When the khasar entries are manipulated and doubtful – no adverse possession be claimed If the plaintiff’s possession itself originated in 1960­1961 it is difficult to appreciate how the Khasra entries in its name came to be made in the very same year. Section 115 of the Code provides that if the Tehsildar finds that a wrong or incorrect entry has been made in the land records prepared under Section 114 by an officer subordinate to him, he shall direct necessary changes to be made therein in red ink after making such enquiry from the person concerned as he may deem fit after due notice. The plaintiff led no evidence whatsoever when the application for correction in the khasra entry was made and that the original land owner was heard before the corrections were made. The entries in the name of the purchaser pursuant to the sale deed dated 11.10.1972 are in blue ink. The corrections in the khasra entry, the sheet anchor of the respondents claim therefore remains unexplained and doubtful.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 1090 OF 2008
BRIJESH KUMAR AND ANOTHER …APPELLANT(S)
VERSUS
SHARDABAI (DEAD) BY LRS. AND OTHERS …RESPONDENT(S)
WITH
CIVIL APPEAL NO(s). 1091 OF 2008
RAMAN LAL AND OTHERS …APPELLANT(S)
VERSUS
BHAGIRATH (DEAD) THR. LRS.
AND OTHERS …RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
The appellants are aggrieved by the order allowing the
plaintiff’s second appeal. The High Court reversed the order of
the First Appellate Court and restored the order of the Trial Court
decreeing the plaintiff’s suit for adverse possession.
1

  1. The suit lands comprise of 4 out of 6 Biswas of land
    situated in Survey No. 493 of Patwari Halka No.76 at VillagePurani Chhabani, Guna. The Original land owners were Mool
    Chand and Kashi Ram. The suit lands were sold to defendant
    no.9 Urmila Devi by registered sale deed dated 11.10.1972. By
    two separate registered sale deeds dated 22.08.1989 she sold an
    area of 3414.4 square feet each to the appellants in both the
    appeals. Possession was handed over and constructions raised
    by them. The plaintiff Matadin then filed Suit No. 45­A/1995 on
    28.08.1990 claiming adverse possession over the suit lands
    relying on Khasra entries for 1960­1961. The plaintiff also sought
    a declaration of nullity against the sale deeds executed by the
    original land owners and subsequent thereto. The sole plaintiff
    Matadin expired on 26.05.1994. An amendment application was
    subsequently filed by his legal heirs on 21.04.1995 contending
    that Matadin had come in possession of the suit lands after the
    original land owners Moolchand and Kashi Ram had failed to
    return his bullocks and agricultural implements. The Civil Judge
    Class I, Guna decreed the suit holding that the plaintiff had
    perfected his title by continuous, hostile and uninterrupted
    possession for more than 12 years adverse to that of the original
    2
    land owners, and that the sale deeds were a nullity. Regular Civil
    Appeal 19­A of 1996 preferred by the appellants was allowed
    holding that the Trial court had overlooked documentary
    evidence on record to arrive at an erroneous conclusion of
    adverse possession on basis of oral evidence only. The second
    appeal by the plaintiff was subsequently allowed by the
    impugned order holding that the conclusions of the first appellate
    court were erroneous, restoring the order decreeing the suit.
    Thus, the present appeal.
  2. Shri Manoj Prasad, learned senior counsel appearing for the
    appellants, submitted that the findings of facts by the first
    appellate court are final. The High Court in a second appeal
    ought not to have reappraised the evidence to arrive at a different
    conclusion, without any finding of perversity. The plaintiff never
    acquired title by adverse possession as the original owner sold
    the lands to Urmila Devi before expiry of twelve years. The
    purchaser had come into possession, raised certain
    constructions, and resold part of the lands to the appellants who
    consequently came into possession also. The original owners had
    3
    sought possession from the plaintiff in 1963­1964 also which was
    declined. The plaintiff never established the origin of his
    possession. The amendment of the plaint was an afterthought.
    The Khasra entries for 1969­1973 show Urmila Devi in
    possession of the lands. In 1974­1978, the Khasra entries again
    show Urmila Devi as the landlord. The Khasra entries for 1960­
    1961 and 1974­1978 showing possession of the plaintiff were
    interpolations in red color ink, while the entries in the name of
    Urmila Devi after purchase were made in blue color ink. Hitesh
    Kumar and Hemraj, the son and nephew respectively, of the
    plaintiff were clerks in the collectorate. They were suspended for
    making false entries, followed by departmental enquiry and
    criminal prosecution. The Court Commissioner had also reported
    possession having been transferred pursuant to the sale deed.
