Hemaji Waghaji Jat Vs.
Bhikhabhai Khengarbhai Harijan & Ors.  INSC 1620 (23 September 2008)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1196 OF 2007 Hemaji
Waghaji Jat ..Appellant Versus Bhikhabhai Khengarbhai Harijan & Others ..
Dalveer Bhandari, J.
appeal is directed against the judgment dated 27.12.2004 passed by the High
Court of Gujarat at Ahmedabad in Second Appeal No. 146 of 2004.
facts of the case which are necessary to dispose of this appeal are as under:-
2 The appellant who has lost both before the Court of learned District Judge,
Palanpur and the High Court has approached this Court by way of special leave
petition under Article 136 of the Constitution.
appellant (who was the plaintiff before the trial court) filed a suit for
declaration of permanent injunction with the following prayer:
"1) To hold and
declare that the plaintiff is the lawful owner and occupier in respect of land
of survey No. 66/3 admeasuring 6 Acre 11 Guntha situated in the boundaries of
village Yavarpura, Taluka Deesa.
2) That the
defendants of this case themselves or their agents, servants, family members do
not cause or to be caused hindrance in the possession and occupation of the plaintiff
in respect of land of survey No. 66/3 admeasuring 7 Acre 10 Guntha in the
boundaries of village Yavarpura and also to grant permanent stay order to the
effect that they not forcibly enter into the said land of survey No. 66/3
against the defendants and in favour of the plaintiff of this case.
3) To grant any other
relief which is deemed fit and proper.
4) To award the
entire cost of this suit on the defendants."
The trial court
framed the following issues:
"1. Whether the
plaintiff has proved that he is the lawful owner of the disputed land?
2. Whether the
plaintiff is entitled for permanent injunction as prayed for? 3. What order and
The trial court held
that in the year 1925 the land was purchased for Rs.75/- from Gama Bhai Gala
Bhai by the appellant and he is having possession of the same for the last 70
years. The learned trial court in the same judgment has also held that in 1960
the appellant forcibly took possession of the land in question and he has been
in continuous possession till 1986, which is proved from the register of right
of cultivation. Thus, the appellant became owner of the suit property by
may be significant to note that neither the appellant ever pleaded adverse
possession nor an issue was framed by 4 the trial court with regard to the
ownership of the respondents by adverse possession. According to the appellant,
there is no basis for the finding of the ownership of the appellant on the
basis of adverse possession.
respondents being aggrieved by the said judgment of the trial court dated
5.4.1986 preferred an appeal before the learned District Judge, Palanpur,
Gujarat. The learned District Judge, after hearing the counsel for the parties
and perusing the entire record of the case, came to the definite conclusion
that the appellant herein has failed to prove that the land in question was
purchased by him.
learned District Judge referred to in the case of B. N. Venkatarayapa v. State
of Karnataka [(1998) 2 CLJ 414 S.C.] wherein it was held that in absence of
crucial pleadings regarding 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 of the original grantee, the petitioners
cannot claim that they have perfected their title by adverse possession. The 5
burden of proof lies on the petitioners to show that they have title to and
have been in possession and he was dispossessed and discontinued his possession
within 12 years from the date of filing his suit. Adverse possession implies
that it commenced in wrong and is maintained against right.
learned District Judge further held as under:
trial Judge has wrongly concluded that plaintiff has proved his title and
ownership of this suit land through Revenue record and also by adverse
possession and competent authority i.e. Special Secretary has also dismissed
the revision application of plaintiff and the defendants' ownership was
confirmed by the Special Secretary and thus, the learned trial Judge has erred
in holding that plaintiff is a owner and holding that the title and also become
owner through adverse possession. Thus, this appeal deserves to be allowed and
in these circumstances and discussion as above, it appears that learned trial
Judge has committed error in decreeing the suit in favour of plaintiff."
appellant aggrieved by the said judgment of the learned District Judge
preferred an appeal under section 100 of the Code of Civil Procedure before the
High Court. In the impugned judgment, it has been held that the appellate court
continues to be the final court on facts and law. The second 6 appeal to the
High Court lies only when there is substantial question of law. The High Court
relied on Santosh Hazari v. Purushottam Tiwari (Dead) By LRs. AIR 2001 SC 565.
The relevant portion of the said judgment reads as under:
appellate Court continues, as before, to be the final court of facts; pure
findings of fact remain immune from challenge before the High Court in Second
Appeal. Now the first appellate Court is also a final court of law in the sense
that its decision on a question of law even if erroneous may not be vulnerable
before the High Court in Second Appeal because the jurisdiction of the High
Court has now ceased to be available to correct the error of law or the
erroneous findings of the first appellate Court even on questions of law unless
such question of law be a substantial one."
High Court held that the respondents clearly established their title over the
suit property. The relevant portion of the judgment of the High Court reads as
first appellate Judge has also discussed the relevant entries as well as order
passed by Deputy Collector, Collector and Special Secretary in those
proceedings and on the basis of the same, the learned first appellate Judge has
reached to the finding that the plaintiff has failed to establish title over
the suit property."
