1 2025:CGHC:25011 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 355 of 2014 1. Dr. Smt. Manju Lata Mishra D/o Late Shri Ambika Prasad Awasthy (Died) Through Legal Heirs: 1.1 - Manish Mishra S/o Late Shri Krishna Kumar Mishra Aged About 56 Years R/o Behind Telecom Office, Sunder Nagar, Raipur, District - Raipur (C.G.) 1.2 - Miss Ritu Mishra D/o Late Shri Krishna Kumar Mishra Aged About 50 Years R/o Behind Telecom Office, Sunder Nagar, Raipur, District - Raipur (C.G.) ... Appellants versus 1. Rameshwer S/o Late Banshuram Aged About 26 Years R/o Behind Forest Department Depot, Kumharpara, Vrindavan Garden, Jagdalpur C.G. 2. Ku. Vidya D/o Late Banshuram Aged About 21 Years R/o Behind Forest Department Depot, Kumharpara, Vrindavan Garden, Jagdalpur C.G. 3. Ku. Nisha D/o Late Banshuram Aged About 20 Years R/o Behind Forest Department Depot, Kumharpara, Vrindavan Garden, Jagdalpur C.G. 4. Smt. Dayamani (Died And Deleted) As Per Honble Court Order Dated 18- 10-2024. 5. State Of Chhattisgarh Thru- Collector, Bastar, Jagdalpur, Distt. Jagdalpur C.G. ... Respondents For appellants : Mrs. Deepali Pandey, Advocate. For Respondents 1 to 3 : None though served. For Respondent/State : Mr. Kalpesh Ruperal, Panel Lawyer. 2 (Hon’ble Mr. Justice Narendra Kumar Vyas) Order on Board 17/06/2025 1. The appellants have filed this second appeal under Section 100 of the Code of Civil Procedure being aggrieved by the judgment and decree dated 15- 5-2014 passed by the learned Second Additional District Judge, Bastar at Jagdalpur in Civil Appeal No 19-A/2012 by which the suit filed by the appellants has been dismissed affirming the judgment dated 27-3-2006 passed by the Second Civil Judge, Class II, Jagdalpur in Civil Case No. 35- A/2005. 2. This appeal has been admitted for hearing on 25.04.2023 on the following substantial question of law:- “Whether finding of the Courts below holding that the suit as framed and instituted is barred by time under Article 65 of the Indian Limitation Act, 1963, even in absence of recording a finding that the possession of the defendant- Banshuram (since deceased now represented by his legal representatives namely Rameshwar and others) has become adverse to her (plaintiff), is perverse?” 3. The brief facts of the present case are that:- (A) The appellant/plaintiff purchased a plot bearing Survey No. 2/5, ad- measuring 42853 sq ft., Municipal area Kumharpara, Vrindavan Garden behind Forest Depot, Jagdalpur and sheet No.107, Plot No.1/42, basic plot No. 1, ad-measuring 43568 sq ft. from Smt. Vedvati through a registered sale deed on 16.10.1978 and took possession of the suit property. From 1978 to 1992, she was staying in Raipur. In the year 1992, she moved to Jagdalpur and came to know that the defendant No.1 had encroached over 500 sq. ft. of land having Survey No. 2/5, thereafter; she moved an application for demarcation, which was conducted on 22.06.1992 by the revenue authorities. In the demarcation report, it was 3 found that defendant No.1 encroached upon the 500 sq. ft. of land belonging to the plaintiff. (B) On 01.03.1993, a legal notice was issued, and thereafter, an application under Section 250 of the Land Revenue Code was moved before the Tehasildar and the same was rejected on 26.10.1995 on the ground that the application was not moved within the limitation period of 12 years, thereafter, she filed a civil suit for declaration of title and vacant possession of the suit property. ( C ) Defendant No./1 filed the counter claim and claimed right over the suit property on the basis of adverse possession. He specifically stated that he had encroached over 500 sq. ft. of Survey No.2/5 and raised construction over it, which was within the knowledge of everyone including the plaintiff. It is further pleaded that he was in possession for 25 years and thus, perfected the right over the property according to the law of adverse possession. It was also stated that the plaintiff had not paid the requisite Court Fees. (D) The learned trial Court framed various issues and held that the plaintiff has affixed the requisite Court Fees and the Court has jurisdiction to hear the matter. The plaintiff is not the sole owner of the suit property detailed in the map appended to the plaint, and she is also not entitled to get vacant possession of that part of the property. The learned trial Court further held that defendant No.1 could not prove that he had perfected his title by the law of adverse possession and ultimately dismissed the counter claim of defendant No.1. (E) An appeal was preferred by the plaintiff and the learned lower appellate Court dismissed the appeal on the ground that the plaintiff did not institute the civil suit within a period of 12 years and recorded its finding that from the averments of the plaint, it is apparent that defendant 4 No.1 was in