ORDER : 1. This second appeal under Section 100 of C.P.C. has been filed against the judgment and decree dated 28/11/2001 passed by II Additional District Judge, Vidisha in Civil Appeal No.29-A/2000 arising out of judgment and decree dated 03/07/2000 passed by II Civil Judge Class II, Vidisha in Civil Suit No.233-A/1997. 2. The appellant is the plaintiff, who has lost his case from both the Courts below. 3. This second appeal was admitted on the following substantial question of law:- "Whether defendant's possession based on title through unregistered sale-deed, was permissive and the Courts below erred in law in holding it adverse possession and if so, if the judgment and decree of the Courts below are illegal?" 4. The facts necessary for disposal of present appeal, in short, are that appellant/plaintiff filed a suit for possession, permanent injunction as well as mesne profit at the rate of Rs.100/- per month. 5. It is the case of plaintiff that the house, which is shown in the suit map, is situated in Madankhedi, Tahsil and District Vidisha which is the disputed property. A part of the house, which is marked as A, B, C, D, consist of two rooms and a corridor belonging to plaintiff. The relationship between plaintiff and defendant was good, and since, defendant was in need of money, therefore, he had sold his house to one Dheeraj Singh and, therefore, he had requested plaintiff to allow him to keep his belongings in the disputed property till either he constructs his new house or makes alternative arrangement. The disputed property was lying vacant and accordingly, plaintiff accepted the request made by defendant and granted licence to defendant to store some of his belongings. Later on, the relationship between plaintiff and defendant deteriorated, and accordingly, plaintiff filed a suit for permanent injunction against the defendant, which has been registered as Case No.211-A/1967 and is pending before the Court of Civil Judge Class-I, District Vidisha. As the defendant got annoyed on account of institution of suit, therefore, now, he is out-and-out to alienate the disputed property and has also refused to vacate the same. It was pleaded that in case if disputed property is sold by defendant, then plaintiff would suffer irreparable loss and, therefore, the suit was filed for possession as well as for permanent injunction and mesne profit at the rate of Rs.100/- per month. 6. It was pleaded that in case if disputed property is sold by defendant, then plaintiff would suffer irreparable loss and, therefore, the suit was filed for possession as well as for permanent injunction and mesne profit at the rate of Rs.100/- per month. 6. Defendant filed his written statement and denied that disputed property belongs to plaintiff. In special plea, it was stated by defendant that on 15/11/1973, defendant had purchased the disputed property for a consideration amount of Rs.800/- and an unregistered sale-deed was executed because it was agreed that the registration expenses will be borne by plaintiff and since, he was not in possession of said expenses, therefore, the sale-deed was not executed. Earlier, the house was a ruin which has been reconstructed by defendant. Plaintiff had lost his title over the property in dispute from the year 1973. Thus, in nutshell, it was the case of defendant that by virtue of an unregistered document Ex.D-1, he has become the owner of the property in dispute and is in possession thereof. 7. The trial Court after framing issues and recording evidence, dismissed the suit. 8. Being aggrieved by judgment and decree dated 03/07/2000 passed by trial Court, appellant preferred an appeal, which too has been dismissed by the Appellate Court by judgment and decree dated 28/11/2001, and it has been held that defendant is in possession of property in dispute from 15/11/1973 and thus, he has perfected his title by way of adverse possession. 9. Challenging the judgment and decree passed by Courts below, it is submitted by Shri Harish Dixit, Senior Advocate that once defendant had set up his defence that by unregistered sale-deed dated 15/11/1973 (Ex.D-1), he had purchased the property from plaintiff after making payment of Rs.800/-, then it was clear that defendant had claimed possession in the capacity of Bhumiswami. Since, the value of property was more than Rs.100/-, therefore, the property could not have been sold except by a registered sale-deed. Thus, it is clear that no right or title had stood transferred to defendant by virtue of an unregistered sale-deed dated 15/11/1973 (Ex.D-1). It is submitted that now, at the most, it can be said that defendant was in permissive possession. Thus, it is clear that no right or title had stood transferred to defendant by virtue of an unregistered sale-deed dated 15/11/1973 (Ex.D-1). It is submitted that now, at the most, it can be said that defendant was in permissive possession. In order to set up a defence of adverse possession, defendant was required to admit the title of plaintiff, but he had denied the title of plaintiff by alleging that plaintiff has already sold the property to him by unregistered sale-deed dated 15/11/1973 (Ex.D-1) and, therefore, the Courts below have committed a material illegality by holding that defendant had perfected his title by way of adverse possession. 