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CASE NO.: Appeal (civil) 4031  of  1995.

PETITIONER: BALKRISHAN

       Vs.

RESPONDENT: SATYAPRAKASH & ORS.

DATE OF JUDGMENT:       22/01/2001

BENCH: Ruma Pal, S.S.M.Quadei

JUDGMENT:

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     J U D G M E N T

     Syed Shah Mohammed Quadri, J.

     This  appeal,  by special leave, is from the  judgment and  decree  of the High Court of Madhya Pradesh  (Bench  at Gwalior)  in  Civil  Second  Appeal  No.161  of  1991  dated September  1,  1994.   The  plaintiff   in  the  suit  (Case No.51-A/86 in the court of Second Civil Judge Class I, Guna, Madhya  Pradesh)  is  the appellant.  He laid the  suit  for declaration  of  his  title on the ground  that  by  adverse possession  he  perfected his title to the agriculture  land bearing  Survey No.1216, admeasuring 1.902 hectares (Khasara No.1216  area  9 bighas 2 visvas) situated in village  Guna, Tehsil  and  District  Guna,   Madhya  Pradesh  (hereinafter referred  to  as,  the  suit   land)  and  for   permanent injunction  against  respondent  Nos.1 to 4 on  December  6, 1986.    The  following  facts  need   to  be  noticed   for understanding  the  controversy  between the  parties.   The appellant  claimed  that  he  purchased the  suit  land  for consideration  of  Rs.451/- from Sukhlal and  Phulchand  who were  said to be the owners thereof on August 25, 1960.  The suit  land was under attachment by orders of the  Tehsildar, Guna  and  in the auction that followed the attachment,  one Mohan  Singh  purchased  it  in the name of  his  minor  son Rajendra  Singh in 1963.  Rajendra Singh through guardian  - his  father Mohan Singh - filed an application under Section 250  of  Madhya Pradesh land Revenue Code, 1959, before  the Tehsilar,  Guna, against the appellant claiming  restoration of  possession  of the suit land.  On the alleged ground  of interference  in his possession, the appellant instituted  a suit   (for   declaration  praying   for   declaration   and injunction)  (Civil  Suit No.82A/64) in the court  of  Civil Judge,  Class  II, against Rajendra Singh & Mohan Singh  and his  vendors (Sukhlal & Phoolchand) in1964.  On December 23, 1966  the  suit was dismissed holding that the sale  in  his favour was not valid.  Notwithstanding the dismissal of that

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suit,  he remained in possession of the suit land.  On  June 20,  1971,  the Tehsildar ordered the appellant to  put  the said Rajendra Singh in possession of the suit land.  Against that  order  the appellant filed an appeal before  the  Sub- Divisional  Officer who dismissed the appeal on September 4, 1973.   While  so  Rajendra  Singh sold  the  suit  land  to respondent  Nos.2  and  4;  respondent No.1  is  husband  of respondent  No.2  and  respondent  No.3 is  the  husband  of respondent  No.4.   The  appellant,  however,  continued  to remain  in  the  possession  of the  suit  land.   The  said respondents  resisted the suit denying the possession of the appellant  and pleading that Mohan Singh and Rajendra  Singh were  in continuous possession of the suit land and that the appellant  acquired no title to the suit land.  They  stated that the appellant failed in the Civil Court, Revenue Court, and  before the Executive Magistrate and therefore that suit was  also  liable  to be dismissed.  After  considering  the evidence  placed  before it the trial court found  that  the appellant had been in continuous possession of the suit land and perfected his title by adverse possession.  Accordingly, the  suit  of the plaintiff was decreed by the trial  court. Against  the  judgment  and  decree   of  the  trial  court, respondent   Nos.1   to  4   filed  appeal   (Civil   Appeal No.97-A/1990)  before  the IInd Additional  District  Judge, Guna.  On 30 July, 1991, the First Appellate Court dismissed the  appeal.  The said respondents filed Civil Second Appeal No.161 of 1991 in the High Court of Madhya Pradesh (Bench at Gwaliar),  which was allowed, setting aside the judgment and decree  of  the  First  Appellate  Court,  by  the  impugned judgment  and decree.  Mr.Niraj Sharma, the learned  counsel appearing  for the appellant contended that inasmuch as  the trial  court as well as the First Appellate Court found that the appellant had perfected his title by adverse possession, the  High  Court  erred in reversing  the  well-  considered judgments  of the lower courts on the ground that possession of  the  appellant was not sufficient in the eye of  law  to confer  the title by adverse possession.  Mr.M.P.Verma,  the learned  senior  advocate  appearing  for  the  respondents, contended  that  the  earlier  suit  of  the  appellant  was dismissed  and  that  there was an order  of  the  Tehsildar directing him to handover the possession of the suit land to the respondents, therefore, the appellant could not claim to be  in continuous uninterrupted possessions as such the High Court  rightly  held that the appellant did not perfect  his title  by  adverse possession and dismissed the suit of  the appellant.  The short question that arises for consideration in this appeal is :  whether the High Court erred in holding that  the  appellant had not perfected his title by  adverse possession  on  the  ground  that  there  was  an  order  of Tehsildar against him to deliver possession of the suit land to  the  auction  purchasers?   The   law  with  regard   to perfecting  title by adverse possession is well settled.   A person  claiming  title by adverse possession has  to  prove three nec - nec vi, nec clam and nec precario.  In other words,  he  must  show that his possession  is  adequate  in continuity  in publicity and in extent.  In S.M.  Karim  Vs. Mst.  Bibi Sakina [AIR 1964 SC 1254] speaking for this Court Hidayatullah, J.  (as he then was) observed thus:  Adverse possession  must be adequate in continuity, in publicity and extent  and  a  plea is required at the least to  show  when possession  becomes  adverse so that the starting  point  of limitation against the party affected can be found.

