Adverse Possession - there is no legal hurdle for a plaintiff to set up title to an immovable property and in the alternative, a prescriptive title acquired by adverse possession and limitation for claiming any relief in respect of the property.
Adverse Possession - A person, who claims adverse possession, must prove identity of the true owner against whom he claims is an incorrect statement of law.
George v. Balakrishnan, 2014 (4) KLT 788 - Held not good law.
Adverse Possession - Exclusive possession of the thing owned and the right to exclude others from possession are two essential components in the bundle of rights called “title” or “ownership”.
Every owner has a right to possess property in exclusion of all the others. Every person holding property under a claim of adverse possession keeps possession of the same with a hostile animus to exclude all others, including the true owner. Therefore, both in a claim of ownership and adverse possession, assertive possession is an essential component. In the case of a person claiming adverse title by prescription, he must have been holding possession with an open hostile animus for the prescribed period. Therefore, I find no reason to think that there is any impediment in claiming ownership of property and in the alternative, a prescriptive title to it by adverse possession and limitation.
IN
THE HIGH COURT OF KERALA AT ERNAKULAM
A. HARIPRASAD, J.
S.A. No.581 of 1998
Dated this the 28th day of March, 2018
AGAINST THE JUDGMENT AND DECREE DATED 21.01.1995 IN AS NO.
16/1991 of SUB COURT, MUVATTUPUZHA AGAINST THE JUDGMENT AND DECREE DATED
20.12.1990 IN OS NO.72/1988 of MUNSIFF'S COURT,MUVATTUPUZHA
APPELLANTS/RESPONDENTS/DEFENDANTS.
1. KERALA STATE
REPRESENTED BY THE CHIEF SECRETARY, TRIVANDRUM.
2. THE DISTRICT
COLLECTOR, ERNAKULAM.
3. THE TAHSILDAR,
MUVATTUPUZHA.
4. THE EXECUTIVE
ENGINEER, ROADS DIVISION, P.W.D. OFFICE, MUVATTUPUZHA.
5. THE ASSISTANT
ENGINEER (ROADS), P.W.D. KALLOORKADU.
BY
SPECIAL GOVERNMENT PLEADER SRI.M.L.SAJEEVAN RESPONDENTS/APPELLANTS/PLAINTIFFS.
BRIJIT AND 3 OTHERS
R1,
R3 AND R4 BY ADV. SRI.K.K.CHANDRAN PILLAI (SENIOR ADVOCATE)
J U D G M E N T
State of Kerala and its officers are the
appellants. They are the defendants in a suit filed by the original respondents
seeking a declaration of title to the plaint schedule property and also for a
perpetual injunction. In the first court, the plaintiffs lost. They went in
appeal before the lower appellate court. The appellate court reversed the
judgment and decree of the trial court and the suit was decreed declaring title
of the plaintiffs over the plaint schedule property and prohibiting the
defendants from trespassing into the plaint schedule property, demolishing a
building thereon and doing any act adversely affecting the title and possession
of the plaintiffs.
2. Shorn off unnecessary
details, the relevant pleadings are thus:Plaint schedule property along with a
larger extent belonged to Karintholil Lucka Thomman. It was devolved on him by
virtue of a registered partition deed of the year 1110 ME. He assigned the
property to the 1st plaintiff (his daughter-in-law) in the year 1978 as per Ext.A1 document.
Plaint schedule land is part of item No.3 in Ext.A1. 2nd plaintiff was the husband of 1st plaintiff. Plaintiffs possessed the
property and they were cultivating the land. They had constructed buildings.
Plaintiffs and their predecessor-in-title were in possession of the property
for more than 50 years. They were keeping possession of the property openly and
without any objection from anyone and with an assertion that no one had any
right over the property. Earlier, the property was registered as a paddy field.
While the larger extent of the property was outstanding with the predecessor-in-title
of the plaintiffs, he surrendered a portion thereof, for forming a public road
connecting Vazhakkulam and Kalloorkkad. On the formation of the road, the
property was divided into two. Plaint schedule property fell on the western
side of the public road. Hence, the entire property, situate on both the sides
of the public road, belonged to the predecessor-in-title of the plaintiffs and
after Ext.A1, it belonged to the 1st plaintiff. Plaintiffs kept possession of the property and enjoyed the
same in absolute right. When the property was outstanding with Lucka Thomman, he
had constructed a shop building in the plaint schedule property. Further, an
old laterite stone wall was also constructed to separate the plaint schedule
property from the road lying on the eastern side. Tenor of the pleadings will
show that the plaintiffs claimed ownership over the plaint schedule property
and also contended that they and their predecessor were possessing the property
in exclusion of all other persons. While so, the building constructed by Lucka
Thomman became dilapidated due to old age and after spending ₹20,000/- the plaintiffs
reconstructed the building. Government
officers, at the instigation of the plaintiffs' neighbour and antagonist,
issued a notice under the Land Conservancy Act, 1957 (in short, “L.C. Act”)
alleging that the plaint schedule property is a puramboke and the plaintiffs
had unauthorisedly trespassed into the property and constructed a building. It
is the assertion of the plaintiffs that the Government have no right over the
property as it belonged to them exclusively. If at all the Government had any
right over the property, it was lost by adverse possession and limitation.
3. 3rd defendant filed a written statement
contending that the plaint schedule property is included in survey No.179/4-4,
having an extent of 15 cents and it is a road puramboke. The Assistant
Engineer, Kalloorkkad, Public Works Department had issued a notice on
16.06.1987 stating that Lucka Thomman had trespassed upon the Government puramboke
and unauthorisedly constructed a building. When survey was conducted, it was
found that 5.5 cents of land in the possession of the plaintiffs and 1.5 cents
in the possession of one Ayyappan Kunjan belonged to the Government. They have
no right to enter the Government puramboke and make constructions thereon. The
property was jointly inspected by the officers of Manjalloor Panchayat,
Assistant Engineer, Public Works Department and Village Officer, Manjalloor. On
verification, they were satisfied that the plaintiffs had trespassed upon the
plaint schedule property, which belonged to the Government. Proceedings under the
L.C. Act had been initiated against the plaintiffs. The plaint schedule property
is highly essential for future widening of the public road. The suit is
misconceived.
4. Pending this appeal, the 2nd respondent died. His legal representatives
are impleaded as additional respondents 3 to 5.
5. Heard Sri.M.L.Sajeevan,
learned Special Government Pleader for the appellants and Sri.K.K.Chandran
Pillai, learned senior counsel for the respondents.
6. Although the appeal was
admitted by a learned Single Judge on two substantial questions of law raised
in the appeal memorandum, after hearing both the sides and on perusal of the
records, the substantial questions of law re-framed are thus:
I. Whether the
plea of adverse possession and limitation set up by the respondents is
sustainable when they primarily claimed ownership over the plaint schedule
property and a prescriptive title was put forward only as an alternative claim?
