1 2025:CGHC:57651 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 378 of 2018 1 - Vijendra Prasad Sahu S/o. Late Gahru Ram Sahu, Aged About 57 Years Caste Teli, Village- Mahora, P. S. Patna, Tahsil- Baikunthpur, District Korea, Chhattisgarh., District : Korea (Baikunthpur), Chhattisgarh ... Appellant(s) versus 1 - Mohd. Sarfuddin S/o. Ramgulam Rasul @ Gulam Rasul, Aged About 67 Years Caste- Pathan (Musalman), Resident Of Village- Patna, P. S. Patna, Tahsil- Baikunthpur, District Korea, Chhattisgarh. Presently Resided At Village Ledari, P. S. And Post- Jhagrakhand, Tahsil- Manendragarh, District Korea, Chhattisgarh., District : Korea (Baikunthpur), Chhattisgarh 2 - Mohd. Aziz, S/o. Ramgulam Rasul @ Gulam Rasul, Aged About 60 Years Caste- Pathan (Musalman), Resident Of Village- Patna, P. S. Patna, Tahsil- Baikunthpur, District Korea, Chhattisgarh. Presently Resided At Village Ledari, P. S. And Post- Jhagrakhand, Tahsil- Manendragarh, District Korea, Chhattisgarh., District : Korea (Baikunthpur), Chhattisgarh 3 - Mohd. Javed, S/o. Ramgulam Rasul @ Gulam Rasul, Aged About 56 Years Caste- Pathan (Musalman), Resident Of Village- Patna, P. S. Patna, Tahsil- Baikunthpur, District Korea, Chhattisgarh. Presently Resided At Village Ledari, P. S. And Post- Jhagrakhand, Tahsil- Manendragarh, District Korea, Chhattisgarh., District : Korea (Baikunthpur), Chhattisgarh 4 - Mohd. Kasim, S/o. Ramgulam Rasul @ Gulam Rasul, Aged About 45 Years Caste- Pathan (Musalman), Resident Of Village- Patna, P. S. Patna, Tahsil- Baikunthpur, District Korea, Chhattisgarh. Presently Resided At Village Ledari, P. S. And Post- Jhagrakhand, Tahsil- Manendragarh, District Korea, Chhattisgarh., District : Korea (Baikunthpur), Chhattisgarh 5 - Smt. Wafatan Bibi, D/o. Ramgulam Rasul @ Gulam Rasul, Caste- Pathan (Musalman), Resident Of Village- Patna, P. S. Patna, Tahsil- Baikunthpur, District Korea, Chhattisgarh. Presently Resided At Village Ledari, P. S. And Post- Jhagrakhand, Tahsil- Manendragarh, District Korea, Chhattisgarh., District : Korea (Baikunthpur), Chhattisgarh 6 - Mohd. Noor Mohd. S/o. Late Lal Mohd. Aged About 65 Years Caste Pathan (Musalman) Resident Of Village- Patna, P. S. Patna, Tahsil- VED PRAKASH DEWANGAN Digitally signed by VED PRAKASH DEWANGAN Date: 2025.12.10 10:56:41 +0530 2 Baikunthpur, District Korea, Chhattisgarh. Presently Resided At Village- Rankhurd, P. S. , Post And Tahsil- Ambikapur, District Surguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh 7 - State Of Chhattisgarh, Through The District Collector Korea, Chhattisgarh, Office Chhindand, Baikunthpur, District Korea, Chhattisgarh., District : Korea (Baikunthpur), Chhattisgarh ... Respondent(s) (Cause title taken from Case Information System) For Appellant(s) : Mr. Dashrath Kushwaha, Advocate For Respondent No.7/State : Mr. Arvind Dubey, Govt. Advocate Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board 26/11/2025 1. Heard on admission. 2. The appeal under Section 100 of the Code of Civil Procedure, 1908 has been filed by the appellant against the impugned judgment and decree dated 25.04.2018, passed by the Additional District Judge (FTC), Korea (Baikunthpur), in Civil Appeal No. 03A-2017, whereby the first appeal filed by the appellant has been dismissed and the judgment and decree dated 31.01.2017, passed by the 2nd Civil Judge Class-I, Baikunthpur, in Civil Suit No. 89A/2014 has been affirmed. 3. The plaintiff has filed a suit for declaration of title, permanent injunction, declaration of his adverse possession over the suit land, which is a part of Khasra No. 416/1, Area 0.014 hectare, situated at Village Patna, R.I. Circle Patna, Tahsil Baikunthpur, District Korea. 4. The plaintiff has filed a suit against the defendants with the pleadings that, the suit land was recorded in the name of defendants No. 1 to 6 3 in the revenue records and adjoining to the suit land, his other lands were situated, which is a part of Khasra No. 416/7 and 416/5. On 03.01.2000, one Smt. Halima Bibi had sold the suit land to the plaintiff for consideration of Rs. 10,500/- and an unregistered deed of transfer was executed on the said date and since then the plaintiff is in possession of the suit land. Since, the wife of the plaintiff was posted at District Surguja, the registered sale deed could not be executed with respect to the suit land and in between that period, Halima Bibi has died. It is also pleaded that the defendants No. 1 to 5 have executed their affidavit as a consent of the said transaction made by Smt. Halima Bibi. However, on 01.05.2014, the defendant No.6 has denied the right of Halima Bibi to alienate the suit land to the plaintiff, which gives cause of action to file the present suit. During the pendency of the suit, an amendment was made by the plaintiff in his plaint that on 27.09.2014, the defendants have executed their affidavit with respect to compromise between the parties and handed over to the plaintiff to file it before the learned trial Court, however subsequently they denied for compromise and claiming their own title over the suit property. 