NO. 2024:MPHC-IND:29863 11 FA No.105/2010“15………the appellate court has jurisdiction to reverse or affirm the findings of the trial
court. First appeal is a valuable right of the parties and unless restricted by law, the
whole case is therein open for rehearing both on questions of fact and law. The judgment
of the appellate court must, therefore, reflect its conscious application of mind and
record findings supported by reasons, on all the issues arising along with the contentions
put forth, and pressed by the parties for decision of the appellate court. The task of an
appellate court affirming the findings of the trial court is an easier one. The appellate
court agreeing with the view of the trial court need not restate the effect of the evidence
or reiterate the reasons given by the trial court; expression of general agreement with
reasons given by the court, decision of which is under appeal, would ordinarily suffice
(See Girijanandini Devi v. Bijendra Narain Choudhary [AIR 1967 SC 1124] ). We
would, however, like to sound a note of caution. Expression of general agreement with
the findings recorded in the judgment under appeal should not be a device or camouflage
adopted by the appellate court for shirking the duty cast on it……..”
28. In case of H.K.N. Swami v. Irshad Basith2, Hon’ble Apex Court ruled that:
“3. The first appeal has to be decided on facts as well as on law. In the first appeal
parties have the right to be heard both on questions of law as also on facts and the first
appellate court is required to address itself to all issues and decide the case by giving
reasons. Unfortunately, the High Court, in the present case has not recorded any finding
either on facts or on law. Sitting as the first appellate court it was the duty of the High
Court to deal with all the issues and the evidence led by the parties before recording the
finding regarding title. The order of the High Court is cryptic and the same is without
assigning any reason.”
29. On the basis of these two judgments, the first appeal has to be decided on the
basis of evidence led by the parties and the points arise in the appeal as stated (supra).
30. Now the plaintiffs are claiming the property under of agreement of sale dated
27/07/1962 by adverse possession. Any agreement of sale which evidence delivery of
possession would fall within the ambit of Article 47-A of Schedule 1-A of Indian
Stamps Act. The respondent contends that the said unregistered agreement of sale
was, in fact, a sale and the document is required to be impounded and stamped by
treating the document as a sale under Explanation-1 to Article 47-A of Schedule 1-A
of Indian Stamps Act, 1899.
31. Entry 47-A of Schedule 1-A of the Indian Stamp Act, 1899 reads as follows:
“47-A. Sale as defined in Section 54 of the Transfer of Property Act, 1882 :
(a) in respect of property situated in any local area comprised in a Municipal
Corporation:
2. (2005) 10 SCC 243
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PANDEY
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NEUTRAL CITATION NO. 2024:MPHC-IND:29863 12 FA No.105/2010
(b) ……
(c) …….
(d) …….
Explanation-I An agreement to sell followed by or evidencing delivery of possession of
the property agreed to be sold shall be chargeable as a “sale” under this Article:
Provided that, where subsequently a sale deed is executed in pursuance of an agreement
of sale as aforesaid or in pursuance of an agreement referred to in Clause (b) of Article,
the stamp duty, if any, already paid or recovered on the agreement of sale shall be
adjusted towards the total duty leviable on the sale deed.
Explanation-II ….”
32. In view of the Explanation-1 any document, which evidence delivery of
possession requires to be treated as document filed under entry of Article 47-A of
Schedule 1-A of the Indian Stamps Act, 1899. The respondents contend that the
agreement of sale dated 27/07/1962 contains a provision, evidencing delivery of
possession.
33. It is no doubt true that the nature of the document has to be decided on perusal
of the contents of the agreement of sale. The nomenclature or recitals in the plaint
shown as ‘Agreement of Sale’. The Hon’ble Apex Court in the case of Omprakash –
Appellant Vs. Laxminarayan and Ors. – Respondents (2) in Civil Appeal
No.9032/2013 [2014 (1) ALT 47.3 (DN SC)] explaining the scope of definition of
conveyance and considering the similar agreement in Madhya Pradesh amendment to
Indian Stamp Act held that the agreement of sale followed by and evidencing delivery
of possession requires stamp duty and penalty as conveyance”.
34. Therefore, it is held that the document dated 27/07/1962 is an agreement of
sale evidencing and followed by delivery of possession requires stamp duty and
penalty as conveyance as per Explanation-1 of Article 47-A of Schedule 1-A of the
Indian Stamp Act.
