P.T.
Munichikkanna Reddy & Ors Vs. Revamma and Ors [2007] Insc 443 (24 April 2007)
S.B. Sinha & Markandey Katju
S.B. SINHA, J :
BACKGROUND FACTS
One Thippaiah was the owner of 5 acre 23 guntas of land having been recorded
in Survey No. 153/1 of Chikkabanavara Village. Nanjapa, adoptive father of
Respondent No. 1 purchased a portion thereof measuring 1 acre 21 guntas on
11.09.1933. By reason of two different sale deeds, dated 11.04.1934 and
5.07.1936, the appellants herein purchased 2 acre 15 guntas and 3 acre 8 guntas
of land respectively, out of the said plot. Despite the fact that Nanjapa
purchased a portion of the said plot, the appellants allegedly took over
possession of the entire 5 acre 23 guntas of land after the aforementioned
purchases. However, when allegedly their possession was sought to be disturbed
by the respondent in the year 1988, they filed a suit in the court of
Additional City Civil Judge, Bangalore which was marked as O.S. No. 287 of
1989. In the said suit, they clamed title on the basis of adverse possession
stating:
"The plaintiffs submit that in any event the plaintiffs have perfected
their title by adverse possession as the plaintiffs have been in open,
continuous uninterrupted and hostile possession of the plaint schedule land, adversely
to the interest of any other person including the defendant for the past over
fifty years exercising absolute rights of ownership in respect of the plaint
schedule land"
Defendants Respondents in their written statement denied and disputed the
aforementioned assertion of the plaintiffs and pleaded their own right, title
and interest as also possession in or over the said 1 acre 21 guntas of land.
The learned Trial Judge decreed the suit inter alia holding that the plaintiffs
appellants have acquired title by adverse possession as they have been in
possession of the lands in question for a period of more than 50 years. On an
appeal having been preferred there against by the respondents before the High
Court, the said judgment of the Trial Court was reversed holding:
(i) "The important averments of adverse possession are two fold. One is
to recognize the title of the person against whom adverse possession is
claimed. Another is to enjoy the property adverse to the title holder's
interest after making him known that such enjoyment is against his own
interest. These two averments are basically absent in this case both in the
pleadings as well as in the evidence"
(ii) "The finding of the Court below that the possession of the
plaintiffs' become adverse to the defendants between 1934-1936 is again an
error apparent on the face of the record. As it is now clarified before me by
the learned counsel for the appellants that the plaintiffs' claim in respect of
the other land of the defendants is based on the subsequent sale deed dated
5.7.1936.
It is settled law that mere possession even if it is true for any number of
years will not cloth the person in enjoyment with the title by adverse
possession. As indicated supra, the important ingredients of adverse possession
should have been satisfied."
SUBMISSIONS Mr. P. Krishnamoorthy, learned senior counsel appearing on
behalf of the appellants, submitted that the High Court committed a manifest
error in arriving at the aforementioned conclusion as it failed to take into
consideration the principle that acknowledgement of the owner's title was not
sine qua non for claiming title by prescription. Reliance in this behalf has
been placed on Secy. of State v. Debendra Lal Khan [AIR 1934 PC 23] and State
of West Bengal v. The Dalhousie Institute Society [AIR 1970 SC 1798].
The learned counsel appearing on behalf of the respondents, on the other
hand, supported the impugned judgment.
CHARACTERIZING ADVERSE POSSESSION
Adverse possession in one sense is based on the theory or presumption that
the owner has abandoned the property to the adverse possessoror 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);
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).] 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 possession claim.
To understand the true nature of adverse possession, Fairweather v St
Marylebone Property Co [1962] 2 WLR 1020, [1962] 2 All ER 288 can be considered
where House of Lords referring to Taylor v. Twinberrow [1930] 2 K.B. 16, termed
adverse possession as a negative and consequential right effected only because
somebody else's positive right to access the court is barred by operation of
law:
"In my opinion this principle has been settled law since the date of
that decision. It formed the basis of the later decision of the Divisional
Count in Taylor v. Twinberrow [1930] 2 K.B. 16, in which it was most clearly
explained by Scrutton, L.J.
that it was a misunderstanding of the legal effect of 12 years adverse
possession under the Limitation Acts to treat it as if it gave a title whereas
its effect is " merely negative " and, where the possession had been
against a tenant, its only operation was to bar his right to claim against the
man in possession (see loc. cit. p. 23).