     In  the instant case, the trial court on  appreciating the  evidence produced by the parties recorded the following

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among  other  findings:  (i) Accordingly it is decided  that since  23.12.1966 negativing the title of actual Bhumiswami, the plaintiff has been in continuous, uninterrupted and open possession of the suit land;

     (ii) As a result the plaintiff had acquired the rights of  Bhumiswami on the basis of the adverse possession of the suit land.

     The  First  Appellate  Court  on  reappraisal  of  the evidence  on  record  found  that   the  appellant  was   in continuous  possession  from the date of the purchase  i.e., August  25, 1960, but as the predecessor-in-interest of  the respondents, Rajendra Singh, initiated the proceedings under Section  250 of the M.P.  Land Revenue Code, 1959 before the Tehsildar,  Gunna,  against  the appellant for  recovery  of possession  so  the  period  from   August  25,  1960   till initiation  of  proceedings  and from  1.12.1964  to  4.9.73 during  which  the proceedings remained pending,  cannot  be counted  for  perfecting the title of the plaintiff  so  his adverse  possession would commence from 4.9.1973 and and the period  of  12  years  was completed on  4.9.85  before  the purchase  of  the suit land by the respondents on  11.12.85. The  present suit was filed on December 6, 1986,  therefore, the  appellant  perfected his title by  adverse  possession. The  High Court while accepting those findings of the courts below,  however,  held  :  In spite of the fact  that  the plaintiff  continued  in  possession in spite of  the  order against him in proceedings under Section 250 M.P.L.R.  Code, his possession cannot be said to be sufficient in the eye of law  to  confer a title upon him by adverse  possession,  as claimed.

     In  our  view  this conclusion of the  High  Court  is erroneous.   The fact remained that in spite of order of the Tehsildar  against  the appellant which was not acted  upon, nor  executed, the appellant continued in possession of  the suit  land and, therefore, the continuity of his  possession of  the  suit land was neither interrupted nor  lost.   Mere passing  of an order of ejectment against a person  claiming to be in adverse possession neither causes his dispossession nor discontinuation of his possession which alone breaks the continuity  of  possession.   The fact  that  under  Section 250(2)  of  the M.P.L.R.  Code read with Section 38  thereof the  Tehsildar  was bound to restore possession of the  suit land  would,  in  our  view, make no difference  and  it  is difficult  to  accept  the contention that  failure  of  the Tehsildar  in handing over possession would have the  effect of causing discontinuation of possession of the suit land by the appellant so as to prevent such possession from ripening into   adverse  possession  after   statutory  period.    In Singaravelu  Mudaliar Vs.  Chokka Mudaliar [AIR 1923  Madras 28  (2)]  the  Madras  High  Court took  the  view  that  an adjudication  that  the  true  owner had  a  good  title  to possession  is entirely consistent with the fact that actual possession  is with party who ousted the true owner and  has been holding possession as against the true owner on his own behalf.   It  is difficult to understand as to how a  decree which  negatived the first defendants right could  possibly be  regarded  in  the  nature  of  an  interruption  of  the continuity  of possession.  In Shaik Mukbool Ali Vs.   Shaik Wajed  Hoossein [AIR 1923 Madras 88 (2)] the High Court held :   Whatever  the decree might have been, the  defendants possession  could  not  be considered as  having  ceased  in consequences  of  that  decree,   unless  he  were  actually

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dispossessed.   The fact that there is a decree against  him does not prevent the statute of limitation from running.

     In our view, the Madras High Court correctly laid down the law in the aforementioned cases.  It will be apt to note here  the  decision  of Privy Council  in  A.S.S.   Subbaiya Pandaram  Vs.  Mohammed Mustafa Maracayar [AIR 1923 PC  175] which  was  approved  by  this Court  in  Soni  Lalji  Jetha (deceased) through his L.Rs.  Vs.  Soni Kalidas Devchand and others  [AIR 1967 SC 978].  In that case, in 1913 a suit was brought  by  the  appellant   against  the  respondents  for possession  of immovable property in question.  In 1890  the appellants  grandfather  created a trust of his  properties including  the  property  in question.   That  property  was purchased  by  the  respondents  in execution  of  a  decree against  the appellants father in 1898.  The purchaser  and other  respondents claiming under him had been in possession since  the date of purchase.  In a subsequent suit, filed in 1904  in  which the respondents were parties, a  decree  was passed  declaring that the trust created by the  appellants grandfather  was  valid.   However,  no  steps  were   taken pursuant  to the decree to dispossess the respondents  prior to  filing of the suit by the appellant.  The Privy  Council negatived the contention that the decree in the suit holding the  property as trust property was res judicata as  against the  respondents so as to preclude them from asserting title in  the  property.  The Privy Council observed as follows  : At  the  moment when it was passed the possession  of  the purchaser  was adverse and the declaration that the property had been subject to a trust disposition, and therefore ought not  to  have  been seized, did not disturb  or  affect  the quality  of  his possession;  it merely emphasised the  fact that  it  was  adverse.   No   further  step  was  taken  in consequence   of   that  declaration   until   the   present proceedings were instituted, when it was too late.

     From the above discussion it follows that the judgment and  decree  of  the High Court under  challenge  cannot  be sustained.   They are accordingly set aside and the judgment and  decree  of  the First Appellate  Court  confirming  the judgment  and  decree of the trial court is  restored.   The appeal  is  accordingly allowed but in the circumstances  of the case without costs.