35. In the judgment of the division Bench erstwhile High Court of A.P. in B.
Ratnamala Vs. G. Rudramma3 held that:
“In this judgment, the question that arose before the Division Bench was whether the
3. 1999 (6) ALT 59 (DB)
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PANDEY
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NEUTRAL CITATION NO. 2024:MPHC-IND:29863 13 FA No.105/2010words “followed by or evidencing delivery of possession” would mean that only a
document, which records handing over of possession by virtue of the agreement of sale
would fall within the ambit of Article 47-A or whether a document, which records
handing over of possession even prior to the agreement of sale would also fall within
the ambit of Article 47-A of Schedule-1 A of the Indian Stamp Act, 1899.”
36. The Division Bench after considering this issue had held as follows:
“Thus the main question that falls for consideration is the interpretation of the
expressions “followed by or evidencing delivery of possession”. These expressions
cannot be read in isolation and one has to find the true meaning by reading the entire
Explanation and more so in conjunction with the earlier expression. i.e., “agreement”.
Even if these two expressions are looked independently, it means an agreement to sale
followed by delivery of possession and an agreement to sell evidencing delivery of
possession. In the first case, i.e., “followed by delivery”, possession cannot be
disjuncted from the basic source i.e., agreement of sale. Therefore, the expression
followed by delivery of possession should have a direct nexus to the agreement and
should be read in juxtaposition to the word ‘agreement’ and it cannot be independent or
outside the agreement. Therefore, the delivery of possession should follow the
agreement i.e., through the agreement. It takes in its sweep the recital in the agreement
itself that delivery of possession is being handed over. It will also cover cases of
delivery of possession contemporaneous with the execution of Agreement, even if there
is no specific recital in the Agreement. In other words, the delivery of possession should
be intimately and inextricably connected with the Agreement. And in the second type,
i.e., agreements evidencing delivery of possession, if the document contains evidence of
delivery of possession by a recital in that behalf, that is sufficient. Such delivery of
possession can be prior to the date of agreement and need not be under the agreement. If
the Agreement records the fact that the possession was delivered earlier and such recital
serves as evidence of delivery of possession, though prior to the Agreement, it falls
under the second limb. Therefore, on a proper interpretation of the said expressions, it
would follow that an agreement containing specific recital of delivery of possession or
indicating delivery of possession even in the past is liable for stamp duty as a ‘sale’
under the said Explanation.”
37. In view of the above cited judgment, it is now settled that the agreement of
sale, which evidences delivery of possession by virtue of said agreement of sale or
any document, which even records the delivery of possession had been done even
before the execution of agreement of sale has been executed would both fall within
the ambit of Article 47-A Schedule 1-A of Indian Stamps Act. In the present case, the
question is whether the aforesaid extract of agreement of sale can be treated as an
evidencing delivery of possession, in the circumstances, it would have to be held that
the document evidences delivery of possession even prior to the execution of
agreement of sale dated 27.07.1962, consequently, the said document falling within
the ambit of Article 47-A Schedule 1-A of Stamp Act, therefore, in the present case,
though the agreement of sale dated 27/07/1962 marked as Ex.-P/47, is inadmissible,
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therefore, the agreement of sale dated 27.07.1962 is inadmissible for want of stamp
duty and registration and the same is void in law and no rights flow in favour of the
plaintiffs therefrom.
38. Coming to the appreciation of evidence, it is no doubt from experience and
knowledge of human affairs depending upon facts and circumstances of each case
and regard must be had to the credibility of the witness, probative value of the
documents, relationship of the parties in actions and inactions, lapse of time, if any, in
proof of the events and occurrences, from consistency to the material on record to
drawn wherever required the necessary inferences and conclusions from the broad
probabilities and preponderances, from the overall view of entire case to judge as to
any fact is proved or not proved or disproved and the conclusions arrived by the trial
Court are sustainable or not. Since all the above points are interrelated to each other
they are dealt (supra).
39. The very claim of the plaintiffs that their ancestors are in possession of the
property since 1956 and thereafter, they obtained agreement of sale from the
defendants on 27/07/1962 and paid entire sale consideration under Ex.-P/47, the
property was handed over on the date of agreement. The another plea taken by them
that they are in possession of the property since 1956. Such plea cannot be sustained
in absence of any evidence mere mutating the plaintiffs’ name in the revenue record
prior to the agreement of sale does not confer any right. The plaintiffs are claiming
that they were in possession of the property from the date of agreement of sale
uninterruptedly for more than statutory period. They are claiming for declaration of
title and having absolute right over the suit subject property by way of adverse
possession.