7 The appeal filed
by the appellant was dismissed by the High Court.
have heard learned counsel for the parties at length and perused the impugned
judgment and judgments of the subordinate courts. The first appellate court and
the High Court have clearly held that the appellant has failed to establish his
title over the suit property. The appellant also failed to establish that he
has perfected his title over the suit property by way of adverse possession.
deem it appropriate to deal with some important cases decided by this court
regarding the principle of adverse possession.
Secretary of State for India v. Debendra Lal Khan 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 8 adequate in continuity, in publicity and in extent to show that it is
possession adverse to the competitor.
Court in P. Lakshmi Reddy v. L. Lakshmi Reddy AIR 1957 SC 314, while following
the ratio of Debendra Lal Khan's case (supra), observed as under:
"But it is well
settled that in order to establish adverse possession of non-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 the co-heirs.
When one co-heir is
found to be in possession of the properties it is presumed to be one 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-heirs' title. 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 be knowledge of the other so as to constitute ouster."
The court further
"The burden of
making out ouster is on the person claiming to displace the lawful title of a
co-heir by his adverse possession."
S.M. Karim v. Bibi Sakina AIR 1964 SC 1254, Hidayatullah, J. speaking for the
court observed as under:- "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."
facts of R. Chandevarappa & Others v. State of Karnataka & Others
(1995) 6 SCC 309 are similar to the case at hand. In this case, this court
observed as under:- "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 10 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."
D. N. Venkatarayappa and Another v. State of Karnataka and Others (1997) 7 SCC
567 this court observed as under:- "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."
Md. Mohammad Ali (Dead) By LRs. v. Jagadish Kalita & Others (2004) 1 SCC
271, paras 21-22, this Court observed as under:
"21. For the
purpose of proving adverse possession/ouster, the defendant must also prove
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
Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779 at para 11, this
court observed as under:- "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
The court further
observed that 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 12 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. 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.
Saroop Singh v. Banto (2005) 8 SCC 330 this Court observed:
"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)
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 (Dead) by LRs. v.
Jagdish Kalita and Others (2004) 1 SCC 271)"
principle has been reiterated later in the case of M. Durai v. Muthu and Others
(2007) 3 SCC 114 para 7. This Court observed as under:
"...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."
court had an occasion to examine the concept of adverse possession in T.
Anjanappa & Others v. Somalingappa & Another [(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 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.
14 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.
a relatively recent case in P. T. Munichikkanna Reddy & Others v. Revamma
& Others (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 system. We
deem it appropriate to reproduce relevant passages in extenso. The court
dealing with adverse possession in paras 5 and 6 observed as under:- "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
S.W.2d 569 (1957);
15 Monnot v. Murphy
207 N.Y. 240, 100 N.E. 742 (1913); City of Rock Springs v. Sturm 39 Wyo. 494,
273 P. 908, 97 A.L.R. 1 (1929).]
6. Efficacy of
adverse possession law in most jurisdictions depend on strong limitation
statutes by operation of which right to access the court expires through
effluxion 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. 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 color of title. (See American Jurisprudence, Vol. 3, 2d, Page 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 can not be given a complete go by. Simple application
of Limitation shall not be enough by itself for the success of an adverse
is another aspect of the matter, which needs to be carefully comprehended.
According to Revamma's case, the 16 right of property is now considered to be
not only a constitutional or statutory right but also a human right. In the
said case, this Court observed that "Human rights have been historically
considered in the realm of individual rights such as, right to health, right to
livelihood, right to shelter and employment, etc. but now human rights are gaining
a multifaceted dimension. Right to property is also considered very much a part
of the new dimension. Therefore, even claim of adverse possession has to be
read in that context. The activist approach of the English Courts is quite
visible from the judgments of Beaulane Properties Ltd. v. Palmer (2005) 3 WLR
554 and JA Pye (Oxford) Ltd. v. United Kingdom (2005) 49 ERG 90. The Court
herein tried to read the human rights position in the context of adverse
possession. But what is commendable is that the dimensions of human rights have
widened so much that now property dispute issues are also being raised within
the contours of human rights."
the expanding jurisprudence of the European Court of Human Rights, the Court
has taken an unkind view to the 17 concept of adverse possession in the recent
judgment of JA Pye (Oxford) Ltd. v. United Kingdom (supra) which concerned the
loss of ownership of land by virtue of adverse possession.
the said case, "the applicant company was the registered owner of a plot
of 23 hectares of agricultural land.
The owners of a
property adjacent to the land, Mr. and Mrs. Graham ("the Grahams")
occupied the land under a grazing agreement. After a brief exchange of
documents in December 1983 a chartered surveyor acting for the applicants wrote
to the Grahams noting that the grazing agreement was about to expire and
requiring them to vacate the land."
Grahams continued to use the whole of the disputed land for farming without the
permission of the applicants from September 1998 till 1999. In 1997, Mr. Graham
moved the Local Land Registry against the applicant on the ground that he had
obtained title by adverse possession. The Grahams challenged the applicant
company's claims under the 18 Limitation Act, 1980 ("the 1980 Act")
which provides that a person cannot bring an action to recover any land after
the expiration of 12 years of adverse possession by another.
judgment was pronounced in favour of JA Pye (Oxford) Ltd. v. Graham 2000 Ch.