10. Heard the learned counsel for appellant. 11. Before considering the case of the parties, this Court would like to consider the law governing the field of adverse possession. 12. The Supreme Court in the case of Hemaji Waghaji Jat Vs. Bhikabhai Khengarbhai Harijan and others, (2009) 16 SCC 517 has held as under: 14. In Secy. of State for India In Council v. Debendra Lal Khan, (1933-34) 61 IA 78 : AIR 1934 PC 23 it was observed that the ordinary classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario and the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. 15. This Court in P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314 , while following the ratio of Debendra Lal Khan case [(1933-34) 61 IA 78 : AIR 1934 PC 23 ], observed as under : (P. Lakshmi Reddy case [ AIR 1957 SC 314 ] , AIR p. 318, para 4) “4. … But it is well-settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the nonpossessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co- heir is found to be in possession of the properties it is presumed to be on the basis of joint title. Ouster of the nonpossessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co- heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. It is a settled rule of law that as between coheirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster.” The Court further observed thus : (P. Lakshmi Reddy case [AIR 1957 SC 314] , AIR p. 318, para 4) “4. … the burden of making out ouster is on the person claiming to displace the lawful title of a coheir by his adverse possession.” 16. In S.M. Karim v. Bibi Sakina, AIR 1964 SC 1254 , Hidayatullah, J. speaking for the Court observed as under : (AIR p. 1256, para 5) “5. … Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for ‘several 12 years’ or that the plaintiff had acquired ‘an absolute title’ was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea.” 17. The facts of R. Chandevarappa v. State of Karnataka, (1995) 6 SCC 309 are similar to the case at hand. In this case, this Court observed as under : (SCC p. 314, para 11) “11. The question then is whether the appellant has perfected his title by adverse possession. It is seen that a contention was raised before the Assistant Commissioner that the appellant having remained in possession from 1968, he perfected his title by adverse possession. In this case, this Court observed as under : (SCC p. 314, para 11) “11. The question then is whether the appellant has perfected his title by adverse possession. It is seen that a contention was raised before the Assistant Commissioner that the appellant having remained in possession from 1968, he perfected his title by adverse possession. But the crucial facts to constitute adverse possession have not been pleaded. Admittedly the appellant came into possession by a derivative title from the original grantee. It is seen that the original grantee has no right to alienate the land. Therefore, having come into possession under colour of title from original grantee, if the appellant intends to plead adverse possession as against the State, he must disclaim his title and plead his hostile claim to the knowledge of the State and that the State had not taken any action thereon within the prescribed period. Thereby, the appellant's possession would become adverse. No such stand was taken nor evidence has been adduced in this behalf. The counsel in fairness, despite his research, is unable to bring to our notice any such plea having been taken by the appellant.” 18. In D.N. Venkatarayappa v. State of Karnataka, (1997) 7 SCC 567 : (1998) 2 CLJ 414 this [Ed. : The extract quoted herein below is taken from the observations of the learned Single Judge of the High Court in an order involved in D.N. Venkatarayappa case, (1997) 7 SCC 567 ] Court observed as under : (SCC p. 571b-c, para 3) “Therefore, in the absence of crucial pleadings, which constitute adverse possession and evidence to show that the petitioners have been in continuous and uninterrupted possession of the lands in question claiming right, title and interest in the lands in question hostile to the right, title and interest of the original grantees, the petitioners cannot claim that they have perfected their title by adverse possession….” 