possession on the part of the suit property from 1978 to 10.05.1999. Being aggrieved with the judgment and decree passed by both the Courts below the plaintiff/appellant has preferred this second appeal which has been admitted on the aforesaid substantial question of law. 4. Learned counsel for the appellant would submit that the plaintiff purchased the suit property through a registered sale deed dated 16.10.1978 from Smt. Vedvati and she was in possession. It is further argued that in the year 1992, when the plaintiff visited Jagdalpur, she found encroachment of 500 sq. ft. over survey No.2/5 and thereafter, she moved an application for demarcation. It is further submitted that though defendant No.1 has taken the plea of adverse possession in the written statement, nowhere it is stated that when the plaintiff came to possession of that part of the suit property and whether this fact was within the knowledge of the plaintiff or not. The possession of the property must be continuous and uninterrupted. The occupation must be hostile and adverse to the interest of the true owner, and take place without his consent and in the absence of such pleadings; it cannot be held that the suit of the plaintiff was time barred. She argued that in the year 1992, the plaintiff came to know about illegal encroachment and immediately thereafter she moved an application for demarcation and also moved an application under Section 250 of the Land Revenue Code, and after the rejection of the said application, she filed the Civil Suit, therefore, findings recorded by the Courts below that suit filed by the plaintiff is time barred, are erroneous and contrary to the law. 5. Per contra, learned State counsel opposing the submissions made by the learned counsel for the appellant has supported the judgment passed by the learned Courts below. 5 6. I have heard learned counsel appearing for the parties and perused the records. 7. From perusal of the records, it is quite vivid that a counter claim filed by the defendant No.1 seeking relief of title and ownership over the suit property on the basis of adverse possession, has been dismissed and the same has been affirmed by the lower appellate Court. The Civil Suit filed by the appellants seeking vacant possession and title of the property has also been dismissed by the learned Courts below on the ground that the suit was not filed within limitation. 8. From perusal of the pleadings and averments of the plaint, it is quite vivid that in the year 1992, when the plaintiff visited Jagdalpur, she found illegal encroachment by the defendant No.1 over the suit property. The averments made in the plaint by the plaintiff have not been denied. The learned Courts below have dismissed the suit of the plaintiff on the ground that though the plaintiff purchased the suit property on 16.10.1978, she never visited Jagdalpur and never remained in possession of the suit property, whereas, defendant No.1 and other persons raised construction on the land in question. It is further observed that the plaintiff ought to have filed a civil suit seeking relief of possession within the period of 12 years according to the provisions of Article 65 of the Limitation Act, 1963. The learned trial Court has not allowed the counter claim filed by defendant No.1, therefore, there is no finding that defendant No.1 perfected his title over the suit property according to the law of adverse possession. 9. The Courts below have not stated anywhere from what date the period of 12 years is to be reckoned, though there is provision to claim the possession within a period of 12 years from the date of dispossession. The plaintiff has categorically pleaded in the plaint that in the year 1992 when she visited Jagdalpur, she found encroachment over Survey No.2/5, 6 immediately thereafter, she filed an application for demarcation and in the demarcation report, it was disclosed that defendant No.1 encroached over 500 sq. ft. land. Thereafter, the plaintiff filed an application under Section 250 of the Land Revenue Code and after its rejection, filed a civil suit. Thus, from the date of knowledge i.e. from 22.06.1992, the suit was filed on 10.05.1999. 10. Section 5 of the Specific Relief Act, 1963 deals with the recovery of specific immovable property which reads as under:- “5. Recovery of specific immovable property.—A person entitled to the possession of specific immovable property may recover it in the manner provided by the Code of Civil Procedure, 1908 (5 of 1908).” 11. This issue has come up for consideration before the Hon’ble Supreme Court in the matter of Somnath Barman v. Dr. SP Raju reported in AIR 1970 SC 846 and Smt. Gitarani Paul v. Dibyendra Kundu Alias Dibyendra reported in AIR 1991 SC 395 wherein the Hon’ble Supreme Court held that as long as the plaintiff is able to substantiate and establish that he is the lawful and registered owner of the suit lands and the title vests in him, specific details of his dispossession need not be proved and that a decree on the basis of the title can follow if the suit is filed within the period of limitation. 