676 : (2000) 3 WLR 242.
The Court held in
favour of the Grahams but went on to observe the irony in law of adverse
possession. The Court observed that the law which provides to oust an owner on
the basis of inaction of 12 years is "illogical and
The effect of such law
would "seem draconian to the owner" and "a windfall for the
court expressed its astonishment on the prevalent law ousting an owner for not
taking action within limitation is illogical.
applicant company aggrieved by the said judgment filed an appeal and the Court
of Appeal reversed the High Court decision. The Grahams then appealed to the
House of 19 Lords, which, allowed their appeal and restored the order of the
House of Lords in JA Pye (Oxford) Ltd. v. Graham (2003) 1 AC 419 observed that
the Grahams had possession of the land in the ordinary sense of the word, and,
therefore, the applicant company had been dispossessed of it within the meaning
of the Limitation Act of 1980.
deem it proper to reproduce the relevant portion of the judgment in Revamma's
the applicants moved the European Commission of Human Rights (ECHR) alleging
that the United Kingdom law on adverse possession, by which they lost land to a
neighbour, operated in violation of Article 1 of Protocol 1 to the Convention
for the Protection of Human Rights and Fundamental Freedoms ("the
52. It was contended
by the applicants that they had been deprived of their land by the operation of
the domestic law on adverse possession which is in contravention with Article 1
of Protocol 1 to the Convention for the Protection of Human Rights and
Fundamental Freedoms ("the Convention"), which reads as under:
natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions except in the public
interest and subject to the conditions provided for by law and by the general
principles of international law.
provisions shall not, however, in any way impair the right of a State to
enforce such laws as it deems necessary to control the use of property in
accordance with the general interest or to secure the payment of taxes or other
contributions or penalties."
This Court in
Revamma's case (supra) also mentioned that the European Council of Human Rights
importantly laid down three-pronged test to judge the interference of the
Government with the right of "peaceful enjoyment of property".
53. In Beyeler v.
Italy [GC] No.33202 of 1996 ' ' 108-14 ECHR 2000-I, it was held that the
"interference" should comply with the principle of lawfulness and
pursue a legitimate aim (public interest) by means reasonably proportionate to
the aim sought to be realised.
The Court observed:
question nevertheless remains whether, even having regard to the lack of care
and 21 inadvertence on the part of the applicants and their advisers, the
deprivation of their title to the registered land and the transfer of
beneficial ownership to those in unauthorised possession struck a fair balance
with any legitimate public interest served.
circumstances, the Court concludes that the application of the provisions of
the 1925 and 1980 Acts to deprive the applicant companies of their title to the
registered land imposed on them an individual and excessive burden and upset
the fair balance between the demands of the public interest on the one hand and
the applicants' right to the peaceful enjoyment of their possessions on the
There has therefore
been a violation of Article 1 of Protocol 1."
55. The question of
the application of Article 41 was referred for the Grand Chamber Hearing of the
ECHR. This case sets the field of adverse possession and its interface with the
right to peaceful enjoyment in all its complexity.
56. Therefore it will
have to be kept in mind the courts around the world are taking an unkind view
towards statutes of limitation overriding property rights."
to the facts of this case, admittedly, the appellants at no stage had set up
the case of adverse 22 possession, there was no pleading to that effect, no
issues were framed, but even then the trial court decreed the suit on the
ground of adverse possession. The trial court judgment being erroneous and
unsustainable was set aside by the first appellate court. Both the first
appellate court and the High Court have categorically held that the appellant
has miserably failed to establish title to the suit land, therefore, he is not
entitled to the ownership. We endorse the findings of the first appellate court
upheld by the High court.
the appeal being devoid of any merit is accordingly dismissed with costs, which
is quantified at Rs.25,000/-.
parting with this case, we deem it appropriate to observe that the law of
adverse possession which ousts an owner on the basis of inaction within
limitation is irrational, illogical and wholly disproportionate. The law as it
exists is extremely harsh for the true owner and a windfall for a dishonest
person who had illegally taken possession of the property of the true owner.
The law ought not to benefit a 23 person who in a clandestine manner takes
possession of the property of the owner in contravention of law. This in
substance would mean that the law gives seal of approval to the illegal action
or activities of a rank trespasser or who had wrongfully taken possession of
the property of the true owner.
fail to comprehend why the law should place premium on dishonesty by
legitimizing possession of a rank trespasser and compelling the owner to loose
its possession only because of his inaction in taking back the possession
our considered view, there is an urgent need of fresh look regarding the law on
adverse possession. We recommend the Union of India to seriously consider and
make suitable changes in the law of adverse possession. A copy of this judgment
be sent to the Secretary, Ministry of Law and Justice, Department of Legal
Affairs, Government of India for taking appropriate steps in accordance with
(Harjit Singh Bedi)