40. In the instant case, there must be some end to the litigation and the parties
cannot take different pleas in different spells by filing suits at different times inviting
the findings of the Court afresh at their convenience. The adverse possession needs to
be pleaded in a clear terms and certainly a party leading adverse possession has no
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equities in their favour since the plaintiffs / appellants trying to defeat the rights of
the true owner. It is for them to clearly plead and establish all the facts necessary to
prove their adverse possession.
41. Undoubtedly, a first appeal is a valuable right of the party to lis and for this
reason, the judgment of such appeal must reflect conscious application of mind
backed by reasons on all the issues and contentions put forth by parties. Thus, an
appellate Court should have a regard to vital aspects and considerations. This is
reflective in the wording of Section 107(2) of the Code and by the catena of
precedents. It is relevant to discuss a few;
42. It is beneficial to the extract the passage referred in Shasidhar Vs. Ashwini
Uma Mathad4, which referred to the observation made by Justice V.R. Krishna Iyer
on the duty of an appellate Court, which reads thus:
“11. As far back in 1969, the learned Judge — V.R. Krishna Iyer, J. (as His
Lordship then was the Judge of the Kerala High Court) while deciding the first appeal
under Section 96 CPC in Kurian Chacko v. Varkey Ouseph [Kurian Chacko v. Varkey
Ouseph, 1968 SCC OnLine Ker 101 : AIR 1969 Ker 316], reminded the first appellate
court of its duty as to how the first appeal under Section 96 should be decided. In his
distinctive style of writing and subtle power of expression, the learned Judge held as
under : (SCC OnLine Ker paras 1-3)
“1. The plaintiff, unsuccessful in two courts, has come up here aggrieved by the
dismissal of his suit which was one for declaration of title and recovery of possession.
The defendant disputed the plaintiff’s title to the property as also his possession and
claimed both in himself. The learned Munsif, who tried the suit, recorded findings
against the plaintiff both on title and possession. But, in appeal, the learned Subordinate
Judge disposed of the whole matter glibly and briefly, in a few sentences.
2. An appellate court is the final court of fact ordinarily and therefore a litigant is
entitled to a full and fair and independent consideration of the evidence at the appellate
stage. Anything less than this is unjust to him and I have no doubt that in the present
case the learned Subordinate Judge has fallen far short of what is expected of him as an
appellate court.
3. Although there is furious contest between the counsel for the appellant and for the
respondent, they appear to agree with me in this observation.” ..”
(emphasis supplied)
43. Further, the Hon’ble Apex Court in case of U. Manjunath Rao v. U.
Chandrashekar5 also emphasised on the duty of the first appellate courts
exhaustively. The relevant extracts read thus:
4. 2015 (3) ALT 7 (SC) = (2015) 11 SCC 269
5. (2017) 15 SCC 309
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NEUTRAL CITATION NO. 2024:MPHC-IND:29863 16 FA No.105/2010“7. It is well settled in law that the reason is the life of law. It is that filament that injects
soul to the judgment. Absence of analysis not only evinces non-application of mind but
mummifies the core spirit of the judgment. A Judge has to constantly remind himself
that absence of reason in the process of adjudication makes the ultimate decision
pregnable. While dealing with the first appeal preferred under Section 96 CPC, the
Court in State of Rajasthan v. Harphool Singh [State of Rajasthan v. Harphool Singh,
(2000) 5 SCC 652] took note of the exception to the judgment passed by the first
appellate court by observing that there was no due or proper application of mind or any
critical analysis or objective consideration of the matter, despite the same being the first
appellate court.”
44. Keeping in mind the precedential law, having heard submissions on behalf of
both the parties and on perusal of the material available on record and the Court has
to see whether the plaintiffs has proved that they were in possession of the suit
property by virtue of adverse possession beyond the period of limitation prescribed
under the Act. In this regard adverse possession needs to be pleaded in a clear terms
of certainty. It is the case of the plaintiffs that they were in possession over the
property is out of a right that arose under an agreement of sale dated 27.07.1962 and
that they also claiming their rights by way of adverse possession apart from under the
right of agreement of sale for possessing the subject property from 1956 for last 56
years.