I think that this statement needs only one qualification: a squatter does in
the end get a title by his possession and the indirect operation of the Act and
he can convey a fee simple.
If this principle is applied, as it must be, to the Appellant's situation,
it appears that the adverse possession completed in 1932 against the lessee of
No. 315 did not transfer to him either the lessee's' term or his rights against
or has obligations to the landlord who held the reversion. The appellant claims
to be entitled to keep the landlord at bay until the expiration of the term by
effluxion of time in 1992: but, if he is, it cannot be because he is the
transferee or holder of the term which was granted to the lessee. He is in
possession by his own right, so far as it is a right: and it is a right so far
as the statutes of limitation which govern the matter prescribe both when the
rights to dispossess him are to be treated as accruing and when, having
accrued, they are thereafter to be treated as barred. In other words, a
squatter has as much protection as but no more protection than the statutes
allow: but he has not the title or estate of the owner or owners whom he has
dispossessed nor has he in any relevant sense an estate "commensurate
with" the estate of the dispossessed. All that this misleading phrase can
mean is that, since his possession only defeats the rights of those to whom it
has been adverse, there may be rights not prescribed against, such, for
instance, as equitable easements, which axe no less enforceable against him in
respect of the land than they would have been against the owners he has
dispossessed."
Also see Privy Council's decision in Chung Ping Kwan and Others v.
Lam Island Development Company Limited (Hong Kong) [(1997) AC 38] in this
regard.
Therefore, to assess a claim of adverse possession, two-pronged enquiry is
required:
1. Application of limitation provision thereby jurisprudentially
"willful neglect" element on part of the owner established.
Successful application in this regard distances the title of the land from
the paper-owner.
2. Specific Positive intention to dispossess on the part of the adverse
possessor effectively shifts the title already distanced from the paper owner,
to the adverse possessor. Right thereby accrues in favour of adverse possessor
as intent to dispossess is an express statement of urgency and intention in the
upkeep of the property.
It is interesting to see the development of adverse possession law in the backdrop
of the status of Right to Property in the 21st Century. The aspect of stronger
Property Rights Regime in general, coupled with efficient legal regimes
furthering the Rule of Law argument, has redefined the thresholds in adverse
possession law not just in India but also by the Strasbourg Court. Growth of
Human Rights jurisprudence in recent times has also palpably affected the
developments in this regard. .
NEW CONSIDERATION IN ADVERSE POSSESSION LAW In that context it is relevant
to refer to JA Pye (Oxford) Ltd v. United Kingdom [2005] 49 ERG 90, [2005] ECHR
921 wherein the European Court of Human Rights while referring to the Court of
Appeal judgment ([2001]EWCA Civ 117, [2001]Ch 804) made the following
reference:
"Lord Justice Keene took as his starting point that limitation periods
were in principle not incompatible with the Convention and that the process
whereby a person would be barred from enforcing rights by the passage of time
was clearly acknowledged by the Convention (Convention for the Protection of
Human Rights and Fundamental Freedoms). This position obtained, in his view,
even though limitation periods both limited the right of access to the courts
and in some circumstances had the effect of depriving persons of property
rights, whether real or personal, or of damages: there was thus nothing
inherently incompatible as between the 1980 Act and Article 1 of the
Protocol."
This brings us to the issue of mental element in adverse possession
cases-intention.
1. Positive Intention The aspect of positive intention is weakened in this
case by the sale deeds dated 11.04.1934 and 5.07.1936. Intention is a mental
element which is proved and disproved through positive acts. Existence of some
events can go a long way to weaken the presumption of intention to dispossess
which might have painstakingly grown out of long possession which otherwise
would have sufficed in a standard adverse possession case.. The fact of
possession is important in more than one ways: firstly, due compliance on this
count attracts limitation act and it also assists the court to unearth as the
intention to dispossess.
At this juncture, it would be in the fitness of circumstances to discuss
intention to dispossess vis-`-vis intention to possess. This distinction can be
marked very distinctively in the present circumstances.