II. Is it mandatory that a person claiming title by adverse possession and
limitation must know the identity of the true owner against whom he makes the
claim?
7. Sri.Sajeevan contended that the lower appellate court without any
legal justification reversed a well considered judgment of the trial court. The trial
court's judgment would reveal that it considered Exts.A1 to A6, filed on the
side of the respondents/plaintiffs and Ext.B1, filed on the side of the appellants/defendants.
Commissioner’s report (Ext.C1 series) was also considered. Trial court was not
impressed about the contention of the respondents that they are owners of the
property. It also found that the respondents failed to establish that they were
possessing the property adversely to the Government for a period of 30 years,
as prescribed under Article 112 of the Limitation Act, 1963 (in short, “the
Limitation Act”), for perfecting a title by adverse possession and limitation.
For the above reasons, the suit was dismissed.
8. The lower appellate court,
relying on the oral evidence of the witnesses on the side of the respondents
and also the documents produced by them, came to a conclusion that the
respondents possessed the property in exclusion of all others for more than 30
years and therefore the State’s right, if any, had been lost by adverse
possession and limitation. Materials in
Ext.B1 file were also considered by the lower appellate court to arrive at the
conclusion.
9. Sri.Sajeevan would contend
that the lower appellate court erroneously placed reliance on the ratio in Raman v. S.Devadasa Maller and others (1991 (1) KLJ 377) that what is required to have a hostile animus is not the knowledge
that any particular individual is the owner and the person claiming adverse
possession was holding against him, but the animus to hold the property openly
under the claim or colour of title in derogation of the title of all others,
whoever they may be known or unknown. According to Sri.Sajeevan, the principle
of law stated in Raman’s case is no longer good law in view of the subsequent
pronouncements. It is also contended on behalf of the appellants that a plea of
ownership and in the alternative, a plea of title by adverse possession and
limitation cannot go together.
10. Per contra, Sri.Chandran
Pillai contended that the principle relied on by the court below still holds
good and there was no error on the part of the lower appellate court in
appreciating the legal issues involved in this case.
11. Before dealing with the
contentious legal issues, I shall refer to the facts and circumstances relevant
for a proper decision.
12. Ext.A1 is the title deed in
respect of the plaint property, executed by Lucka Thomman in favour of the 1st plaintiff. Ext.A2 is a certificate issued
by the Executive Officer, Manjalloor Panchayat dated 01.02.1988 certifying that
Nirmmala Reading Club, Manjalloor was functioning in building No.I/172 of Ward
No.I of Manjalloor Panchayat and the building had been assessed in the name of
Lucka Thomman in the building tax assessment register maintained by the
Panchayat during the year 1957. On the basis of this document, it was contended
by Sri. Chandran
Pillai that the building in existence prior to 1957 was only reconstructed in
the year 1988. And at that time, Ext.A4 notice was issued by the Village
Officer, Manjalloor alleging that the construction was unauthorised because it
was in survey No.179/4-4, a road puramboke. Ext.A3 is a
receipt issued by Manjalloor Panchayat for collecting building tax for the
second half of year 1987-88. Ext.A5 is the basic tax receipt issued by the
Village Officer, Manjalloor on 21.01.1986 for paying land tax in respect of 1
hectare and 65 Ares. Ext.A6 is a notice issued from Manjalloor Panchayat to the
1st plaintiff
demanding her to furnish details of the building for making an assessment of
building tax. These documents, according to Sri.Chandran Pillai, would show
that an old building was in existence even when the property belonged to Lucka
Thomman and the local authority had recognized that fact.
13. My attention had been drawn
to certain observations in Ext.B1 file to contend that the Village Officer's
report submitted to the District Collector under Rule 4 of the Land Conservancy
Rules, 1958 along with a plotted sketch and a mahazar, containing full
particulars of the land allegedly encroached upon, would show that the alleged
trespass was 40 years prior to the inspection. In specific terms, the reports
in Ext.B1 file would show that 40 years before the date of inspection, the
property was trespassed upon by the plaintiffs' predecessor. Further statements
in Ext.B1 file would show that the encroachment on the Government property should
be evicted for future widening of the public road. It is therefore contended by
Sri.Chandran Pillai that the records relied on by the appellants themselves
would show that the property was outstanding in the exclusive possession of the
respondents much prior to 30 years. It is also contended that the
respondents/plaintiffs adduced oral evidence to substantiate their contentions.
But, the appellants/defendants did not challenge the plaintiffs' evidence by adducing
any rebuttal evidence. None of the officers was examined to prove the materials
in Ext.B1 file. The appellants simply produced Ext.B1 file without attempting
to prove the contents therein and the very same document would probabilise the
case of the respondents, contended on behalf of the respondents.
14. It is pertinent to note that
the plaintiffs did not make any serious attempt to prove that the plaint
schedule property is a part of item No.3 in Ext.A1. Even though a commissioner
was deputed to take an inventory and sketch of the features seen on the ground,
no specific request for identifying the property with reference to survey
number and boundaries as per the document was made. In fact, Ext.C1 series
report and sketch is highly insufficient to find whether the plaint schedule
property is a part and parcel of item No.3 in Ext.A1 document. Viewing from
that angle, the finding of the trial court that the plaintiffs failed to
establish title over the property has to be upheld. What is remaining to be
considered is whether the plaintiffs succeeded in establishing a prescriptive
title to the property. As observed by the lower appellate court, the evidence
on record would probabilise the case that the plaintiffs were holding exclusive
possession over the property for more than 30 years. Oral and documentary
evidence, even the materials in Ext.B1, would probabilise the case of the
plaintiffs regarding adverse possession and limitation. Hence, a well founded
finding by the lower appellate court on a factual aspect cannot be assailed in
this second appeal.
15. In order to resolve the
substantial questions of law, I must consider sustainability of the rival
contentions in detail.
16. It is brought to my notice
that a learned Single Judge, while considering George v. Balakrishnan (2014 (4) KLT 788), had occasion to consider two decisions rendered by Single Judges of
this Court in Raman’s case (supra) and Devaki
Pillai v. Gouri Amma (2003 (1) KLT 421). After
considering various authorities on the point rendered by the apex Court, the
learned Single Judge in George’s case held that the principles laid down in Raman’s case and Devaki Pillai’s case are not good law. Sri.Chandran
Pillai contended that the above observation by the learned Single Judge was
under a mistaken notion and without considering the binding pronouncements by
larger Benches of the Supreme Court, which would indicate that the ratio in Raman’s case and Devaki Pillai’s case are legally
correct. Contra observations in George’s case are incorrect expositions of law, it is contended. Before
directly coming to these aspects, I shall recapitulate the principles regarding
adverse possession and limitation.
