JUDGMENT : 1. The substantial questions of law involved, formulated and to be answered in the appeal preferred by defendants No.1 to 4 are as under:- “a. Whether the alleged original owners i.e. respondent Nos.5 to 7, were not having any right, title and possession over the suit property on the date of execution of sale deed dated 05.09.1955 (Ex.P-1) and therefore not competent to transfer such right? b. Whether both the Courts below were justified in holding that the respondents No.5 to 7 were competent to alienate the suit property to the plaintiffs?” 2. Substantial question of law No.(a) is re-framed as under: - “a. Whether the alleged original owners i.e. respondent Nos.5 to 7, were not having any right, title and possession over the suit property on the date of execution of sale deed dated 28.07.1955 (Ex.P-5) and therefore not competent to transfer such right?” (Parties hereinafter will be referred as per their status shown in the plaint before the trial Court.) 3. Original plaintiffs Birsai, Bandhuram, Ratiyaram and Aitwaram filed a suit for declaration of title and recovery of possession stating inter alia that they have purchased the suit land by registered sale deed dated 28-7-1955 (Ex.P-5) from defendants No.5 to 7 and obtained possession thereafter. It was further pleaded that on the application filed by the plaintiffs under Section 145 of the Code of Criminal Procedure, 1973, the Sub-Divisional Magistrate, Jashpur Nagar by order dated 20-5-1981 declared that defendants No.1 to 4 will remain in possession which was affirmed by the Sessions Judge, Raigarh in revision. It was pleaded that at the time of mutation of land pursuant to the sale deed Ex.P-5C, the father of defendants No.1 to 4 – deceased Daudu Sai was also present and he never opposed and the suit was filed stating that the cause of action arose upon the order of the Sub-Divisional Magistrate. 4. Defendants No.1 to 4 filed their joint written statement stating inter alia that the suit land was manwar land and was held by the grandfather of defendants No.1 to 4 – Late Shri Bhawanand Sai who was sikmi kharposdar in that land and after his death, his son Daudu Sai cultivated the suit land and thereafter, defendants No.1 to 4 are cultivating the suit land and are in possession of the suit land. Defendants No.5 to 7 had no right over the suit land and alternatively, they also pleaded that defendants No.1 to 4 have perfected their right by way of adverse possession and as such, the suit is liable to be dismissed. 5. Defendants No.5 to 7 took the stand that they have sold the land in favour of the plaintiffs and possession has also been delivered pursuant to the sale made by them. 6. The trial Court after appreciating oral and documentary evidence on record came to a specific conclusion that the suit land was sold by defendants No. 5 to 7 in favour of the plaintiffs by registered sale deed Ex.P-5C for a cash consideration of Rs. 25,000/- and transferred the title in their favour, and defendants No. 1 to 4 have not perfected their title by way of adverse possession over the suit land. The first appeal preferred by defendants No.1 to 4 against the judgment & decree of the trial Court was dismissed by the first appellate Court affirming the judgment & decree of the trial Court leading to filing of second appeal in which substantial questions of law have been framed by this Court which have been set-out in the opening paragraph of this judgment. 7. Mr. B.P. Gupta, learned counsel appearing for the appellants/defendants No. to 4, would submit that defendants No. 5 to 7 were not having any right, title and possession over the suit property on the date of execution of sale deed Ex.P-5C and therefore not competent to transfer the suit land owned by defendants No.1 to 4 and as such, no title was transferred in favour of the plaintiffs and both the Courts below are absolutely unjustified in holding that the plaintiffs were entitled for decree for declaration of title and delivery of possession. 8. On the other hand, learned counsel for the plaintiffs and seller/defendants, would support the impugned judgment and decree. 