Importantly, intention to possess can not be substituted for intention to
dispossess which is essential to prove adverse possession. The factum of
possession in the instant case only goes on to objectively indicate intention
to possess the land. As also has been noted by the High Court, if the appellant
has purchased the land without the knowledge of earlier sale, then in that case
the intention element is not of the variety and degree which is required for
adverse possession to materialize.
The High Court observed:
"It is seen from the pleadings as well in evidence that the plaintiff
came to know about the right of the defendants', only when disturbances were
sought to be made to his possession."
In similar circumstances, in the case of Thakur Kishan Singh (dead) v.
Arvind Kumar [(1994) 6 SCC 591] this court held:
"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 brick-kiln. 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 licencee 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 permissible possession into adverse possession.
Apart from it, the Appellate Court has gone into detail and after considering
the evidence on record found it as a fact that the possession of the appellant
was not adverse."
The present case is one of the few ones where even an unusually long
undisturbed possession does not go on to prove the intention of the adverse
possessor. This is a rare circumstance, which Clarke LJ in Lambeth London
Borough Council v Blackburn (2001) 82 P & CR 494, 504 refers to:
"I would not for my part think it appropriate to strain to hold that a
trespasser who had established factual possession of the property for the
necessary 12 years did not have the animus possidendi identified in the cases.
I express that view for two reasons. The first is that the requirement that
there be a sufficient manifestation of the intention provides protection for
landowners and the second is that once it is held that the trespasser has
factual possession it will very often be the case that he can establish the
manifested intention. Indeed it is difficult to find a case in which there has
been a clear finding of factual possession in which the claim to adverse
possession has failed for lack of intention."
On intention, The Powell v. Macfarlane (1977) 38 P & CR (Property,
Planning & Compensation Reports) 452 472 is quite illustrative and
categorical, holding in the following terms:
"If the law is to attribute possession of land to a person who can
establish no paper title to possession, he must be shown to have both factual
possession and the requisite intention to possess ('animus possidendi')."
.
If his acts are open to more than one interpretation and he has not made it
perfectly plain to the world at large by his actions or words that he has
intended to exclude the owner as best he can, the courts will treat him as not
having had the requisite animus possidendi and consequently as not having
dispossessed the owner.
In my judgment it is consistent with principle as well as authority that a
person who originally entered another's land as a trespasser, but later seeks
to show that he has dispossessed the owner, should be required to adduce
compelling evidence that he had the requisite animus possidendi in any case
where his use of the land was equivocal, in the sense that it did not
necessarily, by itself, betoken an intention on his part to claim the land as
his own and exclude the true owner.
What is really meant, in my judgment, is that the animus possidendi
involves the intention, in one's own name and on one's own behalf, to exclude
the world at large, including the owner with the paper title if he be not
himself the possessor, so far as is reasonably practicable and so far as the
processes of the law will allow."
Thus, there must be intention to dispossess. And it needs to be open and
hostile enough to bring the same to the knowledge and plaintiff has an
opportunity to object. After all adverse possession right is not a substantive
right but a result of the waiving (willful) or omission (negligent or
otherwise) of right to defend or care for the integrity of property on the part
of the paper owner of the land. Adverse possession statutes, like other
statutes of limitation, rest on a public policy that do not promote litigation
and aims at the repose of conditions that the parties have suffered to remain
unquestioned long enough to indicate their acquiescence.
While dealing with the aspect of intention in the Adverse possession law, it
is important to understand its nuances from varied angles.
Intention implies knowledge on the part of adverse possessor. The case of
Saroop Singh v. Banto and Others [(2005) 8 SCC 330] in that context held:
"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 defendants possession becomes adverse. (See
Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak)
30. Animus possidendi is one of the ingredients of adverse possession.
Unless the person possessing the land has a requisite animus the period for
prescription does not commence. As in the instant case, the appellant
categorically states that his possession is not adverse as that of true owner,
the logical corollary is that he did not have the requisite animus. (See Mohd.
Mohd. Ali v.
Jagadish Kalita, SCC para 21.)"
A peaceful, open and continuous possession as engraved in the maxim nec vi,
nec clam, nec precario has been noticed by this Court in Karnataka Board of
Wakf v. Government of India and Others [(2004) 10 SCC 779] in the following
terms:
"Physical fact of exclusive possession and the animus possidendi to
hold as owner in exclusion to the actual owner are the most important factors
that are to be accounted in cases of this nature.