17. Judicial Committee of the
Privy Council in Perry v. Clissold and
Others (1907 A.C.73) laid down the following
principles:
“It cannot be
disputed that a person in possession of land in the assumed character of owner
and exercising peaceably the ordinary rights of ownership has a perfectly good
title against all the world but the rightful owner. And if the rightful owner
does not come forward and assert his title by process of law within the period
prescribed by the provisions of the Statute of Limitations applicable to the
case, his right is for ever extinguished, and the possessory owner acquires an absolute
title.”
Contextually, I may mention that the
above principles have been approved by a larger Bench of the Supreme Court in Nair Service Society Ltd. v. K.C.Alexander
and others (AIR 1968 SC 1165).
18. After Perry's case, the classical
requirements to constitute adverse possession were lucidly identified by the
Judicial Committee of the Privy Council in Corea
v. Appuhany (1912 A.C.230), as nec vi (neither by force), nec clam (neither secretly) and nec precario (neither by
licence or permission).
19. Principles enunciated in the
above decisions were considered and approved in a large number of decisions by
the apex Court. I may point out a three Judge Bench decision of the Supreme
Court in P.Lakshmi Reddy v. L.Lakshmi
Reddy (AIR 1957 SC 314). In paragraph 4, it is
observed by the Bench that the ordinary classical requirement of adverse
possession is that it should be nec
vi, nec clam and nec precario. Further,
possession required must be adequate in continuity, in publicity and in extent
to show that it is a possession adverse to the competitor. This principle being
well settled and therefore unchallengeable, in order to avoid prolixity, I
refrain from mentioning other authorities on the same point.
20. Salmond on
Jurisprudence,12th edition, Chapter 9 deals with the law
relating to possession. The concepts “possession in fact” and “possession in
law” have been discussed in detail by the learned author. According to
him, “possession in fact” is a relationship between a person and a thing.
Whereas “possession of law” has two facets. First, the possessor can be given
certain legal rights, such as a right to continue in possession, free from interference
by others. This primary right in
rem can then be supported by various sanctioning
rights in personam against those who violate the possessor's primary right. Second, the
law can protect the possession by prescribing criminal penalties for wrongful
interference and for wrongful possession. By such civil and criminal remedies,
the law can safeguard a man's de
facto possession. The learned author further
says that possession is consisted of two elements, viz., animus possidendi and corpus possessionis. First one
is the mental aspect of possession and the second one is the physical aspect.
21.
Prescription, according to the learned author, has the following manifestations:
“Prescription may be defined as the effect
of lapse of time in creating and destroying rights; it is the operation of time
as a vestitive fact. It is of two kinds, namely (1) positive or acquisitive
prescription and (2) negative or extinctive prescription. The former is the creation
of a right, the latter is the destruction of one, by the lapse of time. An
example of the former is the acquisition of a right of way by the de facto use
of it for twenty years. An instance of the latter is the destruction of the
right to sue for a debt after six years from the time at which it first became
payable.
Lapse
of time, therefore, has two opposite effects. In positive prescription it is a
title of right, but in negative prescription it is a divestitive fact. Whether
it shall operate in the one way or in the other depends on whether it is or is
not accompanied by possession. Positive prescription is the investitive operation
of lapse of time with possession, while negative prescription is the
divestitive operation of lapse of time without possession. Long possession creates
rights, and long want of possession destroys them. If I possess an easement for
twenty years without owning it, I begin at the end of that period to own as
well as to possess it. Conversely if I own land for twelve years without
possessing it, I cease on the termination of that period either to own or to
possess it. In both forms of prescription, fact and right, possession and
ownership, tend to coincidence. Ex facto oritur jus. If the root of fact is
destroyed, the right growing out of it withers and dies in course of time. If
the fact is present, the right will in the fullness of time proceed from it.
In
many cases the two forms of prescription coincide. The property which one
person loses through long dispossession is often at the same time acquired by
some one else through long possession. Yet
this is not always so, and it is necessary in many instances to know whether
legal effect is given to long possession, in which case the prescription is
positive., or to long want of possession, in which case the prescription is
negative. I may, for example, be continuously out of possession of my land for
twelve years, without any other single person having continuously held
possession of it for that length of time. It may have been in the hands of a
series of trespassers against me and against each other. In this case, if the
legally recognized form of prescription is positive, it is inoperative, and I
retain my ownership. But
if the law recognizes negative prescription instead of positive (as in this
case our own system does) my title will be extinguished. Who in such
circumstances will acquire the right which I thus lose, depends not on the law
of prescription, but on the rules as to the acquisition of things which have no
owner. The doctrine that prior possession is a good title against all but the
true owner, will confer on the first of a series of adverse possessors a good
title against all the world so soon as the title of the true owner has been extinguished
by negative prescription.
The
rational basis of prescription is to be found in the presumption of the
coincidence of possession and ownership, of fact and of right. Owners are usually
possessors, and possessors are usually owners. Fact and right are normally
coincident; therefore the former is evidence of the latter. That a thing is
possessed de facto is evidence that it is owned de jure. That it is not
possessed raises a presumption that it is not owned either. Want of possession
is evidence of want of title. The longer the possession or want of possession
has continued, the greater is its evidential value. That I have occupied land
for a day raises a very slight presumption that I am the owner of it; but if I
continue to occupy it for twenty years, the presumption becomes indefinitely stronger.
If I have a claim of debt against a man, unfulfilled and unenforced, the lapse
of six months may have but little weight as evidence that my claim is unfounded
or that it has been already satisfied; but the lapse of ten years may amount to
ample proof of this.”
22. According to M.Krishnaswami, in his
treatise on Law of Adverse
Possession (13th edition) the concept of adverse
possession involves three elements, viz., (i) property, the subject of adverse possession,
(ii) possession of that property by a person having no right to its possession
and (iii) that possession to be adverse to the true owner.
23. The abstract idea of adverse
possession contemplates a hostile possession, ie., a possession which is,
expressly or impliedly, in denial of title of the true owner. In order to be
adverse, the possession must be by a person who does not acknowledge the
others' rights, but denies them. A person who bases his title on adverse
possession, must show, by clear and unequivocal evidence, that his possession
was hostile to the real owner and amounted to a denial of his title to the
property claimed.
24. To make a possession adverse
to the real owner, it must be shown that (i) the true owner has knowledge of
the adverse holding and (ii) the possession was so open and notorious as to
raise a presumption of notice to the true owner. It is indisputable that
possession is evidence of title and it is prima facie adverse and exclusive.
25. Regarding ouster, following
quotation from the Law of Adverse
Possession by M.Krishnaswami may be
useful:
“It is not to be assumed
that a co-owner can never acquire adverse possession against other coowners, and
not even though he openly declares that he had exclusive possession as an owner
of the whole, and though he does so with the knowledge of the other co-owners.