    The plaintiff had filed an objection after which the Court
    Commissioner had again inspected the disputed land and filed
    further report in favour of the appellants. All these have not at
    all been considered by the High Court. Reliance was placed on
    M. Venkatesh & Ors. vs. Bangalore Development Authority
    & Ors., (2015) 17 SCC 1, to contend that the adverse possession
    4
    could be proved only when possession was peaceful, open,
    continuous and hostile.
  3. Shri N.K. Jain, learned senior counsel, adopted the same
    arguments on behalf of the appellants in Civil Appeal No. 1091 of
    2008.
  4. Shri Puneet Jain, learned counsel for the respondents,
    submitted that the plea of adverse possession was taken in the
    original plaint. No new fact was sought to be introduced by way
    of amendment. Relying on Section 117 of the Madhya Pradesh
    Land Revenue Code (hereinafter referred to as the “Code”), it was
    submitted that there is a presumption with regard to the
    correctness of the Khasra entries regarding possession of the
    plaintiff. It therefore establishes the foundation of a claim for
    adverse possession. At no point of time, the original land owner
    filed any application for correction under Section 116 of the Code
    raising any dispute. The finding of the appellate court with regard
    to manipulations in the Khasra entries, no more survive after
    their exoneration in the departmental proceedings and acquittal
    in the criminal case. The plaintiff was in continuous
    5
    uninterrupted possession, for over 12 years, hostile to the
    original land owner. The plaintiff was never dispossessed in
    1972 after any sale. Mere execution of a sale deed does not
    tantamount to dispossession. The claim for possession stated to
    have been reiterated in 1963­1964 by the original land owner
    confirms the continuous uninterrupted hostile possession of the
    plaintiff. Reliance was placed on Dagabai Fakirmahomed vs.
    Sakharam Gavaji & Ors., AIR 1948 BOM 149, Wontakal
    Yalpi Chenabasavana Gowd vs. Rao Bahadur Y.
    Mahabaleshwarappa & Ors., AIR 1954 SC 337, M.V.S.
    Manikayala Rao vs. M. Narasimhaswami & Ors., AIR 1966
    SC 470, to submit that the onus lay on the defendants to
    establish that the possession of the plaintiff was interrupted at
    any point of time, to defeat the claim for adverse possession and
    which they failed to do.
  5. We have considered the submissions on behalf of the
    parties. The plaintiff in a suit filed in 1990, asserted possession
    of the lands for past 30 years prior to the filing of the suit, relying
    on the Khasra entries for 1960­1961 as the foundation of the
    6
    claim to adverse possession. The nature and origin of the claim
    for possession was absent in the pleadings. In his evidence the
    respondent deposed that since the original land owner had failed
    to return his bullocks and agricultural equipments borrowed in
    1958­1959, he had taken possession of the lands in 1960­1961.
    The original plaintiff expired on 26.05.1994. The respondents,
    who are his legal heirs, then filed an application on 21.04.1995
    to amend the pleadings to bring it in accord with the evidence. If
    the plaintiff’s possession itself originated in 1960­1961 it is
    difficult to appreciate how the Khasra entries in its name came to
    be made in the very same year. Section 115 of the Code provides
    that if the Tehsildar finds that a wrong or incorrect entry has
    been made in the land records prepared under Section 114 by an
    officer subordinate to him, he shall direct necessary changes to
    be made therein in red ink after making such enquiry from the
    person concerned as he may deem fit after due notice. The
    plaintiff led no evidence whatsoever when the application for
    correction in the khasra entry was made and that the original
    land owner was heard before the corrections were made. The
    entries in the name of the purchaser pursuant to the sale deed
    dated 11.10.1972 are in blue ink. The corrections in the khasra
    7
    entry, the sheet anchor of the respondents claim therefore
    remains unexplained and doubtful.
  6. At this stage, it is crucial to notice the findings of the
    appellate court that the son and nephew of the Plaintiff­Matadin
    were working as clerks in the collectorate. They were proceeded
    against departmentally and in a criminal prosecution regarding
    the corrections made in red ink in the Khasra entries
    incorporating the name of the plaintiff as being forged and
    fictitious. The fact that they may have been acquitted in the
    criminal prosecution on a benefit of doubt, or that exoneration
    may have been ordered in the departmental proceeding based on
    procedural irregularity, are not considered relevant as findings in
    a civil suit are to be based on preponderance of probabilities
    considering the nature of evidence available.