45. It is a settled proposition of law that a party, who is claiming adverse
possession, must demonstrate and prove that their possession is “nec vi, nec clam,
nec precario” i.e., peaceful, open and continuous. A five-Judge Bench of the Hon’ble
Supreme Court in M Siddiq (D) through Lrs v. Mahant Suresh Das 6, explained this
settled principle as follows;
“748. A person who sets up a plea of adverse possession must establish both
possession which is peaceful, open and continuous – possession which meets the
requirement of being ‘nec vi nec claim and nec precario’. To substantiate a plea of
adverse possession, the character of the possession must be adequate in continuity and
in the public because the possession has to be to the knowledge of the true owner in
order for it to be adverse. These requirements have to be duly established first by
adequate pleadings and second by leading sufficient evidence.”
(emphasis supplied)
46. The Hon’ble Apex Court in case of Government of Kerala and Anr. v.
Joseph and Ors.7 summarised the law governing adverse possession at para 21.
6. (2020) 1 SCC 1
7. 2023 INSC 693
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Relevant portion reads as under:
“21.2 The person claiming adverse possession must show clear and cogent evidence
substantiate such claim;
This Court in Thakur Kishan Singh v. Arvind Kumar (two-Judge Bench) held that –
“5. A possession of a co-owner or of a licensee or of an agent or a
permissive possession to become adverse must be established by cogent
and convincing evidence to show hostile animus and possession adverse
to the knowledge of real owner. Mere possession for howsoever length of
time does not result in converting the permissive possession into adverse
possession…”
21.4…..
(d) It was also held in the case of Chatti Konati Rao v. Palle Venkata Subba Rao
(two-Judge Bench) –
“15. Animus possidendi as is well known is a requisite ingredient of adverse
possession. Mere possession does not ripen into possessory title until the
possessor holds the property adverse to the title of the true owner for the said
purpose. The person who claims adverse possession is required to establish the
date on which he came in possession, nature of possession, the factum of
possession, knowledge to the true owner, duration of possession and that
possession was open and undisturbed…”
(Emphasis supplied)
47. Therefore, to successfully claim adverse possession, it is necessary to show (a)
the date on which the claimant came into possession; (b) nature of his possession; (c)
knowledge of the factum of possession to the other party; (d) how long the possession
has continued and (e) his possession was open and undisturbed.
48. In the instant case, that is the case of executory contract of sale, where the
plaintiffs are put in possession of the property in pursuance of agreement of sale
dated 27.07.1962 and where the parties contemplate the execution of a regular sale
deed, the plaintiffs possession is of a derivative character and it is a clear recognition
and acknowledgment of possession of the defendants. As such, the possession of the
plaintiffs / puchaser in such a case is permissive in character and it does not amount
to adverse possession.
49. Adverse possession implies that it commenced in wrong and is maintained
against right. A plaintiffs leading adverse possession has no equities in their favour.
Since they are trying to defeat the rights of the true owner, it is for them to clearly
plead and establish all facts necessary to prove their adverse possession.
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50. In the case of Union of India vs. Vasavi Cooperative Housing Society
Limited8 in which it was held that in a suit for declaration of title by adverse
possession, the burden always lies on the plaintiff to make out and establish clear
case for granting such a declaration and the weakness, if any, of the case set up by the
defendantd would not be a ground to grant relief to the plaintiff. Plaintiff could
succeed only on the strength of its own title and that could be done only by adducing
sufficient evidence.
51. In the case of Chatti Konati Rao and Others vs. Palle Venkata Subba Rao 9
in which it was held as follows:
“It is a well settled principle that a party claiming adverse possession must prove that
his possession is ‘nec vi, nec clam, nec precario’ that is, peaceful, open and continuous.
The possession must be adequate in continuity, in publicity and in extent to show that
their possession is adverse to the true owner. A person who claims adverse possession
should show: (a) on what date he came into possession, (b) what was the nature of his
possession, (c) whether the factum of possession was known to the other party, (d) how
long his possession has continued and (e) whether his possession was open and
undisturbed. A person pleading adverse possession has no equities in his favour. Since
he is trying to defeat the rights of the true owner, it is for him to clearly plead and
establish all facts necessary to establish his adverse possession.”
52. In light of the above decisions now it is for this Court to see whether the
judgment of trial Court is in proper appreciation facts and sustainable.
53. During the course of cross-examination, plaintiff No.1 examined as PW-1
stated that her father-in-law was in possession of the property. Further stated that she
has not filed any suit regarding the acquisition of the title in respect of the suit land.