The law only is that possession by itself is never considered adverse if it can
be referred to a lawful title. If the exclusive possession of one co-owner is
accompanied by an open assertion of adverse title which amounts to an ouster of
the other co-owners, and the fact of such assertion is brought to their
knowledge, there is nothing to prevent the character of his possession from
changing into adverse. There can be no adverse possession by one co-owner
against another until there is an ouster, or something equivalent to an ouster
of the latter. The possession of one co-owner is not adverse to the others, if
there is no ouster or exclusive of the possession. …......”
26. The basic distinction between adverse possession as among strangers
and ouster and exclusion of co-owners is that in the case of a claim of adverse
possession against strangers, it is sufficient that the adverse possession is
overt and without any attempt at concealment so that the person against whom
time is running out, with the exercise of due diligence, to be aware of what is
happening. It is not necessary that the adverse possession should be brought
home to the knowledge of the owner. If his rights have been openly assailed
(not secretly), he cannot be heard to complain that the fact of adverse
possession was not brought to his knowledge. But, between co-owners/co-sharers
the burden is heavy on a person claiming a right by adverse possession and
limitation to establish ouster of the other co-owner/co-sharer so as to exclude
him from possession.
27. The said principle has been
clearly stated in P.Lakshmi Reddy's case in the following terms:
“….......
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
non- possessing 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 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. (See
Corea v. Appuhamy, 1912 AC 230 (C)). It is a settled rule of law that as
between co-heirs 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. This does not necessarily mean that
there must be an express demand by one and denial by the other. There
are cases which have held that adverse possession and ouster can be inferred
when one coheir takes and maintains notorious exclusive possession in assertion
of hostile title and continues in such possession for a very considerable time
and excluded heir takes no steps to vindicate his title. Whether
that line of cases is right or wrong we need not pause to consider. It is
sufficient to notice that the Privy Council in N. Varada Pillai v. Jeevarathnmml,
AIR 1919 PC 44 at p. 47 (D) quotes, apparently with approval, a passage from
Culley v. Deod Taylerson, (1840) 3 P and D 539: 52 RR 566 (E) which indicates that
such a situation may well lead to an inference of ouster 'if other
circumstances concur'. (See also Govindrao v. Rajabai, AIR 1931 PC 48 (F). It
may be further mentioned that it is well-settled that the burden of making out
ouster is on the person claiming to displace the lawful title of a co-heir by
his adverse possession.”
28. Sri.Chandran Pillai,
learned senior counsel strongly attacked the ratio in George's case on the ground that
the learned Judge omitted to consider the relevant binding precedents regarding
adverse possession. I shall examine the facts first. The learned Judge in George's case considered a second
appeal arising out of a suit for recovery of possession of immovable property
on the strength of title with future mesne profits. 3rd defendant in the suit was the appellant.
He inter alia contended that title and possession over the properties sought to be
recovered was perfected by him by adverse possession and limitation. Trial
court decreed the suit as prayed for and the first appellate court confirmed
the findings of the trial court. Hence the second appeal was filed by the 3rd defendant. The learned Single Judge has
set out the facts elaborately. It may not be relevant for our purpose to deal
with the facts in extenso. The questions of law raised are thus:
“(i) Whether the claim of adverse possession can be pleaded
alternatively in the pleadings with the plea of possession under title as true
owner of the disputed land?
(ii) Whether the person who pleads the claim of adverse
possession must identify and acknowledge the true owner of the property under
dispute and disclose it in his pleadings?
(iii) Whether the person who claims
adverse possession must know that he has been possessing and enjoying the land
of the true owner against his right and interest?
(iv) Whether the claim of
adverse possession is sustainable against an unknown true owner of the land?”
29. Learned Single Judge has relied on certain decisions by the Supreme
Court to decide the case.
30. Thakur Kishan Singh
v. Arvind Kumar ((1994) 6 SCC 591) is the first
decision relied on by the learned Single Judge. Facts in the decision would
show that a suit for possession in respect of an area of approximately 0.56
acre was laid claiming that the land in dispute was leased to the
plaintiff/respondent by a registered deed executed on 05.12.1949. It was
alleged that the appellant was an agent of the respondent, who was permitted to
set up a brick-kiln in the area in dispute in the year 1960-61. Appellant
alleged to have trespassed initially on an area of 0.14 acre and made further
encroachments on 0.42 acre. The claim was contested by the appellant stating
that the registered lease deed was void under Section 6 of the Madhya Pradesh
Abolition of Proprietary Rights Act, 1950 and the land had been vested in the
State on 31.03.1950. In the alternative, a plea of adverse possession was also
raised. The trial court did not find any merit in the appellant's claim that
the lease was void, but the suit was dismissed finding that the appellant had
acquired right by prescription. In appeal, the decree by the trial court was
set aside and the suit was decreed. High Court did not interfere with the
finding of the lower appellate court in the second appeal. In that context, two
Judge Bench of the Supreme Court held as follows:
“As regards adverse possession, it was not disputed even by the
trial court that the appellant entered into possession over the land in dispute
under a licence from the respondent for purposes of brickkiln, The possession
thus initially being permissive, the burden was heavy on the appellant to
establish that it became adverse. A possession of a co-owner or of a licensee
or of an agent or a permissive possession to become adverse must be established
by cogent and convincing evidence to show hostile animus and possession adverse
to the knowledge of real owner. Mere possession for howsoever length of time
does not result in converting the permissive possession into adverse
possession. …..........”
31. Cardinal distinction
between the facts involved in the above case and those in George's case is that in the
latter, no question of permissive possession ever arose for consideration. That
aspect makes all the difference, because a person entering a land belonging to
another under some legal right cannot prescribe adverse title unless he
renounced that right to the knowledge of the other and re-enterd the property
with a hostile animus. Facts involved in the case on hand are also not similar
to the facts in Thakur Kishan Singh's case. Therefore, the ratio therein cannot be applied in George's case and in the case on
hand.
32. Another decision relied on by
the learned Single Judge in George's case is S.M.Karim v.
Mst.Bibi Sakina (AIR 1964 SC 1254). That was a
suit for declaration of title of the plaint schedule property and confirmation
of possession or in the alternative, delivery thereon against several
defendants.
33. Facts would reveal that one
Syed Aulad Ali had purchased the suit properties on 28.05.1914 at a court sale,
benami in the name of his son-in-law Hakir Alam for the reason that the rules
of Darbhanga Raj, where Syed Aulad Ali was employed, prohibited him from
purchasing any property at a court sale. The sale certificate was issued in the
name of his son-in-law Hakir Alam. On 06.01.1950 Syed Aulad Ali sold the
property to his son (appellant before the Supreme Court) and Hakir Alam sold
the property in his turn to Bibi Sakina (respondent). Apart from the genuineness
of the benami transaction, the Supreme Court considered an alternative plea
raised before it that the title of Hakir Alam was extinguished by long and
uninterrupted possession of Syed Aulad Ali and after him, of the plaintiff. It
was held in this context in the following words:
“......... If the possession of the real owner ripens into
title under the Limitation Act and he is dispossessed, he can sue to obtain
possession, for he does not then rely on the benami nature of the transaction.
