claim of adverse possession

Supreme Court: Appellants filed an appeal against the judgment and decree passed by the Allahabad High Court (‘High Court’) allowing the appeal and setting aside the decree passed by the Civil Judge of Benares in favour of appellants. Appellants had originally filed a suit for recovery of possession of property and permanent injunction against respondents. The Division Bench of M.C. Mahajan and N.H. Bhagwati*, JJ., held that appellants proved their title by adducing evidence showing continuity in their title. The Supreme Court opined that documents such as khasra were signed and counter-signed by the competent authorities, hence, would become eligible to be admitted as evidence.


Appellants filed the suit out of which this appeal arose against the respondents for recovery of possession of Plots Nos. 886/2, 885/2 and 884 situated in Mohalla Hadha, Mauza Kashipur, Benares by demolition of walls and other constructions built on them by the respondents, for permanent injunction restraining them from using the doors on the northern wall for ingress and egress to their premises from over the land in suit, for a further injunction restraining the respondents from interfering with appellants’ right to build a wall on the suit land, and for costs. Respondent 1 denied appellants’ claim contending that she was the owner of the suit land, that appellants’ claim was barred by the law of limitation and that she had in any event acquired a right of easement over the suit land. Respondent 1 contended that the suit land was her ancestral property. She contended that Plots Nos. 885/2 and 884 were her ancestral property but Plot No. 886/2 had been acquired by her by adverse possession.

The Trial Judge held that appellants had proved their title to the suit land and thus decreed appellants’ suit. Thereafter, Respondent 1 appealed to the High Court and the same was allowed and appellants’ suit was dismissed with costs. Appellants obtained leave to appeal to the Federal Court against the High Court’s decision.

Appellants traced their title to the suit land to one Mirza Rahmatullah Beg who was a leading lawyer of Benares and a “rais”. Appellants relied upon entries in khewat and jamabandi for 1291 Fasli i.e., 1884 A.D. in which these plots were shown as standing in the name of Mirza Rahmatullah Beg. Mirza Rahmatullah Beg had died and his son Asadullah Beg, was awarded compensation monies in respect of these plots. Asadullah Beg died leaving behind his wife Sultan Jehan Begum and his sisters, Aisha Khanum and Aulia Khanum. Sultan Jehan Begum relinquished her right, title and interest in properties left by Asadullah Beg and Aisha Khanum and Aulia Khanum became owners of properties left by Mirza Rahmatullah Beg. Aisha Later, Pandit Umakant Pande became full owner of the suit land, and he further sold the suit land to Satya Charan Mullick, and the property devolved upon appellants on Satya Charan Mullick’s death.

Respondent 1 contended that khewat and jamabandi of the year 1884 were not documents of title and they could not be relied upon by appellants to show that the suit land belonged to Mirza Rahmatullah Beg. Respondent 1 submitted that Plots Nos. 884 and 885/2 were her ancestral properties by tracing her title to Raja Kalka Prasad, who was alleged by her to be her grandfather. Respondent 1 contended that this property was identical with her property in the northern wall of which the door and windows had been opened by her and which were the subject-matter of the complaint by appellants.

Analysis, Law, and Decision

The Supreme Court noted that the suit land was vacant land with no building or superstructure thereupon and even though an attempt was made at one time by Pandit Umakant Pande to dig pits in the ground for considering whether he should build upon the land and he also stored some stone slabs there, he ultimately decided not to build on the site and the same continued vacant. The Supreme Court also noted that the allegations regarding the acts of possession on Respondent 1’s part were denied by appellants. The Supreme Court opined that even if Respondent 1 might have put the suit land to use at the interval, these acts were not sufficient to constitute any adverse possession of the suit land by her or even a prescriptive right of easement over the same. These acts of possession, if at all, were stray acts exercised by her at long intervals and were rare. It was clear therefore that neither adverse possession, nor any prescriptive right of easement could be claimed by Respondent 1 on the suit land by reason of such acts of possession.

The Supreme Court stated that the onus of establishing that they were the owners of the suit land was clearly on appellants and they must succeed on the strength of their own title and not on the infirmity in the title of Defendant 1.

The Supreme Court opined that khewat and jamabandi of 1291 Fasli i.e., 1884 A.D, were not documents of title by themselves, nor could they form the root of the appellants’ title. The Supreme Court noted that khewat showed that the pattidars of Serial No. 715 were Mirza Rahmat Ullah Beg and Mirza Jalal Uddin Beg Mughal and the entire area of land standing in their names was 7 big. 3 bis. 3 dhrs and jamabandi showed that this Khewat No. 715 comprised inter alia of Plot No. 885 admeasuring 13 bis. 12 dhrs., Plot No. 886 admeasuring 12 bis. 13 dhrs. and Plot No. 884 admeasuring 6 dhrs. The Supreme Court opined that this evidence was sufficient to establish the identity of Plots Nos. 885, 886 and 884 as of the ownership of Mirza Rahmat Ullah Beg and Mirza Jalal Uddin Beg in the year 1884.

The Supreme Court observed that when an extract from the khasra was applied for, it would only be prepared by the patwari and countersigned by the Kanungo who was his immediate superior officer. The Supreme Court opined that they were a public document prepared as well as countersigned by the proper officers and thus there was no reason why the same should not have been admitted by either the Trial Court or the High Court. The Supreme Court opined that this extract from the khasra was enough to establish the identity of the property acquired with Plots Nos. 885 and 886 which belonged to Mirza Rahmatullah Beg and which on his death devolved upon his son and heir, Mirza Asad Ullah Beg.

The Supreme Court referred to the deed of relinquishment dated 6-6-1906 and the arbitration award dated 6-4-1910 and opined that these documentary evidence adduced by appellants were sufficient to establish their title to the suit land and appellants succeeded in establishing their title tracing it to Mirza Rahmat Ullah Beg right up to 1884.

The Supreme Court held that the Trial Court rightly concluded that Respondent 1 had failed to establish her title to the suit land and the High Court was in error when it held otherwise. Thus, the Supreme Court concluded that appellants had succeeded in establishing their title to the suit land. The Supreme Court allowed the appeal and set aside the decree passed by the High Court and restored the decree passed by the Trial Court in appellants’ favour with costs throughout.

[Krishna Dhan Mullick v. Ummatul Zohra Begum, (1952) 2 SCC 468, decided on 13-11-1952]

Ed. Note: Adverse Possession

Adverse possession means when a tenant possesses the property of the owner when they are not legally entitled to do the same overtly i.e., without any attempt regarding concealment from the owner. The doctrine of adverse possession states that when a person holds the property owned by any other individual for an uninterrupted period of more than 12 years, they would become the lawful owner of the land. Articles 64 and 65 of the Limitation Act, 1963 lay down the onus on the tenant to prove the dispossession of the property for 12 years. At the same time, the burden to prove the period of adverse possession within 12 years falls on the landlord.

Advocates who appeared in this case :

For the Appellants: Krishnaswami Iyengar, Senior Advocate (N.D. Pant, Advocate, with him)

For the Respondents: Gopi Nath Kunzru, Senior Advocate (Shaukat Hussain and Ishaq Ahmad, Advocates with him)

*Judgment authored by: Justice N.H. Bhagwati

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