& Ors Vs. Somalingappa and Anr  Insc 515 (22 August 2006)
Pasayat & Lokeshwar Singh Panta
out of SLP (C) Nos. 24307-24308 of 2004) ARIJIT PASAYAT, J
in these appeals is to the correctness of the judgment rendered by a learned
Single Judge of the Karnataka High Court allowing in part two Second Appeals
filed by the respondents in the present appeals.
facts in a nutshell are as under:
appeals were filed before the High Court against the judgment and decree passed
by Civil Judge, Senior Division, Bellary in RA No.15/94 and RA No.16/94 arising out of O.S.No.168/85 and
O.S.No.286/88 respectively on the file of Principal Munsiff, Bellary. O.S.No.168/85 was filed by the
appellants. They filed a suit for declaration of title in respect of the suit
schedule property described as a house site measuring 25' x 75' pictorially
described in the rough sketch accompanying the plaint and which form part of
CTS No.373/3A/1A/2/B in Block No.XXIV, Ward No.XXII, Devinagar, Bellary City.
The plaintiffs claimed title to the property by virtue of entries in the
Municipality records. The suit site was originally granted by Municipality to
one Thippanna in the year 1962 from whom one Siddalinagana Gouda purchased in
the year 1971 under registered sale deed.
purchased the suit property from Siddalingana Gouda by a registered sale deed
in the year 1978. The plaintiffs purchased the suit site from Narasimhappa
under Ex.P.1 on 29.5.1985, two days after filing of the suit. It is said that
the erstwhile owner Narasimhappa had mortgaged the property in favour of
plaintiff. According to plaintiffs, the defendants had encroached upon a
portion of the suit property to an extent of 15' x 25', put a hutment about
three years prior to the suit, and therefore, on the strength of title the
plaintiff sought for the relief of declaration of title and possession and also
sought for injunction against the defendant not to repair or put up any
permanent structure on the suit site. The defendants filed the written
statement denying the title of the plaintiff contending that the defendants are
in possession of the premises since the year 1969 by putting up hutment and
paying tax to the municipality. The defendants also contended that the property
is a government land and they are in adverse possession of the property. A defence
was also taken that the area has been declared as a slum area. Hence, they
prayed for dismissal of the suit.
the pendency of O.S. No.168/85, the defendant No.1 therein filed a suit in O.S.
No.286/88. The plaint averments are reproduction of the written statement in
trial Court dismissed the suit of T. Anjanappa, T. Sekharam and T. Govind
(plaintiffs in O.S. NO.168/85) by rejecting claim of plaintiffs' title to the
property. The suit filed by T. Somalingappa i.e. O.S.No.286/88 came to be
appellants filed two appeals against the judgment and decree in O.S.No.168/85
and O.S.No.286/88 before the Civil Judge, Senior Division, Bellary. In appeal, the appellate court set
aside the judgment and decree of the trial Court in O.S.No.168/85 and
O.S.No.286/88, upheld the title of the plaintiffs and also granted relief of
possession and thus allowed both the appeals filed by the plaintiffs. Second
Appeals were filed challenging correctness thereof by T. Somalingappa and Dakshyanamma.
following substantial questions of law were formulated at the time of admission
appellate Court has concurred with the findings of the Principal Munsiff
regarding the appellant's possession and enjoyment of the property even before
the purchase of the property by the respondent, whether the appellate court was
justified in dismissing the suit of the appellants for injunction which was
decreed by the Principal Munsiff.
schedule property which was declared by the Government as a slum area, the
action of the Municipality in granting allotment of the same in favour of the
other persons. Whether the Municipality has got the power to allow the site,
which was declared as a slum area by the government in favour of other persons.
following additional substantial questions of law were framed at the time of
appellate Court was right in declaring title of the plaintiffs on the basis of
Ex.P.1 which came to be executed after filing of the suit in O.S.No.168/85?
appellate court committed error in appreciating the oral and documentary
evidence regarding the plea of adverse possession put forth by the defendants
and the findings thereon are perverse and contrary to evidence on record?