She further stated that the suit land was recorded in the name of Rahmat and others.
54. In the cross-examination of defendant No.5, who purchased the property under
registered sale deed dated 17.12.2007 examined as DW-3 stated that before
purchasing the suit property he has issued a paper publication calling for objections
dated 28/06/2006 (Ex.-P/36) through his vendors Ishak, Anar, Gani and Babu i.e.
legal heirs of defendant No.3 Nani Bai stating that they have entered into an
agreement of sale regarding the suit subject land for which they have received the
8. (2014) 2 SCC 269
9. (2010) 14 SCC 316
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part of sale consideration. In reply to the Ex.-P/36, plaintiff No.2 issued a paper
publication on Ex.P/37 dated 30/08/2006 stating that they have presented a complaint
before the Tehsildar and case has been registered in the Court of Tehsildar and
cautioned not to sell the suit property to anyone. In terms of Ex.-P/37, Ex.-P/38
issued by plaintiffs / appellants No.1 and 2 dated 22/09/2007 stated in respect of
survey Nos.202 and 201/2 that they are in possession of the property for last 50 years
and their names were mutated in the revenue records and cautioned not to purchase
the said property without their consent and thereafter, defendant No.5 purchased the
property vide registered sale deed dated 17.12.2007 under Ex.D-1, Ex.D-6 reveals
that the proceedings issued by Tehsildar dated 13/02/2008 showing that name of
purchaser of the suit property i.e. defendant No.5 mutated in the revenue record in
place of defendant No.3-A to D, therefore, the possession of defendant No.5 is
established by way of registered sale deed dated 17/12/2007, the plaintiffs preferred
an appeal against the mutation of the defendant No.5 in the revenue records and the
appeal was dismissed by SDO and the order of the Tehsildar confirmed and issued
Rin Pustika in the name of defendant No.5, therefore, defendant No.5 is treated to be
owner of the suit land and in possession of the suit property.
55. The plaintiffs / appellants are in permissive possession under the agreement of
sale dated 27/07/1962, therefore, when they were in permissive possession, it cannot
be claimed by them as adverse possession, the defendants executed an agreement of
sale dated 27/07/1962, thereafter, the LRs of defendant No.3-A to D executed a sale
deed on 07.07.1970 and the subsequent purchaser executed a sale deed in favour of
defendant No.5 on 17.12.2007. According to the plaintiffs, even if they were in
possession of the property from the date of agreement. The statutory period for 12
years is not completed, according to the plaintiffs, they were in possession of the
property even prior to the agreement of sale if they were in possession of the property
they would not have mentioned in agreement of sale that the suit land handed over to
them on the date of agreement of sale, hence, they are not in possession of the
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property prior to the agreement of sale. The plea taken by the plaintiffs that they were
in possession of the property from 1956 is found to be false and therefore, the claim
of adverse possession be entertained. Appellants’ very claim of adverse possession is
tainted with mala fides.
56. In the light of the above evidence, the very plea taken by the appellants that
they were in possession of the property uninterrupted by the original owner, they are
claiming declaration by way of adverse possession is not proper without filing suit for
specific performance and in case of Shakeel Ahmed Vs. Syed Akhlaq Hussain 10,
wherein it is observed thus :-
“10….. It is to be emphasized that irrespective of what was decided in the case
of Suraj Lamps and Industries (supra) the fact remains that no title could be transferred
with respect to immovable properties on the basis of an unregistered Agreement to Sell
or on the basis of an unregistered General Power of Attorney. The Registration Act,
1908 clearly provides that a document which requires compulsory registration under the
Act, would not confer any right, much less a legally enforceable right to approach a
Court of Law on its basis. Even if these documents i.e. the Agreement to Sell and the
Power of Attorney were registered, still it could not be said that the respondent would
have acquired title over the property in question. At best, on the basis of the registered
agreement to sell, he could have claimed relief of specific performance in appropriate
proceedings. In this regard, reference may be Civil Appeal No.1598 of 2023 Page 9 of
11 made to sections 17 and 49 of the Registration Act and section 54 of the Transfer of
Property Act, 1882.”