5. The defendants No. 1 to 4 have filed their written statement jointly and admitted the claim of the plaintiff that on 03.01.2000, Halima Bibi had executed a transfer deed in favour of the plaintiff and handed over the possession of the suit land to him. Halima Bibi was owner of the property pursuant to the partition effected in the family. The defendant No. 6 has also sold the land of his share bearing khasra No. 256, 257 and 532 and constructed a house at Ambikapur from 4 the sale consideration, and therefore, the defendant No. 6 has no right or title over the suit land and it was the property belongs to Halima Bibi, in which presently the plaintiff is in possession since 03.01.2000 from the date of its purchase. The land of khasra No. 416 have never sold by Halima Bibi to anyone and after her death, the defendants No. 1 to 5 are title holder of the same. 6. The defendant No. 5 has also filed her written statement separately and she too has admitted the claim of the plaintiff as per the written statement filed by the defendants No. 1 to 4. 7. The defendant No. 6 has also filed his written statement separately and also stated that, the plaintiff is in possession of the suit land since 03.01.2000 after its purchase from Halima Bibi. The defendant No.6 has no right or title over the land of khasra No. 416 and 255. On the basis of false information, his name has wrongly been recorded in the revenue records. 8. On the basis of the pleadings made by the parties, the learned trial Court has framed the following issues:- “1- म पट, . .म. पट, तहल ठप म त म ख ! 416/1 0.014 ह"ट" म # 03.01.2000 " आ% प ए ' त ल ()" " आ% प *+,% ए आ,%प+% ह-" . /-ष1 '2त " अ,% ह ? 2- , उत *त म " % म ' तग1 " 67 ई ष"%9 '2त " अ,% ह ? ३- " ; उ,<त म= > ?= अ ग ह ? 4- हत ए @ 5 5- '*तत अ,% A ह-" " उप>त * -B ह?” 9. The plaintiff has examined PW-1/Smt. Anita Sahu, PW-2/Rajkumar Singh, PW-3/Manoj Kumar, PW-4/Krishna Kumar Singh and PW-5/Vijendra Prasad Sahu (plaintiff) and relied upon the documents (Exhibit P-1 and P-2), which are the affidavits of Mohd. Aziz and Mohd. Kasim, Exhibit P-3, P-4 and P-5 are the revenue documents, Exhibit P-6 is an acknowledgment dated 03.01.2000, by which the suit land was sold to the plaintiff, Exhibit P-7 is an affidavit executed by Mohd. Sarfuddin, Mohd. Javed and Smt. Wafatan Bibi, Exhibit P-8 is an affidavit of Mohd. Sarfuddin, Exhibit P-9 is an affidavit of Mohd. Javed, Exhibit P-9A is an affidavit of Smt. Wafatan Bibi, Exhibit P-10 is an affidavit of Mohd. Kasim, Exhibit P-11 is an affidavit of Mohd. Aziz, compromise application between the parties is Exhibit P-12, Exhibit P-13 is the sale-deed executed in favour of Suresh Kumar Sahu by Mohd. Sarfuddin and Mohd. Javed, Exhibit P-14 is the sale- deed executed in favour of Smt. Deepa Sahu by Sarfuddin and Mohd. Javed, Exhibit P-15 to P-20 are the revenue records, Exhibit P-21 is the death certificate of Smt. Halima Bibi and Exhibit P-22 is an affidavit of Noor Mohd. 10. The learned trial Court, after appreciating the evidence laid by the plaintiff, considered that, the plaintiff could not prove his adverse possession over the suit property. The document (Exhibit P-6) is having the effect of an agreement and the possession over the suit property, pursuant to that agreement (Exhibit P-6), cannot be considered to be an adverse possession and it only considered to be a permissive possession. With respect to prove the adverse 6 possession, the plaintiff is required to plead and prove the specific date, from which he entered into possession of the property and continue in possession within the knowledge of the true owner of the property. 11. In the matter of “Karnataka Board of Wakf v. Government of India and others” 2004 (10) SCC 779, the Hon’ble Supreme Court has held in para 11 and 12 that:- "11. In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. 