According to the High Court, ticklish situation arose in the legal combat
between the parties. When the suit O.S.No.168/85 was filed, obviously the plaintiffs
had no title to the property, but they sought for declaration of title. In the
absence of title, there was no basis for the plaintiffs to seek possession from
the defendants. It was contended that the plaintiffs had taken the property as
a security in a mortgage transaction from the erstwhile owner. High Court noted
that the mortgage deed is not produced. It was observed that there is nothing
on record to show that it was a possessory mortgage. Unless the plaintiffs had
some kind of title or possessory interest they could not have sought for relief
to the High Court though the defendants were in possession under the mistaken
assumption of title with themselves or with the Government, same cannot be a
ground to hold that the possession is not a hostile possession from the
standpoint of the real owner. It was further held that the real owner when
dispossessed under Article 64 of the Indian Limitation Act, 1963 (in short the
'Limitation Act') has to seek possession within 12 years from the date of
dispossession. It was therefore held that the findings of the court below i.e.
first appellate Court that the defendants had failed to prove the plea of
adverse possession is perverse and contrary to law and evidence on record.
After holding so, it was further held that though the documents produced by the
defendants do not fully establish the case of adverse possession to the full
extent of 15' x 75', yet the stand of the defendants about actual physical
possession read with the admission of the plaintiffs sufficiently establish
that the defendants were in adverse possession of 15' x 75'. It was further
held that even otherwise, the suit for possession to that extent was not filed
within 12 years of dispossession and therefore grant of decree for declaration
of the title and possession to that extent in favour of plaintiffs (appellants
herein) is bad in law and liable to be set aside.
counsel for the appellants submitted that the High Court's approach is clearly
unsustainable in law. The concept of adverse possession has been clearly
misunderstood by the High Court.
counsel for the respondents on the other hand submitted that in view of the
accepted position that the defendants were in possession for more than 12 years
and that actual physical possession was with them the High Court cannot be
concept of adverse possession contemplates a hostile possession i.e. a
possession which is expressly or impliedly in denial of the title of the true
owner. Possession to be adverse must be possession by a person who does not
acknowledge the other's rights but denies them. The principle of law is firmly
established that 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 denial of his title to the property claimed. For deciding
whether the alleged acts of a person constituted adverse possession, the animus
of the person doing those acts is the most crucial factor. Adverse possession
is commenced in wrong and is aimed against right. A person is said to hold the
property adversely to the real owner when that person in denial of the owner's
right excluded him from the enjoyment of his property.
to be adverse must be possession by a person who does not acknowledge the
other's rights but denies them.
a matter of fundamental principle of law that where possession can be referred
to a lawful title, it will not be considered to be adverse. It is on the basis
of this principle that it has been laid down that since the possession of one
co- owner can be referred to his status as co-owner, it cannot be considered
adverse to other co-owner. (See Vidya Devi v. Prem Prakash and Ors. (1995 (4)
possession is that form of possession or occupancy of land which is
inconsistent with the title of the rightful owner and tends to extinguish that
is not held to he adverse if it can be referred to a lawful title. The person
setting up adverse possession may have been holding under the rightful Owner's
title e.g. trustees, guardians, bailiffs or agents. Such persons cannot set up
possession" means a hostile possession which is expressly or impliedly in
denial of title of the true owner.
Article 65 of the Limitation Act, burden is on the defendants to prove
affirmatively. A person who bases his title on adverse possession must show by
clear and unequivocal evidence i.e. possession was hostile to the real owner
and amounted to a denial of his title to the property claimed. In deciding
whether the acts, alleged by a person, constitute adverse possession, regard
must be had to the animus of the person doing those acts which must be
ascertained from the facts and circumstances of each case. The person who bases
his title on adverse possession, therefore, must show by clear and unequivocal
evidence i.e. possession was hostile to the real owner and amounted to a denial
of his title to the property claimed. (See Annasaheb v. B.B. Patil (AIR 1995 SC
895 at 902).
possession could be referred to a lawful title, it will not be considered to be
adverse. The reason being that a person whose possession can be referred to a
lawful title will not be permitted to show that his possession was hostile to
another's title. One who holds possession on behalf of another does not by mere
denial of that other's title make his possession adverse so as to give himself
the benefit of the statute of limitation. Therefore, a person who enters into
possession having a lawful title, cannot divest another of that title by
pretending that he had no title at all.