9. I have heard learned counsel for the parties and considered their rival submissions and also gone through the record with utmost circumspection. 10. 8. On the other hand, learned counsel for the plaintiffs and seller/defendants, would support the impugned judgment and decree. 9. I have heard learned counsel for the parties and considered their rival submissions and also gone through the record with utmost circumspection. 10. As per the plaint averment, the plaintiffs setup their plea on the basis of sale deed Ex.P-5C that they have purchased the suit land on the basis of sale deed from defendants No.5 to 7, whereas defendants No.1 to 4 claimed that the suit land was manwar land under the Wajibul-urj of Jashpur State C.P. and held and owned by their grandfather Late Bhawanand Sai who had been granted that land by the ruling chief of Jashpur State – Raja Bahadur Devsharan Singh Deo as a sikmi kharposdar, and their grandfather cultivated and remained in possession during his lifetime and after his death, their father Daudu Sai and presently, defendants No.1 to 4 are in possession and continuing cultivation. Alternatively, it was also pleaded that defendants No.1 to 4 have perfected their title by adverse possession over the suit land. The trial Court found the title of the plaintiffs established over the suit land and negatived the right of defendants No.1 to 4 based on sikmi kharposdar right alleged to have been in favour of their grandfather by the ruling chief of Jashpur State and further negatived the plea based on adverse possession taken alternatively by defendants No.1 to 4. 11. Admittedly and undisputedly, defendants No.1 to 4 did claim title based upon title of their grandfather, but also took the plea of ripening into their title by prescription i.e. acquisition of title by adverse possession which is the inconsistent plea taken by defendants No.1 to 4 in their written statement. 12. It is well settled law laid down by the Supreme Court in the matter of Firm Sriniwas Ram Kumar v. Mahabir Prasad AIR 1951 SC 177 that it is open to the parties to raise even mutually inconsistent pleas and if the relief could be founded on the alternative plea it could be granted, which has been followed in the matter of Arundhati Mishra (Smt) v. Sri Ram Charitra Pandey (1994) 2 SCC 29 . 13. 13. The question is, whether the plea based on title and adverse possession are mutually inconsistent and whether the defendant can be permitted to set up a plea based on title and simultaneously on same breath can be allowed to raise a plea of perfection of title by way of adverse possession. 14. The Supreme Court in Arundhati Mishra (Smt) (supra) has clearly held that the pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced and in that case, the Supreme Court further held that since his plea is based on his title, he never denounced his title nor admitted the title of the appellant. 15. Likewise, in the matter of L.N. Aswathama and another v. P. Prakash (2009) 13 SCC 229 , the Supreme Court relying upon its earlier decisions clearly held that the pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. It has been observed as under: - “17. … The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence. (Vide P. Periasami v. P. Periathambi (1995) 6 SCC 523 , Md. Mohammad Ali v. Jagdish Kalita (2004) 1 SCC 271 and P.T. Munichikkanna Reddy v. Revamma (2007) 6 SCC 59 .)” 16. In the matter of Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639 , it has been held that the pleas based on title and adverse possession both are mutually inconsistent and destructive. It has been observed as under: - "4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the (sale) agreement, he must disclaim his right thereunder 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 of his title by prescription nec vi, nec clam, nec precario (not by violence, not by stealth, not by permission). Since the appellant's claim is founded on Section 53-A (of the Transfer of Property Act, 1882), it goes without saying that he admits by implication that he came into possession of the 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." 