19. In Md. Mohammad Ali v. Jagadish Kalita, (2004) 1 SCC 271 this Court observed as under : (SCC p. 277, paras 21-22) “21. For the purpose of proving adverse possession/ouster, the defendant must also prove animus possidendi. 22. In Md. Mohammad Ali v. Jagadish Kalita, (2004) 1 SCC 271 this Court observed as under : (SCC p. 277, paras 21-22) “21. For the purpose of proving adverse possession/ouster, the defendant must also prove animus possidendi. 22. … We may further observe that in a proper case the court may have to construe the entire pleadings so as to come to a conclusion as to whether the proper plea of adverse possession has been raised in the written statement or not which can also be gathered from the cumulative effect of the averments made therein.” 20. In Karnataka Board of Wakf v. Govt. of India, (2004) 10 SCC 779 at para 11, this Court observed as under : (SCC p. 785) “11. In the eye of the 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 the 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.” The Court further observed that : (SCC p. 785, para 11) “11. … 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 has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.” 21. In Saroop Singh v. Banto, (2005) 8 SCC 330 this Court observed : (SCC p. 340, paras 29- 30) “29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak, (2004) 3 SCC 376 ) 30. ‘Animus possidendi’ is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Md. Mohammad Ali v. Jagdish Kalita, (2004) 1 SCC 271)” 22. This principle has been reiterated later in M. Durai v. Muthu [ (2007) 3 SCC 114 ] . This Court observed as under : (SCC p. 116, para 7) “7. … in terms of Articles 142 and 144 of the old Limitation Act, the plaintiff was bound to prove his title as also possession within twelve years preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession.” 23. This Court had an occasion to examine the concept of adverse possession in T. Anjanappa v. Somalingappa, (2006) 7 SCC 570 . The Court observed that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his title was hostile to the real owner and amounted to denial of his title to the property claimed. The Court further observed that : (SCC p. 577, para 20) “20. … The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The Court further observed that : (SCC p. 577, para 20) “20. … The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action.” 24. In a relatively recent case in P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59 this Court again had an occasion to deal with the concept of adverse possession in detail. The Court also examined the legal position in various countries particularly in English and American systems. We deem it appropriate to reproduce relevant passages in extenso. The Court dealing with adverse possession in paras 5 and 6 observed as under : (SCC pp. 66-67) “5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. (See Downing v. Bird [100 So 2d 57 (Fla 1958)]; Arkansas Commemorative Commission v. City of Little Rock [227 Ark 1085 : 303 SW 2d 569 (1957)] ; Monnot v. Murphy [207 NY 240 : 100 NE 742 (1913)] ; City of Rock Springs v. Sturm [39 Wyo 494 : 273 P 908 : 97 ALR 1 (1929)] .) 6. Efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which right to access the court expires through efflux of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title. (See American Jurisprudence, Vol. 3, 2d, p. 81.) It is important to keep in mind while studying the American notion of adverse possession, especially in the backdrop of limitation statutes, that the intention to dispossess cannot be given a complete go-by. Simple application of limitation shall not be enough by itself for the success of an adverse possession claim.” 13. The Supreme Court also in the case of Nand Ram (Dead) Through Legal Representatives And others vs. Jagdish Prasad (Dead) Through Legal Representatives, (2020) 9 SCC 393 has held as under: “42 ….. In the present proceedings, the respondent has denied his status as that of a tenant but claimed title in himself. The respondent claimed adverse possession and claimed possession as owner against a person, who has inducted him as tenant. The respondent was to prove his continuous, open and hostile possession to the knowledge of true owner for a continuous period of 12 years. The respondent has not led any evidence of hostile possession to the knowledge of true owner at any time before or after the award of the Reference Court nor has he surrendered possession before asserting hostile, continuous and open title to the knowledge of the true owner. The question of adverse possession without admitting the title of the real owner is not tenable. Such question has been examined by this Court in Uttam Chand v. Nathu Ram, (2020) 11 SCC 263 .” 