Plea of adverse possession is not a pure question of law but a blended one
of fact and law. Therefore, a person who claims adverse possession should show:
( a) on what date he came into possession, (b) what was the nature of his
possession, (c) whether the factum of possession was known to the other party,
(d) how long his possession has continued, and ( e) his possession was open and
undisturbed. A person pleading adverse possession has no equities in his
favour. 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"
It is important to appreciate the question of intention as it would have
appeared to the paper-owner. The issue is that intention of the adverse user
gets communicated to the paper owner of the property. This is where the law
gives importance to hostility and openness as pertinent qualities of manner of
possession. It follows that the possession of the adverse possessor must be
hostile enough to give rise to a reasonable notice and opportunity to the paper
owner.
In Narne Rama Murthy v. Ravula Somasundaram and Others [(2005) 6 SCC 614],
this Court held:
"However, in cases where the question of limitation is a mixed question
of fact and law and the suit does not appear to be barred by limitation on the
face of it, then the facts necessary to prove limitation must be pleaded, an
issue raised and then proved. In this case the question of limitation is
intricately linked with the question whether the agreement to sell was entered
into on behalf of all and whether possession was on behalf of all. It is also
linked with the plea of adverse possession.
Once on facts it has been found that the purchase was on behalf of all and
that the possession was on behalf of all, then, in the absence of any open,
hostile and overt act, there can be no adverse possession and the suit would
also not be barred by limitation. The only hostile act which could be shown was
the advertisement issued in 1989. The suit filed almost immediately
thereafter."
The test is, as has been held in the case of R. v. Oxfordshire County
Council and Others, Ex Parte Sunningwell Parish Council [1999] 3 ALL ER 385;
[1999] 3 WLR 160:
Bright v. Walker (1834) 1 Cr. M. & R. 211, 219, "openly and in the
manner that a person rightfully entitled would have used it. . ." The
presumption arises, as Fry J. said of prescription generally in Dalton v. Angus
(1881) 6 App.Cas. 740, 773, from acquiescence.
The case concerned interpretation of section 22(1) of the Commons
Registration Act 1965. Section 22(1) defined "town or village green"
as including " land on which the inhabitants of any locality have
indulged in [lawful] sports and pastimes as of right for not less than 20
years."
It was observed that the inhabitants' use of the land for sports and
pastimes did not constitute the use "as of right". The belief that
they had the right to do so was found to be lacking. The House held that they
did not have to have a personal belief in their right to use the land. The
court observed:
"the words 'as of right' import the absence of any of the three
characteristics of compulsion, secrecy or licence 'nec vi, nec clam, nec
precario', phraseology borrowed from the law of easements."
Later in the case of Beresford, R (on the application of) v. City of
Sunderland [2003] 3 WLR 1306, [2004] 1 All ER 160 same test was referred to.
Thus the test of nec vi, nec clam, nec precario i.e., "not by force,
nor stealth, nor the license of the owner" has been an established notion
in law relating to the whole range of similarly situated concepts such as
easement, prescription, public dedication, limitation and adverse possession.
In Karnataka Wakf Board (Supra), the law was stated, thus:
"In the eye of 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 true owner. It is a well- settled principle
that a party claiming adverse possession must prove that his possession is 'nec
vi, nec clam, nec precario', that is, peaceful, open and continuous. The
possession must be adequate in continuity, in publicity and in extent to show
that their possession is adverse to the true owner. It must start with a
wrongful disposition of the rightful owner and be actual, visible, exclusive,
hostile and continued over the statutory period. (See : S M Karim v. Bibi
Sakinal AIR 1964 SC 1254, Parsinni v. Sukhi ( 1993 ) 4 SCC 375 and D N
Venkatarayappa v. State of Karnataka (1997) 7 SCC 567.) Physical fact of
exclusive possession and the animus possidendi to hold as owner in exclusion to
the actual owner are the most important factors that are to be accounted in
cases of this nature. Plea of adverse possession is not a pure question of law
but a blended one of fact and law. Therefore, a person who claims adverse
possession should show (a) on what date he came into possession, (b) what was
the nature of his possession, (c) whether the factum of possession was known to
the other party, (d) how long his possession has continued, and (e) his
possession was open and undisturbed. A person pleading adverse possession has
no equities in his favour. Since he is trying to defeat the rights of true
owner, it is for him to clearly plead and establish all facts necessary to
establish his adverse possession."