But the alternative claim must be clearly made and proved. The High Court held
that the plea of adverse possession was not raised in the suit and reversed the
decision of the two courts below. The plea of adverse possession is raised
here. Reliance is placed before us on Sukhan Das v. Krishnanand, ILR 32 Pat 353
and Sri Bhagwan Singh v. Ram Basi Kuer, AIR 1957 Pat 157 to submit that such a
plea is not necessary and alternatively, that if a plea is required, what can
be considered a proper plea. But these two cases can hardly help the appellant. No
doubt, the plaint sets out the fact that after the purchase by Syed Aulad Ali,
benami in the name of his son-in-law Hakir Alam, Syed Aulad Ali continued in possession
of the property but it does not say that this possession was at any time
adverse to that of the certified purchaser. Hakir Alam was the son-in-law of Syed
Aulad Ali and was living with him. There is no suggestion that Syed Aulad Ali
ever asserted any hostile title against him or that a dispute with regard to ownership
and possession had ever arisen. 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. …....”
(underline supplied)
34. For the above reasons, the Supreme Court
agreed with the High court and dismissed the appeal. The decision is an
authority for the proposition that mere possession for a long time without
exhibiting a hostile animus will not constitute adverse possession. The factual
context in which the law was laid down is also important. It is to be remembered
that S.M.Karim’s
case, decided by two learned Judges, cannot be treated as an authority in the
facts of another case, where a person openly asserts that he possesses the
property as owner and alternatively, claims title by adverse possession against
the rival contender.
35. Yet another decision
considered in George’s case is P.Periasami v.
Periathambi ((1995) 6 SCC 523) rendered
by a two Judge Bench. It was a suit for partition between two branches of the
same family. The Supreme
Court noticed that there was an elder, high in the line, who owned the
properties. The properties were self acquisitions of that man. When he died
years ago, he left behind three sons. He had by then no grandsons born from
those three sons. The property on his death devolved on three sons. When
eventually sons were born to those sons of the acquirer and thereafter
grandsons, there came a day when they sought to effect a partition as dispute
arose within two branches of the family representing lines of two brothers. The
plaintiffs claimed partition on the basis that the properties were received
from the family elders and accretions made thereto from the income derived from
the said property were joint Hindu family properties.
36. In the above factual
background, the Supreme Court considered whether under Hindu Law, a self
acquired property of father goes on his death to his sons (in the absence of
grandsons) in a joint Hindu family way, in joint tenancy, or does it descend by
inheritance to them in well defined shares as tenants-in-common. The facts and
ratio in P.Periasami’s case have no similarity either to the facts in George’s case or the case on hand.
37. Learned Single Judge placed
reliance on Mohan Lal v. Mirza Abdul
Gaffar ((1996) 1 SCC 639), that too a decision
rendered by a two Judge Bench. Facts in nut-shell would show that the appellant
before the Supreme Court had come into possession of the suit land pursuant to
an agreement for sale dated 08.03.1956. He paid part consideration of ₹500/- and obtained possession
of the lands. Subsequently the respondent purchased the land by a sale deed
dated 23.03.1960. In the meantime, the appellant filed a suit for specific
performance of the contract for sale and it became final. The respondent filed
a suit for possession, which had given rise to the appeal before the Supreme
Court. Trial court decreed the suit. On appeal
the decree was reversed. In the second appeal, the High Court set aside the
judgment and decree of the lower appellate court and restored that of the trial
court. Hence the appeal by special leave. The question considered by the
Supreme Court was whether the appellant was entitled to retain possession of
the suit property. Two pleas had been raised by the appellant in defence. One
was that he, having remained in possession from 08.03.1956, had perfected his
title by prescription. Secondly, he
pleaded that he is entitled to retain possession by operation of Section 53A of
the Transfer of Property Act, 1882 (in short, “T.P.Act”). The Supreme
Court held that as regards the first plea, it is inconsistent with the second
plea. Having came into possession under an agreement, he must have disclaimed
his right thereunder and pleaded and proved the assertion of his independent
hostile adverse possession to the knowledge of the transferor or his
successor-in-interest and that the latter had acquiesced to his illegal
possession during the entire period of 12 years. It was further found that
since the appellant’s claim was founded on Section 53A of the T.P. Act, he
admitted by implication that he came into possession of the land lawfully under
an agreement and continued to remain in possession till the date of suit. In
that context, it was held that the plea of adverse possession was not available
to the appellant.
38. Reason for the above finding
is obvious. A person entering a property either by permission from the owner or
by any derivative right cannot claim adverse possession unless he clearly
establishes that he had abandoned his legal status existed at the time of entry
and re-entered the property with a hostile animus and kept exclusive possession
for a period of 12 years prescribed under Article 65 of the Limitation Act. If
his entry was lawful and with knowledge of the owner, he must establish that he
renounced his original character and started asserting a hostile animus to the
knowledge of the person who inducted him into possession. That principle is
inapplicable in a case where a person sets up exclusive possession and
ownership and alternatively, acquisition of title by adverse possession and
limitation.
39. In George's case the decision in Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak ((2004) 3
SCC 376) is relied on to enter a finding that in
terms of Article 65 of the Limitation Act, the starting point of limitation
commences from the date the defendant's possession becomes adverse to the
plaintiff. That was a decision rendered by a two Judge Bench of the apex Court.
Facts of the case would reveal that the appellants before the Supreme Court
filed a suit for a declaration that they were owners of ancestral house site
and for recovery of possession thereof from the respondents and also for a
permanent prohibitory injunction restraining the respondents from interfering
with their possession. Trial court dismissed the suit on the ground that the
appellants failed to prove their title over the suit land. An appeal was filed
against the trial court's judgment and decree. The lower appellate court
allowed the appeal and decreed the suit. Being aggrieved, a second appeal was
preferred before the High Court. The judgment and decree passed by the lower
appellate court was confirmed by the High Court. Hence the plaintiffs went up
in appeal before the Supreme Court. The Court considered the right of a
reversioner under Hindu law to recover possession of the property. On going
through the decision, I am of the definite view that the facts and
circumstances narrated by the Supreme Court in the judgment and the questions
raised before this Court for consideration are totally different and distinct
and hence the ratio therein has no application.