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. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See : S M Karim v. Bibi Sakinal AIR 1964 SC 1254, Parsinni v. Sukhi (1993) 4 SCC 375 and D N Venkatarayappa v. State of Karnataka (1997) 7 SCC 567). 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 of this nature. Plea of adverse possession is not a pure question of law but a blended one 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 7 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 true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Dr. Mahesh Chand Sharma v. Raj Kumari Sharma (1996) 8 SCC 128). 12. Plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. (See: S M Karim v. Bibi Sakinal AIR 1964 SC 1254). In P Periasami v. P Periathambi (1995) 6 SCC 523 this Court ruled that - "Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property." The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639 that is similar to the case in hand, this Court held: "4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right there under and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."" 8 12. The learned trial Court has considered the cases of “Achal Reddy v. Ramakrishna Reddiar and others” 1990 (4) SCC 706. The learned trial Court has also declined the claim of the plaintiff that Halima Bibi has executed a gift deed in his favour by saying that, since Halima Bibi has already sold the land to the plaintiff for the consideration of Rs. 10,500/- on 03.01.2000, there is no question of execution of gift deed in favour of the plaintiff. Both these documents are contrary and have a different context. Even the said gift deed was not signed by Halima Bibi. Further, the vendee getting the possession of the property under the deed of transfer dated 03.01.2000, and in such situation, he cannot claim adverse possession against the vendor. 13. The learned trial Court has also considered that, since in the document (Exhibit P-6), there was a consideration of Rs. 10,500/- with respect to the suit land, it cannot be said to be a gift deed, whereas it is also not the case of the plaintiff that, Halima Bibi has executed a gift deed in his favour, but it is the defendants, who pleaded in their written statement that, Halima Bibi has executed a gift deed in favour of the plaintiff. From the perusal of the document (Exhibit P-6), it is quite vivid that, it is not a gift deed, but it is allegedly a transfer of right on certain consideration, which cannot be considered to be a gift deed executed by Halima Bibi. 14. Since, the possession of the plaintiff over the suit land is on the basis of the document (Exhibit P-6), which amounts to be an agreement after payment of sale consideration, the possession of the plaintiff could be of permissive in nature, which can never be converted into 9 adverse possession, as has been held in the case of “Achal Reddy” (supra). 15. The issue of adverse possession is concurrently held by the learned courts below that, the plaintiff's possession cannot be considered to be adverse possession. The issue of adverse possession is a finding of fact, which has been concurrently recorded by the learned trial Court against the plaintiff. 16. In the matter of “State of Rajasthan and Others v. Shiv Dayal and Another” 2019 (8) SCC, 637, the Hon'ble Supreme Court held in paragraph 16 & 17 as under: "16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against b any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (See observation made by learned Judge, Vivian Bose, J., as his Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar para 43.) 17. In our opinion, if any one or more ground, as mentioned above, is c made out in an appropriate case on the basis of the pleading and evidence, such ground will constitute substantial question of law within the meaning of Section 100 of the Code." 17. Considering the aforesaid facts and circumstances of the case as well as the law laid down by the Hon’ble Supreme Court, this Court is of the considered opinion that, there is no question of law, much less the substantial question of law involved in the present appeal for its 10 determination, and accordingly, the second appeal devoid of merits and is dismissed without noticing to the other side. 18. Parties to bear their own costs. Sd/- (Ravindra Kumar Agrawal) Judge ved