2. Inquiry into the particulars of Adverse Possession Inquiry into the
starting point of adverse possession i.e. dates as to when the paper owner got
dispossessed is an important aspect to be considered. In the instant case the
starting point of adverse possession and Other facts such as the manner in
which the possession operationalized, nature of possession: whether open,
continuous, uninterrupted or hostile possession - have not been disclosed. An
observation has been made in this regard in S.M. Karim v. Mst. Bibi Sakina [AIR
1964 SC 1254]:
"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."
Also mention as to the real owner of the property must be specifically made
in an adverse possession claim.
In Karnataka Wakf Board (Supra), it is stated:
"Plaintiff, filing a title suit should be very clear about the origin
of title over the property. He must specifically plead it. In P Periasami v. P
Periathambi ( 1995 ) 6 SCC 523 this Court ruled that - "Whenever the plea
of adverse possession is projected, inherent in the plea is that someone else
was the owner of the property." The pleas on title and adverse possession
are mutually inconsistent and the latter does not begin to operate until the
former is renounced. Dealing with Mohan Lal v.
Mirza Abdul Gaffar ( 1996 ) 1 SCC 639 that is similar to the case in hand,
this Court held:
"As regards the first plea, it is inconsistent with the second plea.
Having come into possession under the agreement, he must disclaim his right
there under and plead and prove assertion of his independent hostile adverse
possession to the knowledge of the transferor or his successor in title or
interest and that the latter had acquiesced to his illegal possession during
the entire period of 12 years, i.e., up to completing the period his title by
prescription nec vi, nec clam, nec precario. Since the appellant's claim is
founded on Section 53-A, it goes without saying that he admits by implication
that he came into possession of land lawfully under the agreement and continued
to remain in possession till date of the suit. Thereby the plea of adverse
possession is not available to the appellant.""
3. New Paradigm to Limitation Act The law in this behalf has undergone a
change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the
burden of proof was on the plaintiff to show within 12 years from the date of
institution of the suit that he had title and possession of the land, whereas
in terms of Articles 64 and 65 of the Limitation Act,
1963, the legal position has underwent complete change insofar as the onus
is concerned: once a party proves its title, the onus of proof would be on the
other party to prove claims of title by adverse possession. The ingredients of
adverse possession have succinctly been stated by this Court in S.M. Karim v.
Mst. Bibi Sakina [AIR 1964 SC 1254] in the following terms:
"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"
[See also M. Durai v. Madhu and Others 2007 (2) SCALE 309] The
aforementioned principle has been reiterated by this Court in Saroop Singh v.
Banto and Others [(2005) 8 SCC 330] stating:
"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 defendants possession becomes adverse. (See
Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak)
30. Animus possidendi is one of the ingredients of adverse possession. Unless
the person possessing the land has a requisite animus the period for
prescription does not commence. As in the instant case, the appellant
categorically states that his possession is not adverse as that of true owner,
the logical corollary is that he did not have the requisite animus. (See Mohd.
Mohd. Ali v.
Jagadish Kalita, SCC para 21.)"
In Mohammadbhai Kasambhai Sheikh and Others v. Abdulla Kasambhai Sheikh
[(2004) 13 SCC 385], this Court held:
"But as has been held in Mahomedally Tyebally v. Safiabai the heirs of
Mohammedans (which the parties before us are) succeed to the estate in specific
shares as tenants-in-common and a suit by an heir for his/her share was
governed, as regards immovable property, by Article 144 of the Limitation Act,
1908. Article 144 of the Limitation Act, 1908 has been materially re-enacted as
Article 65 of the Limitation
Act, 1963 and provides that the suit for possession of immovable property
or any interest therein based on title must be filed within a period of 12
years from the date when the possession of the defendant becomes adverse to the
plaintiff. Therefore, unless the defendant raises the defence of adverse
possession to a claim for a share by an heir to ancestral property, he cannot
also raise an issue relating to the limitation of the plaintiffs claim"
The question has been considered at some length recently in T.