40. Lastly,
the learned Single Judge in George's case relied on the decision of the Supreme Court in Md.Mohammad Ali v. Jagadish Kalita ((2004) 1 SCC 271), that too a case disposed by a Bench consisting of two learned
Judges. Facts would show that Md.Sadagar Sheikh was the original owner of the
suit premises. He transferred it to Gayaram Kalita and Kashiram Kalita, who
were brothers. By a registered deed of partition the structures standing on the
land were divided into two halves. Son of Gayaram Kalita allegedly amalgamated
both the said holdings and got them registered in his name in the registers of
the Municipality. One of the holdings was sold and a portion of other holding
was leased out in favour of 3rd respondent by the son of Gayaram. Upon the death of the original owner,
viz., Md.Sadagar Sheikh, his sons got the land mutated in their favour in terms
of an order of the Sub Divisional Officer. By a registered deed of sale,
defendants 7 to 9 transferred their possessory rights to the appellant for valuable
consideration. Subsequently the legal representatives of Md.Sadagar Sheikh
(defendants 10 to 12) transferred their right, title and interest in the same
holding to the appellant for consideration. After purchasing the suit premises,
the appellant called upon the 3rd respondent to pay rent to him, which was denied. Supreme Court
considered the principles relating to ouster and adverse possession and finally
remanded the matter to the High Court for a fresh consideration without
entering a finding as to whether the rights of the contesting respondents,
claimed on the basis of ouster, adverse possession and limitation, were to be
upheld or not. In that context, the Supreme Court held that long and continuous
possession by itself would not constitute adverse possession. Even non-sharing
of the rents and profits of the land by a co-sharer does not amount to ouster
so as to give title by adverse possession. The ratio in the decision has no
application to the facts and circumstances revealed in the present case as well
as in George's case.
41. Sri.Chandran Pillai strongly
contended that the above decisions rendered by the Supreme Court in a
completely different factual matrix have been wrongly applied by the learned
Single Judge in George's case to arrive at the following conclusion:
“24. Put it differently, where possession bases on a lawful
title, that it is my property, it will not be considered to be adverse
possession to anybody else. Mere possession, however, long does not necessarily
mean that it is adverse to the true owner. Adverse
possession really means the hostile possession which is expressly or impliedly
in denial of the true owner and in order to constitute adverse possession, the
possession proved must be adequate in continuity, in publicity and in extent so
as to show that it is adverse to the true owner.
25.
He must enjoy the property adversely to the title holder's right and interest,
after making him known that such an enjoyment was against his interest. A purchaser
may be in possession of some portion of the property of the true owner on the
bona fide belief that, that much extent also forms part of the property, which
he purchased. His belief is a mistaken notion only. He did not know that it is
the property of the true owner till the true owner sues against him. Such purchaser
cannot claim the right of adverse possession due to the absence of 'animus possidendi'.
In short, a person who possess the property of another with a mistaken belief
that he himself is the true owner of that property or that much extent of
property also forms part of his remaining property cannot claim right of
adverse possession as he does not know or recognize and acknowledge that it is
the property of another person and that possession can never be in denial of
the true owner's possession. The person who claims adverse possession must
plead the identity of the true owner against whom he claims and acknowledge him
in his plea. Intention to dispossess the true owner is totally absent, when he
possesses property as his own property or nobody's property. Intention to
possess cannot be substituted for intention to dispossess, which is an
essential ingredient of adverse possession. There cannot be an adverse
possession against an unknown person and such a claim is unsustainable under
law. Necessarily, it follows that the claim of adverse possession pleaded and reserved
alternatively, to press into service, anticipating a contingency, if any, when
he fails to prove his possession under title as true owner, is unsustainable
under the law of adverse possession and liable to be rejected. Needless to say,
such pleas are mutually opposing and destructive.”
42. Sri.Chandran Pillai heavily relied on the decision of the Supreme
Court in Kshitish Chandra Bose v.
Commissioner of Ranchi (AIR 1981 SC 707) to
contend that the decisions referred to in George's case, rendered by two Judge Benches of the Supreme Court, run
contrary to the ratio in Kshitish
Chandra Bose's case (supra). On a close
reading of all the decisions, I do not find any reason to hold that the ratio
in the decisions by two Judge Benches referred to above are in conflict with
that in Kshitish Chandra Bose's case. Facts and circumstances set out in the decisions above
mentioned, clearly distinguish them from the facts in Kshitish Chandra Bose's case.
Hence, there is no incongruity in the legal principles enunciated in the said
decisions. Only thing is that the legal principles stated in the above
decisions, laid down in varied set of facts, could not have been applied to the
facts in George's case.
43. Facts in Kshitish Chandra Bose's case
would show that the Supreme Court was handling a plaintiff's appeal by special
leave. He filed a suit for declaration of title and recovery of possession and
also for a permanent prohibitory injunction restraining the defendant
Municipality from disturbing his possession. In the suit, the plaintiff raised
a claim in respect of a plot within Ranchi Municipality on the ground that he
had acquired title to the land by virtue of a hukumnama
granted to him by the landlord as far back as
17.04.1912. Apart from the question of title, the plaintiff further pleaded
that even if the land belonged to the defendant Municipality, he had acquired
title by prescription by being in possession of the land to the knowledge of
the Municipality for more than 30 years, that is to say, from 1912 to 1957.
Trial court accepted the plaintiff's case and decreed the suit. Defendant
filed an appeal before the Additional Judicial Commissioner, Ranchi, who, after
consideration of the evidence, affirmed the finding of the trial court and
maintained the decree. Thereafter the respondent Municipality went up in second
appeal to the High Court. A learned Single Judge held that there was no clear
evidence to show that the plaintiff had obtained title by adverse possession
and by his judgment, remanded the case to the trial court for a decision only
on the question of title. The effect of the order of remand was that, so far as
the plaintiff's case that he had acquired title by prescription was concerned,
it was finally decided against him. After remand, the Additional Judicial
Commissioner held that the Municipality had proved its title to the land in
dispute and accordingly dismissed the suit. Again the plaintiff went up before
the High Court which affirmed the finding of the Additional Judicial
Commissioner and dismissed the appeal. Hence the appeal by special leave.
44. After considering the rival
contentions elaborately, the Supreme Court laid down the law in paragraph 8 as
follows:
“It was then observed by
the High Court that mere sporadic acts of possession exercised from time to
time would not be sufficient for the acquisition of title by adverse
possession. As discussed above, the High Court has not at all cared even to go
through the evidence regarding the nature of the acts said to have been
committed by the appellant nor to find out whether they were merely sporadic or
incidental. Another
reason given by the High Court was that the adverse possession should have been
effective and adequate in continuity and in publicity. Here, the High Court has
gone wrong on a point of law. All that the law requires is that the possession
must be open and without any attempt at concealment. It is not necessary that
the possession must be so effective so as to bring it to the specific knowledge
of the owner. Such
a requirement may be insisted on, where an ouster of title is pleaded but that
is not the case here. The
findings, however, clearly show that the possession of the plaintiff was
hostile to the full knowledge of the municipality. …........”