17. In the matter of Karnataka Board of Wakf v. Government of India and others (2004) 10 SCC 779 , similar proposition has been struck by the Supreme Court and the principle of law rendered in Mohan Lal (supra) has been relied upon and it has been held as under:- “13. As we have already found, the respondent obtained title under the provisions of the Ancient Monuments Act. The element of the respondent's possession of the suit property to the exclusion of the appellant with the animus to possess it is not specifically pleaded and proved. So are the aspects of earlier title of the appellant or the point of time of disposition. Consequently, the alternative plea of adverse possession by the respondent is unsustainable. The High Court ought not to have found the case in their favour on this ground.” 18. Thus, following the principles of law laid down in the aforesaid judgments, I hold that the pleas of defendants No.1 to 4 based on title as well as on adverse possession are mutually inconsistent pleas setup by defendants No.1 to 4, as it appears from the record that the case of defendants No.1 to 4 as disclosed in the written statement is that their ancestor – grandfather Late Shri Bhawanand Sai was the title holder of the suit land as granted by the ruling chief of Jashpur State in the capacity of sikmi kharposdar which was inherited by the father of defendants No.1 to 4 – Daudu Sai and after death of Daudu Sai defendants No.1 to 4 have become owners and in alternative, defendants No.1 to 4 have also setup their case that their father was in open and defiant possession of the lands in question surely since more than 12 years which has ripened into title and as such, in my view, they are precluded from setting up an inconsistent plea based on adverse possession. The two are mutually destructive pleas and the plea of adverse possession is not available to defendants No.1 to 4, as they have not renounced the title on them and they have not admitted the title of either defendants No.5 to 7 or of the plaintiffs over the suit land. As such, the plea of adverse possession was neither available nor has been established by defendants No.1 to 4 and it has rightly been negatived by the two Courts below which is a finding of fact based on the evidence on record and said finding is binding on this Court under Section 100 of the CPC. 19. Now, the question is whether defendants No.1 to 4 have established their title over the suit land. 20. The case of defendants No.1 to 4 is that their grandfather Late Shri Bhawanand Sai was granted sikmi kharposdar right by the then ruling chief of Jashpur State and the suit was land was manwar land and they have inherited the suit property from their father. The trial Court has clearly recorded a finding that in the document Ex.D-1 filed by defendants No.1 to 4, the name of father of defendants No.1 to 4 was recorded showing that the land was manwar land and fell within the ruling chief of Jashpur State i.e. Raja Bahadur Devsharan Singh Deo in which Wajibul-arj of Jashpur was applicable and on behalf of the ruling chief Ratan Sai was Zamindar and Zamindar has granted kharposdar right to Janak Sai and Janak Sai has given sikmi kharposdar right to the grandfather of defendants No.1 to 4. 21. 21. At this stage, it will be appropriate to notice Wajibul-arj of Jashpur State on the basis of which defendants No.1 to 4 claimed kharposdar right:- ckc 2 Bsdsnkjksa dk gqdwd+ oks tokcnkfj;ka r'kjhg %& reke okftcq vt+Z esa y+t Bsdnkj esa evkQ+hnkjku [kksjQs'knku] ftu ds dCts esa ekStk fcyk vnk djus Bsdk tek ds gSa ;k ftu ds lkFk fjvk;ru cUnkscLr gS 'kkfey gSA ¼d½ eqtfey ¼3½ Bsdnkj yksxksa dh nks fdLlsa gSa ,d egQwt+k Bsdnkj oks nwljk ekewyh Bsdsnkj egQ+wtk Bsdsnkj dks ;g gd+ gksxk fd pkyw cUnkscLr ds [kRe gksus ij u;k Bsdk fQj mlh dks feys exj bl 'krZ ij fd tks u, Bsds dh tek cUnkscLr esa rtcht+ gqbZ gS mldks eatwj djuk iM+sxkA bl [kkl gd dks NksM+ dj mlds nhxj gqdwd+ ekewyh Bsdsnkj ds gqdwd+ ds leku gSA ¼[k½ fdLe gqdwd+ ¼4½ ekewyh Bsdnkj ds Bsds gh ehvkn cUnkscLr [kRe gksus rd gh jgsxh vkSj mldk fQj ls Bsdk gkfly djus dks dksbZ gd+ ugha gS exj ftu Bsdsnkjku us viuh jS;rksa dks [kq'k j[kdj vxj ekSt+k dh bfUrt+ke [kwch ds lkFk vatke fn;s gSa rks Bsdk [kRe gksus ij mudh nkoh ij fQj ls Bsdk fn;s tkus ds ckcr fopkj fd;k tk;sxkA vxj iqjkus Bsdknkj dks ;k ml 'k[+l