12. In the present case, the plaintiff purchased suit land on 16.10.1978 and possession was also handed over to her. She has categorically stated that when the suit property was purchased, there was no encroachment, and in the year 1992 when she visited Jagdalpur, she found encroachment over her land and immediately thereafter she moved an application for demarcation. The revenue authorities conducted demarcation on 22.06.1992 thereafter she came to know that defendant No. 1 has encroached over 500 sq. ft. of land and then legal notice was served upon 7 defendant No.1. The plaintiff filed an application under Section 250 of the Land Revenue Code and the same was rejected on 26.10.1995. Thereafter, she filed a suit on 10.05.1999. Though defendant No.1 in para 4 has stated that prior to 16.10.1978, he had raised construction over 500 sq. ft. of land belonging to the plaintiff, but no witness was examined by defendant no. 1 to substantiate the pleadings made in the written statement. The plaintiff further stated in para-4 that on 22.06.1992, after demarcation, she came to know about encroachment over 500 sq. ft. of land. 13. The learned Courts below in absence of appropriate evidence turned down the counter claim of defendant No.1 and held that defendant No.1 could not prove his title and ownership over 500 sq. ft. land on the basis of adverse possession. According to the findings recorded by the learned Courts below, none of the parties was found in possession. In such a situation, the maxim ‘possession contra omnes valet praeter eur cui ius sit possessionis’ (he that hath possession hath right against all but him that hath the very right) becomes applicable to the present matter. 14. In the matter of Shivshankara and another v. H. P. Vedavyasa Char reported in 2023 LiveLaw (SC) 261, while dealing with a similar issue the Hon’ble Supreme Court in para 30 held as under:- “30. It is evident that on a careful consideration of the available pleadings of the defendants, the High Court held that they did not disclose their defence in their written statement and at the same time did not even contend therein that they are in possession of the suit property. According to us, in such circumstances, when the facts disclose no title in either party, at the relevant time, prior possession alone decides the right to possession of land in the assumed character of owner against all the world except against the rightful owner. In that context, it is worthy to refer to the maxim ‘Possessio contra omnes valet praeter eur cui ius sit possessionis’ (he that hath possession hath right against all but him that hath the very right)”.” 8 15. Again Hon’ble the Supreme Court in case of Vasantha (dead) through legal representative vs. Rajalakshmi alias Rajam (dead) through legal representatives, reported in (2024) 5 SCC 282 has observed in para 40 of its judgment regarding plea of adverse possession which reads as under: “40. In Saroop Singh v. Banto, reported in (2005) 8 SCC 330 (two-Judge Bench), this Court observed that Article 65 states that the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. Further relying on Karnataka Wakf Board v. Union of India reported in (2004) 10 SCC 779 (two-Judge Bench), it observed that the physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases related to adverse possession. Plea of adverse possession is not a pure question of law but a blend of fact and law. Therefore, 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) 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 prove his adverse possession”. 16. From the above discussion, it is quite vivid that the possession was handed over to the plaintiff after registration of the sale deed dated 16.10.1978, therefore, it may be presumed that she remained in possession till 1992 and she came to know about encroachment after getting demarcation report dated 22.06.1992, thereafter she instituted a civil suit on 10.05.1999, which cannot be held time-barred. The findings recorded by the learned Courts below with regard to limitation against the plaintiff are perverse and contrary to the facts and evidence available on the record. Consequently, the appeal succeeds and the judgments passed 9 by the learned Courts below are hereby set aside. Consequently, the instant appeal is allowed and the substantial question of law is answered in the affirmative in favour of the plaintiff. 17. A decree be drawn accordingly. Sd/- (Narendra Kumar Vyas) JUDGE Raju RAVVA SATYANARAYANA RAJU Digitally signed by RAVVA SATYANARAYANA RAJU Date: 2025.07.28 18:12:45 +0530