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Limitation Act, 1963-Articles 64 & 65 of the Schedule-Indian Limitation Act, 1908-Articles 142 & 143 of the Schedule-Purchase of suit property by plaintiffs by registered sale deeds without knowledge of earlier purchase of the same by defendants-Suit for possession claiming title by adverse possession was decreed by trial court-High Court reversing the judgment of the trial court holding that the plaintiffs failed to prove their title by adverse possession-Correctness of-Held, on facts and evidence, positive intention to dispossess the suit property essential to claim adverse possession was not proved by plaintiffs and hence, suit for possession dismissed. Appellant-plaintiffs purchased suit property by two registered sale deeds subsequent to the purchase of the same by respondents-defendants. A suit for possession filed by the appellants claiming title on the basis of adverse possession was decreed by the trial court. The High Court, in appeal, reversed the judgment of the trial court holding that the plaintiffs failed to prove their title by adverse possession. In appeal to this Court, the appellants contended that the acknowledgment of the owner’s title was not sine qua non for claiming title by adverse possession. =Dismissing the appeal, the Court HELD: 1.1. Adverse possession 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 hostiles. [Para 5] [496-D, E] 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) and City of Rock Springs v. Sturm, 39 Wyo. 494, 273 P. 908, 97 A.L.R. 1 (1929), referred to. 1.2. Efficacy of adverse possession law in most jurisdictions depend on strong limitation statutes by operation of which, the 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. Simple application of Limitation shall not be enough by itself for the success of an adverse possession claim. [Para 6] [496-F, G; 497-A, B] American Jurisprudence Vol. 3, referred to. Fairweather v. St. Marylebone Property Co., (1962) 2 WLR 1020; [1962] 2 All ER 299; Taylor v. Twinberries, [1930] 2 KB 17 and Chung Ping Kwan & Ors. v. Lam Island Development Company Ltd. (Hong Kong), (1997) AC 38, referred to. 1.3. To assess a claim of adverse possession, two-pronged enquiry is required. Firstly, 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. Secondly, 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. [Para 9] [498-D, E, F] 1.4 The aspect of positive intention is weakened by the two sale deeds. 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 way. Firstly, due compliance on this count attracts limitation act and secondly, it also assists the court to unearth as the intention to dispossess. [Para 13] [499-D, E] JA Pye (Oxford) Ltd. v. United Kingdom, [2005] 49 ERG 90; [2005] ECHR 921, referred to. 1.5. 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. 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. [Para 15] [499-G; 500-A] Thakur Kishan Singh (dead) v. Arvind Kumar, [1994] 6 SCC 591, referred to. Lambeth London Borough Council v. Blackburn, [2001] 82 P & CR 494 and The Powell v. Macfarlane, [1977] 39 P & CR 452, referred to. 1.6. There must be intention to dispossess. 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 does not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence. Intention implies knowledge on the part of the adverse possessor. A peaceful, open and continuous possession is engraved in the maxim nec vi, nec clam, nec precario i.e. not by force, nor stealth, nor the licence of the owner. [Paras 20, 22 and 23] [501-F, G; 502-A, B-E; 504-C] Saroop Singh v. Banto & Ors., [2005] 8 SCC 330; Karnataka Board of Wakf v. Government of India & Ors., [2004] 10 SCC 779; Narne Rama Murthy v. Ravula Somasundaram & Ors., [2005] 6 SCC 614; S. M. Karim v. Mst. Bibi Sakini, AIR (1964) SC 1254; P. Periasami v. Periathambi, [1995] 6 SCC 253; Mohan Lal v. Mirza Abdul Gaffar, [1996] 1 SCC 639; M. Durai v. Madhu & Ors., (2007) 2 SCALE 309; Saroop Singh v. Banto & Ors., [2005] 8 SCC 330; Mohammadbhai Kasambhai Sheikh & Ors. v. Abdulla Kasambhai Sheikh, [2004] 13 SCC 385; T. Anjanappa & Ors. v. Somalingappa & Anr., [2006] 7 SCC 570; Des Raj & Ors. v. Bhagat Ram (Dead) by Lrs. & Ors., (2007) 3 SCALE 371 and Govindammal v. R. Perumal Chettiar & Ors., JT [2006] 10 SC 121 : [2006] 11 SCC 600, referred to. Secy. of State v. Debendra Lal Khan, AIR (1934) PC 23 and State of West Bengal v. The Dalhousie Institute Society, AIR (1970) SC 1978, distinguished. R. v. Oxfordshire County Council & Ors., Ex Parte Sunningwell Parish Council, [1999] 3 ALL ER 385; [1999] 3 WLR 160; Beresford, R (on the application of) v. City of Sunderland, (2003) 3 WLR 1306; [2004] 1 All ER 160; Beaulane Properties Ltd. v. Palmer, (2005) 3 WLR 554 : (2005) EWHC 817 (Ch); JA Pye (Oxford) Ltd. v. United Kingdom, (2005) EHCR 921 (2005) 49 ERG 90 [2005] ECHR 921; Beyeler v. Italy [GC], no. 33202/96 [108-14 ECHR 2000-I], referred to. Declaration of the Rights of Man and of the Citizen, (1789) and Universal of Human Rights, (1948) referred to. 1.7. Adverse Possession is a right which comes into play not just because someone loses high 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. [Para 58] [513-A, B] P. Krishnamoorthy, Romy Chacko, Girjesh Pandey and Rajiv Mehta for the Appellants. K.R. Sasiprabhu, Arvind Varma, Swati Sinha and Jaysree Singh (for M/S Fox Mandal & Co.) for the Respondents. =2007 AIR 1753, 2007(5 )SCR491 , 2007(6 )SCC59 , 2007(6 )SCALE95 , 2007(6 )JT86

CASE NO.:

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Appeal (civil) 7062 of 2000

PETITIONER:
P.T. Munichikkanna Reddy & Ors

RESPONDENT:
Revamma and Ors

DATE OF JUDGMENT: 24/04/2007

BENCH:
S.B. Sinha & Markandey Katju

JUDGMENT:
J U D G M E N T

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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