Anjanappa and Others v. Somalingappa and Another [(2006) 7 SCC 570], wherein
it was opined :
"The 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"
[See also Des Raj and Ors. v. Bhagat Ram (Dead) By LRs. and Ors., 2007 (3)
SCALE 371; Govindammal v. R. Perumal Chettiar & Ors., JT 2006 (10) SC 121 :
(2006) 11 SCC 600] CONTENTIONS OF PARTIES The decision of the Judicial
Committee in Debendra Lal Khan (supra), whereupon reliance has been placed by
Mr. Krishnamoorthy, does not militate against the aforementioned propositions
of law. The question which arose for consideration therein was as to whether
the plaintiff had acquired right or title to the fisheries by adverse
possession in the portion of river Cossye. In the aforementioned situation, it
was held that the Limitation
Act is indulgent to the Crown in one respect only, namely, in requiring a
much longer period of adverse possession than in the case of a subject;
otherwise there is no discrimination between the Crown and the subject as regards
the requisites of adverse possession. The said decision is not of much
assistance in this case.
In The Dalhousie Institute Society (supra), this Court found as of fact that
the respondents were in open, continuous and uninterrupted possession and enjoyment
of site for over 60 years. It was in that situation, the title of the
defendant, in that behalf, was accepted.
RIGHT TO PROPERTY AS HUMAN RIGHT There is another aspect of the matter,
which cannot be lost sight of.
The right of property is now considered to be not only a constitutional or
statutory right but also a human right.
Declaration of the Rights of Man and of the Citizen, 1789 enunciates right
to property under Article 17 :
"since the right to property is inviolable and sacred, no-one may be
deprived thereof, unless public necessity, legally ascertained, obviously
requires it and just and prior indemnity has been paid".
Moreover, Universal Declaration of Human Rights, 1948 under section 17(i)
and 17(ii) also recognizes right to property :
"17 (i) Everyone has the right to own property alone as well as in
association with others.
(ii) No-one shall be arbitrarily deprived of his property."
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 judgement of
Beaulane Properties Ltd. v. Palmer [2005 (3) WLR 554 :
2005 EWHC 817 (Ch.)] and JA Pye (Oxford) Ltd v. United Kingdom [2005] ECHR
921 [2005] 49 ERG 90, [2005] ECHR 921], 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 has widened so much that now
property dispute issues are also being raised within the contours of human
rights.
With the expanding jurisprudence of the European Court of Human Rights, the
Court has taken an unkind view to the concept of adverse possession in the
recent judgment of J.A. Pye (Oxford) Ltd v. the United Kingdom [2005] ECHR 921,
which concerned the loss of ownership of land by virtue of adverse possession.
In the instant 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.
In essence, from September 1984 onwards until 1999 the Grahams continued to
use the whole of the disputed land for farming without the permission of the
applicants.
In 1997, Mr Graham moved the Local Land Registry against the applicant on
the ground that he had obtained title by adverse possession. The applicant
companies responded to the motion and importantly also issued further
proceedings seeking possession of the disputed land.
The Grahams challenged the applicant companies' claims under the 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. They also relied on the Land Registration Act 1925,
which applied at the relevant time and which provided that, after the expiry of
the 12-year period, the registered proprietor was deemed to hold the land in
trust for the squatter.
It is important to quote here the judgment pronounced in favour of the
Grahams ([2000]Ch 676). The court held in favour of the Grahams but went on to
observe the irony in law of adverse possession. According to the court, law
which provides to oust an owner on the basis of inaction of 12 years is
"illogical and disproportionate". The effect of such law would
"seem draconian to the owner" and "a windfall for the
squatter". The fact that just because "the owner had taken no step to
evict a squatter for 12 years, the owner should lose 25 hectares of land to the
squatter with no compensation whatsoever" would be disproportionate.
