Possession under an agreement to sell does not constitute adverse possession.

1. This is defendant's Second Appeal under S.100 of the Code of Civil Procedure (for short 'the CPC') against the judgment and decree dated 16.12.2015 passed by 1st Additional District Judge, Janjgir - Champa in Civil Appeal No. 55 - A / 2015, reversing the judgment and decree dated 03.02.2011 passed by 1st Civil Judge, Class II, Nawagarh, Distt. Janjgir - Champa in Civil Suit No. 16 - A / 2009, decreeing the suit.
[For sake of convenience, the parties would be referred hereinafter as per their status before the trial Court].

2. The plaintiff filed suit for recovery of possession stating inter alia that he is the owner of the suit land but pursuant to the agreement to sell dated 16.07.1997 he has delivered the possession to the defendant but defendant has not taken any steps to get the sale deed registered within the period stipulated for registration of the sale deed and, thereafter, defendant possession has become illegal and capacity of the defendant is encroacher and, therefore, decree of possession be granted in favour of the plaintiff.

3. The trial Court dismissed the suit by its judgment & decree dated 03.02.2011, however, directed the plaintiff to get the sale deed registered in favour of defendant.

4. Plaintiff preferred first appeal there - against. The First Appellate Court granted decree in favour of the plaintiff setting aside the judgment & decree of the trial Court, against which, second appeal under S.100 of the CPC has been filed.

5. Shri Sunil Sahu, learned counsel appearing for the defendant would submit that the defendant remained in possession pursuant to the agreement to sell dated 16.07.1997 for more than 12 years and, therefore, he has perfected his title by way of adverse possession and, therefore, the decree granted in plaintiffs favour is perverse and that give rise a substantial question of law for determination in this appeal.

6. The defendant, by filing written statement, categorically pleaded that he is in possession over the suit land since 16.7.1997 pursuant to the agreement to sell and since then he is in possession over the suit land i.e. more than 12 years, and therefore, the suit is barred and he has perfected his title over the suit land by way of adverse possession.

7. It is well - settled that a person claiming to be in possession under the agreement to sell, his possession would be permissive possession and he cannot be permitted to contend that his possession is adverse and he has perfected his title by way of adverse possession.

8. The Supreme Court in case of Achal Reddi v. Ramakrishna Reddiar and others, AIR 1990 SC 553 has held as under:

'There is no controversy that the plaintiff has to establish subsisting title by proving possession within 12 years prior to the suit when the plaintiff alleged dispossession while in possession of the suit property. The first appellate Court as well as the second appellate Court proceeded on the basis that the plaintiff is not entitled to succeed as such possession has not been proved. The concurrent finding that the plaintiff had title in spite of the decree for specific performance obtained against him, when that decree had not been executed are not assailed by the appellant in the High Court. The appellant cannot, therefore, urge before us on the basis of the findings in the earlier suit to which he was not a party that Ex.A - 1 sale deed is one without consideration and does not confer valid title on the plaintiff. The sole question that has been considered by the High Court is that of subsisting title. We have to consider whether the question of law as to the character of the possession Varada Reddi had between 10-7-1946 an