dks ftldh eqrkfcd nQk ¼7½ ds fojklru gd+ Bsdk gkfly gS fQj ls Bsdk fn;k tk; rks LVsV ,slh ubZ cUnkscLrh ds le; ut+jkuk u yxk;xhA ¼5½ Bsdk ftldks fn;k tk; [kkl mlh ds fy;s gS LVsV flQZ ml Bsdnkj dks Lohdkj djsxh tks [kqngh viuh ekSt+k ds okftc bfUrt+ke ds fuLor LVsV ds lkFk ftEesnkjh j[krk gSA Bsdsnkj dk Bsdk ot+fj;s iV~Vk fn;k tk;xk vkSj og ,d dqcwfy;r eatwjh 'kjk;r iV~Vs ds ckcr nsxkA ¼x½ csn[kyh ¼8½ Bsdnkj Bsdk ls ml lwjr esa csn[ky fd;k tk;xk vc fd tqYe djus dk dqlwjokj gksxk ;k laxhu cnpyuh djsxk ;k og :fyax phQ+ lkgc ls ;k LVsV ds eqd+jZjk veynkjh ;s jktnzksg djsxk ;k Bsdk tek ;k nhxj ikouk LVsV eqd+jsZ rkjh[k ij vnk ugha djsxk ;k viuh dqcwfy;r ;k okftcqy vt+Z ds dksbZ Hkh 'krZ dh rkehyh ugha djsxkA ¼³½ euokj ¼9½ euokj t+ehu dk eryc og t+ehu gS tks oDr cUnkscLr euokj fy[kh xbZ gS vkSj og t+ehu Hkh gS tks nkSjku cUnkscLr esa okftcqy&vtZ ds 'kjk;r ds eqykfcd+ euokj djkj nh tk;A ¼N½ bfUrdky ¼18½ Bsdnkj dks viuk Bsdk ;k ekSts ds vius dksbZ gd+ dks ;k mlds dksbZ Hkkx dh ct+fj;s fcØh] ca/kk ¼jsgu½ c[k+f'k'k] iV~Vk ;k f'kdeh iV~Vk] Bsdk ;k f'kdeh Bsdk ;k dksbZ nwljs lwjr esa eqUrfdy ugha djsxkA ,slk dksbZ bUrdky ;k eqUrfdy djus dh dksf'k'k ds lwjr dk ;g urhtk gksxk fd mldk Bsdk tIr dj fy;k tk;xk vkSj ftldks eqUrfdy fd;k x;k gS mldks Hkh ekSt+k esa dksbZ gd+ ugha gksxkA 22. A careful perusal of the provisions of Wajibul-arj of Jashpur State would show that all the landed properties belonged to the ruling chief of Jashpur State in the year 1925 and the ruling chief of Jashpur State appointed Thekedars and Zamindars for cultivation of lands and collection of land revenue from the cultivators. The Thekedars used to give the said land to kharposdars (maintenance holders) who in turn, collect revenue and deposit the same with the Thekedars. The Thekedars have no right and authority to give any right to the kharposdars or the cultivators, in fact, the kharposdar is the person who on behalf of Thekedar grants the patta for the specified period and even Thekedar has no right to sell, mortgage, gift the land to any person without the permission of the ruling chief. 23. The trial Court on the basis of Wajibul-arj has clearly recorded a finding that the name of the grandfather of defendants No.1 to 4 was recorded as kharposdar in the year 1925 over the land in dispute, but thereafter, ryoti rights were granted to Nityanand Sai and others in Revenue Case No. 776/51 on 7-3-1952 and the manwar land was converted into ryoti rights and in that capacity, defendants No.5 to 7 have sold the land in favour of the plaintiffs. The said finding of the trial Court that grandfather of defendants No.1 to 4 was only having the kharposdar right and was not having right and title over the said land; it was never converted into the ownership or Bhumiswami right in favour of grandfather of defendants No.1 to 4 – Late Shri Bhawanand Sai; and possession of kharposdar is held to be permissive possession, is a finding of fact based on evidence available on record and the said finding has been affirmed by the first appellate Court. In sum and substance, it was held that the plaintiffs have validly purchased the suit land from defendants No.5 to 7 as they had title over the suit land and the grandfather of defendants No.1 to 4, who was sikmi kharposdar, was only having the possession of the land for the time being on behalf of the Zamindar/ruling chief and no such title was ever conferred to the grandfather of defendants No.1 to 4 in their Bhumiswami right or ownership right and therefore they had no title and the plea of adverse possession was not available to defendants No.1 to 4 having taken the inconsistent plea as held herein-above. 24. Therefore, in my considered opinion, the trial Court is absolutely justified in holding that defendants No.5 to 7 had right, title and possession over the suit land to sell the property in favour of the plaintiffs which has rightly been affirmed by the first appellate Court and which is hereby reaffirmed. 25. Consequently, the substantial questions of law are answered against defendants No.1 to 4 and in favour of the plaintiffs and the second appeal is dismissed leaving the parties to bear their own costs. 26. A decree be drawn-up accordingly.