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.

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.
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2. 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
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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.
3. 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
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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
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could   be   proved   only   when   possession   was   peaceful,   open,
continuous and hostile.
4. Shri N.K. Jain, learned senior counsel, adopted the same
arguments on behalf of the appellants in Civil Appeal No. 1091 of
2008.
5. 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
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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.
6. 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
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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.
7.  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.
8. 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.
9. 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. 
10. 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
11. 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. 
12. 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.
13. 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.”
14. 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.
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15.  The appeals are allowed.
…………...................J.
[NAVIN SINHA]
…………...................J.
[INDIRA BANERJEE]
NEW DELHI
OCTOBER 01, 2019
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