(underline supplied)
45. Three Judge Bench of the Supreme Court in Kshitish Chandra Bose's case
lucidly described the essential requirements in a case where a party claims
title by adverse possession and limitation and a co-owner/co-sharer claims
title by ouster and adverse possession. This decision is a binding authority
for both the questions raised in the case on hand, as well as in George's case. The Supreme Court
did not find fault with a suit, where a plea of ownership and an alternative
plea of acquisition of title by adverse possession and limitation were raised.
Secondly, the Supreme Court in categoric terms held that to constitute adverse possession,
law only requires that the possession must be open and without any attempt at
concealment. Further, it is not necessary that the possession must be so
effective so as to bring it to the specific knowledge of the owner. In explicit
terms, it was found by the Supreme Court that such a requirement could be
insisted only where ouster is pleaded between co-owners/co-sharers.
46. The above principles in Kshitish Chandra Bose's case were
reiterated by a two Judge Bench of the Supreme Court in T.Anjanappa v. Somalingappa
((2006) 7 SCC 570), notwithstanding that Kshitish Chandra Bose's case was
not referred to therein. In paragraph 20 the following observations are made:
“It is well-recognised proposition in law that mere possession
however long does not necessarily mean that it is adverse to the true owner.
Adverse possession really means the hostile possession which is expressly or
impliedly in denial of title of the true owner and in order to constitute
adverse possession the possession proved must be adequate in continuity, in
publicity and in extent so as to show that it is adverse to the true owner. 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.”
47. I take
note of a decision rendered by two Judge Bench of the Supreme Court in Dagadabai (dead) by L.Rs. v.Abbas @ Gulab Rustum Pinjari (2017
(2) KLJ 517), wherein certain
observations made are contrary to the larger Bench decision. Facts would show
that a muslim lady filed a suit for possession, in relation to the suit land,
against the defendant, alleging that he was in unlawful possession of the
property. The
defendant, claimed to be the adopted son of the plaintiff's father, resisted
the suit by claiming title to the property. Further, he contended that he had
been in long and continuous possession of the suit property for more than 12
years prior to the date of filing the suit. Hence he contended that he acquired
title on the strength of adverse possession and limitation. While
considering the issues, the Bench, without referring to any of the binding
authorities on the point, held thus:
“In
our considered opinion, these observations of the High Court are against the
law of adverse possession. It is a settled principle of law of adverse possession
that the person, who claims title over the property on the strength of adverse
possession and thereby wants the Court to divest the true owner of his
ownership rights over such property, is required to prove his case only against
the true owner of the property. It is equally well - settled that such person must
necessarily first admit the ownership of the true owner over the property to
the knowledge of the true owner and secondly, the true owner has to be made a party
to the suit to enable the Court to decide the plea of adverse possession
between the two rival claimants.”
48. I am
afraid, the above statements of law in the decision are contrary to the clear
and indisputable pronouncement of law in Kshitish
Chandra Bose's case and T.Anjanappa's case. It is therefore
evident that the ratio in Dagadabai's case cannot be regarded as a binding precedent.
49. The principles relating to
adverse possession succinctly summed up are thus:In order to constitute adverse
possession, it must be established that a person having no right to possess the
property had entered into possession thereof and that his possession was
adverse to the true owner. Adverse possession must be open and without any
attempt at concealment. Adverse possession really means the hostile possession which
is expressly or impliedly in denial of title of the true owner. Law does not
require that the adverse possession must be so effective, so as to bring it to
the specific knowledge of the owner, because that is only an essential ingredient
where ouster is pleaded by one co-owner/co-sharer against the other. As the
possession must be open and hostile enough to be capable of being known by the
parties interested in the property, it is not necessary that there should be
evidence of the adverse possessor actually informing the real owner of the
former's hostile action. It is also well settled that a person entering a land
belonging to another under some kind of a legal right or permission cannot
prescribe adverse title, unless he renounced that right to the knowledge of the
person who put him in possession and reentered the property with a hostile
animus. Further more, possession required must be adequate in continuity, in
publicity and in extent to show that it is a possession adverse to the
competitor. Above legal aspects will clearly show that a person in adverse
possession should know the identity of the real owner is not a requirement at
all for prescribing adverse title.
50. Points discussed in the
foregone paragraphs will in substance answer the substantial questions of law
raised for consideration in this appeal. In order to specifically answer the
question whether ownership over the plaint schedule property and prescriptive
title could be put forward as an alternative claim, the same shall be
considered in the succeeding paragraphs.
51. Firm Srinivas Ram v. Mahabir Prasad (AIR 1951 SC 177) is an authoritative pronouncement by a three Judge Bench of the apex
Court on the right to plead inconsistent allegations. In paragraph 9 the
following observations are made:
“A
plaintiff may rely upon different rights alternatively and there is nothing in
the C.P.C. to prevent a party from making two or more inconsistent sets of
allegations and claiming relief thereunder in the alternative. Ordinarily, the
court cannot grant relief to the plaintiff on a case for which there was no foundation
in the pleadings and which the other side was not called upon or had an
opportunity to meet. But
when the alternative case, which the plaintiff could have made, was not only
admitted by the defendant in his written statement but was expressly put
forward as an answer to the claim which the plaintiff made in the suit, there
would be nothing improper in giving the plaintiff a decree upon the case which
the defendant himself makes. A demand of the plaintiff based on the defendant's
own plea cannot possibly be regarded with surprise by the latter and no
question of adducing evidence on these facts would arise when they were
expressly admitted by the defendant in his pleadings. In such circumstances, when
no injustice can possibly result to the defendant, it may not be proper to
drive the plaintiff to a separate suit.”
52.
Facts in Kshitish Chandra Bose's case (supra) would show that the plaintiff put forward a claim of
having title and in the alternative, prescription of title by adverse
possession and limitation. There cannot be a bar for an alternative contention
as above, for the reason that in both the situations, the question of exclusive
possession is the determining factor.
53. As we all know, there are
certain claims which are mutually inconsistent and exclusive, like easement by
prescription and easement of necessity, ownership and easement, lease and
license, etc. In the case of easement by prescription and easement of
necessity, origin of the rights are entirely different. Easement right by
prescription arises by proving the ingredients under Section 15 of the
Easements Act, 1882 (in short, “the Easements Act”), whereas a claim for
easement of necessity, under Section 13, essentially arises out of severance of
the tenements by transfer, partition or bequest. It is therefore clear that
they cannot be claimed together as they originate from different sources.
Likewise, easement and ownership cannot be claimed together for the reason that
easement is a right not claimable on one's own property going by the definition
in Section 4 of the Easements Act. Lease and license also cannot be claimed
together because a lease is a transfer of property falling within the
provisions of the TP Act and a license is in the nature of a permission granted
to one person for doing something in or upon the immovable property of the
grantor, under the provisions of Section 52 of the Easements Act, which does
not involve a transfer of property. Such incompatible rights originate from
different sources and, therefore, nature of their enjoyment also would be
different.