The applicant companies appealed and the Court of Appeal reversed the High
Court decision. The Grahams then appealed to the House of Lords, which, allowed
their appeal and restored the order of the High Court. In J A Pye (Oxford) Ltd
& Ors v Graham & Anor [2002] 3 All ER 865 House of Lords observed that
the Grahams had possession of the land in the ordinary sense of the word, and
therefore the applicant companies had been dispossessed of it within the meaning
of the 1980 Act. There was no inconsistency between a squatter being willing to
pay the paper owner if asked and his being in possession in the meantime. It
will be pertinent to note in this regard Lord Bingham (agreeing with Lord
Browne-Wilkinson) in the course of his judgment:
"[The Grahams] sought rights to graze or cut grass on the land after
the summer of 1984, and were quite prepared to pay. When Pye failed to respond
they did what any other farmer in their position would have done: they
continued to farm the land. They were not at fault. But the result of Pye's
inaction was that they enjoyed the full use of the land without payment for 12
years. As if that were not gain enough, they are then rewarded by obtaining
title to this considerable area of valuable land without any obligation to
compensate the former owner in any way at all. In the case of unregistered
land, and in the days before registration became the norm, such a result could
no doubt be justified as avoiding protracted uncertainty where the title to
land lay. But where land is registered it is difficult to see any justification
for a legal rule which compels such an apparently unjust result, and even
harder to see why the party gaining title should not be required to pay some
compensation at least to the party losing it. It is reassuring to learn that
the Land Registration Act 2002 has addressed the risk that a registered owner
may lose his title through inadvertence. But the main provisions of that Act
have not yet been brought into effect, and even if they had it would not assist
Pye, whose title had been lost before the passing of the Act. While I am
satisfied that the appeal must be allowed for the reasons given by my noble and
learned friend, this is a conclusion which I (like the judge [Neuberger J]...)
'arrive at with no enthusiasm'."
Thereafter 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
No. 1 to Convention for the Protection of Human Rights and Fundamental Freedoms
("the Convention").
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 No. 1 to Convention for the Protection
of Human Rights and Fundamental Freedoms ("the Convention"), which
reads as under:
"Every 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.
The preceding 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."
The European Council of Human Rights importantly laid down three pronged
test to judge the interference of government with the right of "peaceful
enjoyment of property". While referring to Beyeler v. Italy [GC], no.
33202/96, '' 108-14, ECHR 2000-I, it was held that the "interference"
should comply with the principle of lawfulness pursue a legitimate aim
(public interest) by means reasonably proportionate to the aim sought to be
realized.
In fine the court observed:
"The question nevertheless remains whether, even having regard to the
lack of care and 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.
In these 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 other.
There has therefore been a violation of Article 1 of Protocol No. 1."
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.
Therefore it will have to be kept in mind the Courts around the world are
taking an unkind view toward statutes of limitation overriding property rights.
THE PRESENT CASE It is to be borne in mind that the respondent had already
purchased 1 acre 21 guntas out of the 5 acres 25 guntas under a duly registered
deed dated 1.9.1933. Appellant bought the entire chunk of 5 acres 23 guntas
subsequent to the respondent's transaction. The validity of such sale is not
the question in the instant case but the transaction relating to 1 acre 23
Guntas remains an important surrounding circumstance to assess the nature of
appellant's possession. The question is whether it is a case of mistaken
possession ignoramus of the previous sale or adverse possession having the
mental element in the requisite degree to dispossess. Also much depends on the
answer to the query regarding the starting point of adverse possession:
when can the possession be considered to have become adverse? In the facts
and circumstances of this case, the possession of appellant was effected
through the sale deeds, dated 11.04.1934 and 5.07.1936. Therefore, the alleged
fact of adverse possession bears a pronounced backdrop of 1933 sale deed
passing 1 acre 21 Guntas to the respondent. .
Are we to say that it is a sale with doubtful antecedents (1 acre 23 Guntas)
sought to be perfected or completed through adverse possession? But that aspect
of the matter is not under consideration herein. As has already been mentioned,
adverse possession is a right which comes into play not just because someone
loses his right to reclaim the property out of continuous and willful neglect
but also on account of possessor's positive intent to dispossess. Therefore it
is important to take into account before stripping somebody of his lawful
title, whether there is an adverse possessor worthy and exhibiting more urgent
and genuine desire to dispossess and step into the shoes of the paper-owner of
the property. This test forms the basis of decision in the instant case.
The argument for a more intrusive inquiry for adverse possession must not be
taken to be against the law of limitations. Limitation statutes as statutes of
repose have utility and convenience as their purpose.
Nevertheless, there has been change on this front as well which have been
noticed by us heretobefore.
For the reasons aforementioned, there is no merit in this appeal which is
dismissed accordingly with costs. Counsel's fee assessed at Rs. 25,000/-.
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