14. The Supreme Court in the case of A. Shanmugam Vs. The question of adverse possession without admitting the title of the real owner is not tenable. Such question has been examined by this Court in Uttam Chand v. Nathu Ram, (2020) 11 SCC 263 .” 14. The Supreme Court in the case of A. Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam Represented by its President and others, (2012) 6 SCC 430 has held as under: “43.6. The watchman, caretaker or a servant employed to look after the property can never acquire interest in the property irrespective of his long possession. The watchman, caretaker or a servant is under an obligation to hand over the possession forthwith on demand. According to the principles of justice, equity and good conscience, the courts are not justified in protecting the possession of a watchman, caretaker or servant who was only allowed to live into the premises to look after the same. 43.7. The watchman, caretaker or agent holds the property of the principal only on behalf of the principal. He acquires no right or interest whatsoever in such property irrespective of his long stay or possession.” 15. Thus, it is clear that in order to establish the defence of adverse possession, defendant has to admit the title of true owner and will have to claim that he was in an open and hostile possession even to the knowledge of true owner. 16. If the case of defendant is considered, then it is clear that he admitted that plaintiff was the owner of the property in dispute. It was his case that by an unregistered sale-deed dated 15/11/1973 (Ex.D-1), he had purchased the disputed property for a consideration amount of Rs.800/-. Undisputedly, the value of property was more than Rs. 100/-, therefore, it was required to be registered. Since, it is an unregistered document, therefore, no right or title stood transferred to defendant on the basis of unregistered sale-deed dated 15/11/1973 (Ex.D-1). After having set up his defence that he had become owner by virtue of an unregistered sale-deed, and having failed to establish the same, defendant cannot claim that he was in open and hostile possession even to the knowledge of plaintiff. At the most, it can be said that possession of defendant was permissive. 17. After having set up his defence that he had become owner by virtue of an unregistered sale-deed, and having failed to establish the same, defendant cannot claim that he was in open and hostile possession even to the knowledge of plaintiff. At the most, it can be said that possession of defendant was permissive. 17. Under these circumstances, this Court is of considered opinion that since, possession of defendant had not become adverse to the right and title of plaintiff, therefore, the Court below has committed a material illegality by holding that defendant had perfected his title by way of adverse possession. 18. There is another aspect of the matter, which is required to be considered. The appellant did not seek any declaration about his title and filed a suit for possession as well as permanent injunction. Since, defendant had not disputed the title of appellant, and on the contrary, it was his case that he has purchased the property in dispute from appellant by an unregistered sale-deed dated 15/11/1973 (Ex.D-1), therefore, it is held that even if the declaration with regard to title was not sought by plaintiff, still the suit cannot be said to be bad in law as the title of plaintiff was never disputed by defendant. 19. Accordingly, this Court is of considered opinion that judgment and decree dated 28/11/2001 passed by II Additional District Judge, Vidisha in Civil Appeal No.29-A/2000 arising out of judgment and decree dated 03/07/2000 passed by II Civil Judge Class II, Vidisha in Civil Suit No.233-A/1997 cannot be given the stamp of judicial approval. 20. Accordingly, judgment and decree dated 28/11/2001 passed by II Additional District Judge, Vidisha in Civil Appeal No.29-A/2000 arising out of judgment and decree dated 03/07/2000 passed by II Civil Judge Class II, Vidisha in Civil Suit No.233-A/1997 are hereby set aside. 21. The suit filed by plaintiff is hereby decreed, and it is directed that defendant shall hand over the vacant possession of the disputed property to plaintiff and defendant is hereby permanently restrained from interfering with peaceful possession of appellant/plaintiff over the property in dispute. 22. Appeal succeeds and is hereby allowed. 23. Decree be drawn accordingly.