  7. After purchase of the lands by Urmila Devi, her name was
    entered in the Khasra as landlord during 1969­1973 along with
    possession as also during 1974­1978. Once it is concluded that
    the red ink entries regarding corrections in the Khasra showing
    8
    possession of the plaintiff are suspicious, based on fraud and
    forgery, the recordings in the name of the plaintiff are irrelevant.
    The name of Urmila Devi has also been shown in the Khasra
    entries for 1984­89 in blue ink.
  8. The conclusion of the first appellate court with regard to
    possession of the lands being with Urmila Devi after purchase
    considered along with the report of the court commissioner, and
    who subsequently sold it to the appellants on basis of a
    registered sale deed, in our opinion called for no interference.
    The finding that the appellants had admitted the possession of
    the plaintiff­respondent on account of the failure of the original
    land owners to return his bullocks and agricultural equipments
    is held to be perverse.
  9. The plaintiff claimed adverse possession from 1960­1961.
    The lands were sold to Urmila Devi before the expiry of 12 years
    on 11.10.1972 and she was put in possession. The plaintiff’s
    claim of uninterrupted possession for twelve years was therefore
    unsustainable as completely devoid of substance.
    9
  10. The High Court in second appeal arrived at a perverse
    finding on the same evidence that Urmila Devi never acquired
    possession and thus the plaintiff had established adverse
    possession after twelve years. The report of the court
    commissioner also finds no discussion by the High Court. It also
    failed to deal with the suspicious Khasra entries in red ink,
    claimed by the plaintiff in proof of possession. Likewise, it did
    not consider that the origin of the claim of the plaintiff itself
    never stood established in absence of necessary pleadings which
    was sought to be introduced after the plaintiff’s evidence, as an
    afterthought.
  11. At this juncture it is necessary to notice that in Civil Suit
    No. 97­A of 1992 filed by the appellants in Civil Appeal No.1091
    of 2008, and who had purchased the lands adjacent to the suit
    lands from Urmila Devi, against Hemraj, the nephew of plaintiffMatadin, alleging encroachment of the lands purchased by him,
    the suit was decreed, and the appeals preferred by Hemraj was
    dismissed up to this court. The conclusion of the High court that
    there was no evidence with regard to the dispossession of the
    10
    respondent­plaintiff is clearly unsustainable as he never came
    into possession in view of the clear finding with regard to fraud
    and forgery in the Khasra entries.
  12. Adverse possession is hostile possession by assertion of a
    hostile title in denial of the title of the true owner as held in
    M.Venkatesh (supra). The respondent had failed to establish
    peaceful, open and continuous possession demonstrating a
    wrongful ouster of the rightful owner. It thus involved question of
    facts and law. The onus lay on the respondent to establish when
    and how he came into possession, the nature of his possession,
    the factum of possession known and hostile to the other parties,
    continuous possession over 12 years which was open and
    undisturbed. The respondent was seeking to deny the rights of
    the true owner. The onus therefore lay upon the respondent to
    establish possession as a fact coupled with that it was open,
    hostile and continuous to the knowledge of the true owner. The
    respondent­plaintiff failed to discharge the onus. Reference may
    also be made to Chatti Konati Rao & Ors. vs. Palle Venkata
    11
    Subba Rao, (2010) 14 SCC 316, on adverse possession observing
    as follows :
    “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. A person pleading adverse possession
    has no equities in his favour as he is trying to defeat
    the rights of the true owner and, hence, it is for him to
    clearly plead and establish all facts necessary to
    establish adverse possession. The courts always take
    unkind view towards statutes of limitation overriding
    property rights. The plea of adverse possession is not a
    pure question of law but a blended one of fact and law.”
  13. In view of our conclusions, the precedents cited by the
    respondents do not merit consideration. The order of the High
    Court is held to be unsustainable and is set aside. The order of
    the first appellate court dated 08.08.1997 is restored and the suit
    is dismissed.
    12
  14. The appeals are allowed.
    ………………………….J.
    [NAVIN SINHA]
    ………………………….J.
    [INDIRA BANERJEE]
    NEW DELHI
    OCTOBER 01, 2019
    13