54. Theoretically the expression
“property” is synonymous with “title”. The term is further defined as meaning
that to which a person has a legal title. In the Blackstonian sense, “property”
means those things which one has the right to hold, possess, and enjoy to the
exclusion of any other individual in the universe (see Corpus Juris Secundum - Vol.73).
Title to a thing, according to the Words
and Phrases (Permanent Edition 41A), denotes
an aggregate of interests in the thing of such an extent that if the person,
who has the title is not under a duty to deal with the interests for the
benefit of another person, he is the owner of the thing. Exclusive possession
of the thing owned and the right to exclude others from possession are two
essential components in the bundle of rights called “title” or “ownership”. In
other words, every owner has a right to possess property in exclusion of all
the others. Every person holding property under a claim of adverse possession
keeps possession of the same with a hostile animus to exclude all others,
including the true owner. Therefore, both in a claim of ownership and adverse
possession, assertive possession is an essential component. In the case of a
person claiming adverse title by prescription, he must have been holding
possession with an open hostile animus for the prescribed period. Therefore, I
find no reason to think that there is any impediment in claiming ownership of
property and in the alternative, a prescriptive title to it by adverse
possession and limitation.
55. Aforementioned reasons lead
me to an irresistible conclusion that there is no legal hurdle for a plaintiff
to set up title to an immovable property and in the alternative, a prescriptive
title acquired by adverse possession and limitation for claiming any relief in respect
of the property. Binding
authorities mentioned above, especially P.Lakshmi
Reddy's case, Kshitish Chandra Bose's case and Firm Sriniwas Ram's case, unambiguously
show that there is no bar in raising both the pleas as above. It is clearly
mentioned in Kshitish Chandra
Bose's case that unlike in the case of a claim of
ouster between co-owners, a person claiming a prescriptive title need not bring
the factum of his possession to the specific knowledge of the owner. Only condition
for prescribing title by adverse possession and limitation is that the
possession must be open and without any attempt at concealment. Natural
corollary of those observations is that a person in adverse possession need not
specifically know who the real owner is. Only thing essential is that the
possession must be open and notorious as to raise a presumption of notice to
the true owner. With due respect, I notice that the learned Single Judge did
not consider in George's case the binding precedents laid down by the larger Benches
mentioned above. Learned Judge, after referring to the decisions rendered by Benches
of lesser strength, which can easily be distinguished on facts, held that a
person, who claims adverse possession, must prove identity of the true owner
against whom he claims. I am afraid, it is an incorrect statement of law.
Therefore, I respectfully hold that the ratio in George's case is not good law in
view of the fact that it goes against the principles laid down in the binding
precedents rendered by larger Benches of the Supreme Court mentioned above.
56. On understanding the legal
principles as above, I am bound to examine soundness of the principles in Raman's case and Devaki Pillai's case (supra). In Raman's case, the question posed
for determination was whether possession of a property for more than 40 years
before institution of the suit by a person as full owner under the impression
that it belonged to him without being aware that it was part of land belonging
to another would constitute adverse possession capable of acquiring title.
Learned single Judge made the following observations:
“Adverse possession is hostile possession under a claim or
colour of title, actual, open, uninterrupted, notorious, exclusive and
continuous. It must be adequate in continuity, in publicity and in extent to
show that it is possession adverse to the competitor. It ripens into title if
it has continued for the statutory period. The animus to hold possession for
acquiring title should be present and the invasion of plaintiff's right must be
such as to give him a cause of action. The possession must be overt without
concealment, though necessarily not to the notice of the real owner. It is
enough if there is sufficient publicity so as to attract the notice of the
plaintiff, though he fails to take notice of the same. The openness of the possession
must be such that the person against whom time is running ought (sic-out), if
he only cares to exercise due diligence, to be aware as to what is happening.
Due vigilance is not negligence of the true owner. If he keeps his eyes shut
against open invasion into his proprietory rights, he does so at his risk.
Though some decisions said that there cannot be adverse possession if the
defendant himself did not know that he was occupying somebody else's land, that
does not appear to be the correct law. What is required to have hostile animus
is not the knowledge that any particular individual is the owner and he is
holding against him, but the animus to hold the property openly under the claim
or colour of title in derogation of the title of all others, whoever they may
be, known or unknown. Possession as full owner implies denial of title of all
others. That is why adverse possession is said to be hostile possession under
the claim or colour of title. Possession under a wrong or mistaken impression
that the defendant himself is the owner and nobody else in the world has ownership
is also adverse possession, even if the fact that somebody else is the owner or
his identity is not known. The
possessor, who claims independent title, need not be aware that someone else is
owner and even if he is aware that he is not the true owner, he is not expected
to make an enquiry as to who the true owner is. It is for the true owner to
keep his eyes open to protect his right against open invasions.
57. In Devaki Pillai's case, another learned
single Judge also considered an identical question whether an act of possession
of property by a person believing it to be one's own property would enable him
to claim adverse possession once it is found that the property is included in
the title deed of his neighbour. After referring to various decisions,
following observations are made:
“Even
if a person enjoys the property as his own for a large number of years and for
more than 12 years before the date of suit and if the true owner does not take
any action within the period of limitation it can be said the person in
possession has perfected title by adverse possession as the three conditions of
'peaceful', 'open' and 'continuous' possession to constitute adverse possession
are satisfied by him. The
burden to plead and prove such possession is on him and whether he has
succeeded in that attempt is a question of fact.”
58. On a careful reading of the facts involved in the above decisions,
I am of the view that the observations cannot be faulted in the light of the
binding precedents mentioned therein, as well as those mentioned above. With
due respect, I am of the opinion that finding of the learned single Judge in George's case, that the principles
in Raman's case and Devaki Pillai's case (supra) are not
good law, is an incorrect statement and the ratio therein are legally sound in
the light of the principles laid down in the larger Bench decisions.
59. I have already seen that the
factual findings by the lower appellate court, regarding adverse possession and
limitation claimed by the respondents, cannot be disturbed in the second appeal
as it is well founded on evidence. True, the respondents failed to establish
title over the plaint schedule property as no step was taken to identify the
land with reference to the title deeds under which they put forward a claim.
However, fact that they were holding the property with an open hostile
assertion of right for more than 40 years has been revealed from the
unchallenged evidence. Hence their
claim of right over the property by a prescriptive title is legally sustainable.
I find no reason to interfere with the finding of the lower appellate court.
The substantial questions of law are decided as above and certainly they go in
favour of the respondents.
In the
result, the appeal is dismissed confirming the judgment and decree passed by
the lower appellate court.
All pending
interlocutory applications will stand dismissed.
Comments
Post a Comment