57. In case of Ghulam Qadir Mir and Ors. Vs. UT of J&K and Ors. 11 the court
opined as follows:
12. “The petitioners, admittedly, had filed a suit on the basis of agreement of sale, which
as per law does not confer any title or ownership qua the immovable property in favour
of a person. On the basis of agreement to sale, the remedy is available to the proposed
vendee is to seek specific performance of contract but in noway a suit for declaration as
owner on the basis of agreement of sale can be filed. Once no right in immovable
property was vested in the appellants pursuant to agreement of sale, the same could not
have formed the basis of filing the suit for seeking ownership over the suit property.”
58. In the present case, the appellants / plaintiffs entered into agreement of sale
between the parties to the suit on 27/07/1962 and appellants / plaintiffs has to file a
suit within three years as per the Limitation Act, therefore, the suit filed by them for
declaration basing on the agreement of sale claiming for adverse possession is not
maintainable. After eight years from agreement of sale dated 27/07/1962 the
10. 2023 SCC OnLine SC 1526
11. 2024 SCC OnLine J&K 208
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defendants No.1 to 3 sold the subject land to the legal heirs of defendant No.3 i.e. A
to D dated 07.07.1970 under registered sale deed and later the defendant No.3-A to D
and defendant No.4 sold the property to defendant No.5 under registered sale deed
dated 17/12/2007, the appellants having knowledge about the issuance of paper
publication under Ex.-P/36 to P/38, they have not taken any steps for cancellation of
respective sale deeds referred (supra). Even otherwise, the very suit itself is not
maintainable as they could not claim relief for specific performance, the agreement of
sale (as stated supra) is inadmissible for want of stamp duty and registration under
Indian Stamp Act. The same is void in law and no rights flow in favour of the
appellants.
59. Learned counsel for the appellants relied upon the judgment in case of
Ramesnwar Vs. Badrilal and Ors. reported in 2012 (4) MPLJ 147 and another
judgment in the case of Pramod Kumar Vs. Kushum Lashkari and Ors. reported
in 2020 (2) MPLJ 357. On perusal of these judgments are not much use of the
appellants since the facts of these judgments are different and the ratio of the above
judgments have no relevance to the facts of present appeal inasmuch as the plaintiffs
have sought declaration of ownership for the suit property by way of adverse
possession, which they are not entitled.
60. In the above facts and circumstances, issue of an order of injunction is
absolutely discretionary and the equitable relief of injunction in the given facts as
discussed above, the appellants are not entitled for any injunction, since the suit
schedule land mutated in the name of defendant No.5 in the revenue records under
Ex.-D/1 to D/4. Accordingly, the defendant No.5 is an absolute owner of the suit land
since the sale deeds said to have been executed in favour of defendant No.5 is in
force.
61. In the light of the above findings, the possession of the appellants / plaintiffs is
only permissive possession on the basis of agreement of sale and it cannot be said
that they perfected title by adverse possession.
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62. Defendants No.1 to 3 sold the property to defendant No.3-A to D under
registered dated 07.07.1970, thereafter, defendant No.3-A to D sold the property to
defendant No.5 under registered sale deed dated 17.12.2007 having knowledge about
the execution of sale deed in respect to the same property, appellants / plaintiffs have
not filed any suit for cancellation of sale deeds as stated (supra). Further they have
not filed any suit for specific performance within a period of three years as per
Limitation Act, admittedly, the agreement of sale said to have been executed in
favour of the appellants under Ex.P-47 is inadmissible for want of stamp duty and
registration and the same is void in law and no rights flow in favour of the appellants
therefrom. Appellants had filed a suit on the basis of an agreement to sell, which as
per law does not confer any title or ownership qua the immovable property in their
favour on the basis of agreement of sale, the remedy is available to the proposed
vendee / plaintiffs is to seek the specific performance of contract, but in no way the
suit for declaration as owner on the basis of an agreement to sell can be filed.
63. Under the above facts and circumstances, findings of fact recorded by the
Court below while dismissing the suit for declaration and permanent injunction are
not perverse and is based on pleadings and evidence. The judgment under the appeal
does not call for interference of this Court under Section 96 CPC.
64. In view of my above discussion, I find no material illegality or irregularity in
the judgment and decree dated 16.11.2009 passed by learned trial Court and
therefore, the appeal is dismissed and findings are trial Court are affirmed.
Accordingly, the present appeal stands dismissed.
65. Having regard to the facts of this case, it is directed that the parties shall bear
their own costs.
All the pending applications, if any, stand disposed off.
(Duppala Venkata Ramana, J)
Anushree
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