occupation of reality is inconsistent with the right of the true owner. Where a
person possesses property in a manner in which he is not entitled to possess
it, and without anything to show that he possesses it otherwise than an owner
(that is, with the intention of excluding all persons from it, including the
rightful owner), he is in adverse possession of it.
if A is in possession of a field of B's, he is in adverse possession of it
unless there is something to show that his possession is consistent with a
recognition of B's title. (See Ward v. Carttar (1866) LR 1 Eq.29). Adverse
possession is of two kinds, according as it was adverse from the beginning, or
has become so subsequently. Thus, if a mere trespasser takes possession of A's
property, and retains it against him, his possession is adverse ab initio. But
if A grants a lease of land to B, or B obtains possession of the land as A's
bailiff, or guardian, or trustee, his possession can only become adverse by
some change in his position. Adverse possession not only entitled the adverse
possessor, like every other possessor, to be protected in his possession against
all who cannot show a better title, but also, if the adverse possessor remains
in possession for a certain period of time produces the effect either of
barring the right of the true owner, and thus converting the possessor into the
owner, or of depriving the true owner of his right of action to recover his
property and this although the true owner is ignorant of the adverse possessor
being in occupation. (See Rains v. Buxion (1880 (14) Ch D 537).
possession is that form of possession or occupancy of land which is
inconsistent with the title of any person to whom the land rightfully belongs
and tends to extinguish that person's title, which provides that no person
shall make an entry or distress, or bring an action to recover any land or
rent, but within twelve years next after the time when the right first accrued,
and does away with the doctrine of adverse possession, except in the cases
provided for by Section 15. Possession is not held to be adverse if it can be
referred to a lawful title.
to Pollock, "In common speech a man is said to be in possession of
anything of which he has the apparent control or from the use of which he has
the apparent powers of excluding others".
the basic principle of law of adverse possession that
it is the
temporary and abnormal separation of the property from the title of it when a
man holds property innocently against all the world but wrongfully against the
it is possession
inconsistent with the title of the true owner.
1953 Edition, Volume-I it has been stated as follows:
the determination of the statutory period limited to any person for making an
entry or bringing an action, the right or title of such person to the land,
rent or advowson, for the recovery of which such entry or action might have
been made or brought within such period is extinguished and such title cannot
afterwards be reviewed either by re-entry or by subsequent acknowledgement. The
operation of the statute is merely negative, it extinguished the right and
title of the dispossessed owner and leaves the occupant with a title gained by
the fact of possession and resting on the infirmity of the right of the others
to eject him" It is well recognized proposition in law that mere
possession however long does not necessarily means 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.
High Court has erred in holding that even if the defendants claim adverse
possession, they do not have to prove who is the true owner and even if they
had believed that the Government was the true owner and not the plaintiffs, the
same was inconsequential. Obviously, the requirements of proving adverse
possession have not been established. If the defendants are not sure who is the
true owner the question of their being in hostile possession and the question of
denying title of the true owner do not arise. Above being the position the High
Court's judgment is clearly unsustainable. Therefore, the appeal which relates
to OS 168/85 is allowed by setting aside the impugned judgment of the High
Court to that extent.
the High Court has proceeded on the basis that the plaintiff in OS.286/88 had
established his plea of possession.
factual position does not appear to have been analysed by the High Court in the
proper perspective. When the High Court was upsetting the findings recorded by
the court below i.e. first appellate Court it would have been proper for the
High Court to analyse the factual position in detail which has not been done.
No reason has been indicated to show as to why it was differing from the
factual findings recorded by it. The first appellate Court had categorically
found that the appellants in the present appeals had proved possession three
years prior to filing of the suit. This finding has not been upset. Therefore,
the High Court was not justified in setting aside the first appellate Court's
order. The appeal before this Court relating to O.S. 286 of 1988 also deserves
to be allowed. Therefore, both the appeals are allowed but without any order as
appeals are disposed of accordingly.