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Adverse Possession-meaning of and requirements of acquisition of title by adverse possession-Suit claiming title to the property on the basis of Municipal records-Possession of the property by plaintiff three years prior to filing of the suit-Allegation against defendants of encroachments on a portion of the property-Defendants stating that the land belonged to Government and they were in adverse possession of the same-Held: Defendants’ plea of being in adverse possession of the property is not established-If the occupant is not sure of the actual ownership of the property, the question of his being in hostile possession and denying the title of the true owner does not arise-A possession, in order to be adverse, should be a hostile possession in express or implied denial of the title of the true owner-Such possession must be peaceful, open and continuous-If possession can be referred to a lawful title, the same cannot be considered to be adverse-The burden to prove is on the person who bases his title on adverse possession-Limitation Act, 1963-Section 65-Evidence-Burden of proof. Words and Phrases: ” Adverse possession”-Meaning of. Appellants filed a suit claiming title to the property in question by virtue of entries in the Municipal records. Appellants purchased the property from its owner two days after filing of the suit. The erstwhile owner had mortgaged the property in favour of the appellant. The allegation of the appellants was that the respondents had encroached upon a portion of the property putting a hutment about 3 years prior to filing of the suit. Respondents denied the title of the appellants, contending that they were in possession of the premises for about 16 years; that the land was a Government land; that they were paying tax to the municipality; that they were in adverse possession of the land; and that the area had been declared a slum area. Respondents also filed a counter suit. Trial Court dismissed the suit of the appellants and allowed that of the respondents. Appellate Court upheld the title of the appellants and granted them relief of possession setting aside the judgment of trial court in both the suits. In second appeal, High Court held that the respondents had established their plea of adverse possession of a portion of the property, hence grant of decree for declaration of title and possession to that extent in favour of appellants was bad in law. Hence the present appeals.

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CASE NO.:
Appeal (civil) 3594 of 2006

PETITIONER:
T. Anjanappa and Ors

RESPONDENT:
Somalingappa and Anr

DATE OF JUDGMENT: 22/08/2006

BENCH:
ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) Nos. 24307-24308 of 2004)

ARIJIT PASAYAT, J

 Leave granted.

 Challenge in these appeals is to the correctness of the 
judgment rendered by a learned Single Judge of the Karnataka 
High Court allowing in part two Second Appeals filed by the 
respondents in the present appeals. 

Background facts in a nutshell are as under:

 Two appeals were filed before the High Court against the 
judgment and decree passed by Civil Judge, Senior Division, 
Bellary in RA No.15/94 and RA No.16/94 arising out of 
O.S.No.168/85 and O.S.No.286/88 respectively on the file of 
Principal Munsiff, Bellary. O.S.No.168/85 was filed by the 
appellants. They filed a suit for declaration of title in respect 
of the suit schedule property described as a house site 
measuring 25' x 75' pictorially described in the rough sketch 
accompanying the plaint and which form part of CTS 
No.373/3A/1A/2/B in Block No.XXIV, Ward No.XXII, 
Devinagar, Bellary City. The plaintiffs claimed title to the 
property by virtue of entries in the Municipality records. The 
suit site was originally granted by Municipality to one 
Thippanna in the year 1962 from whom one Siddalinagana 
Gouda purchased in the year 1971 under registered sale deed. 
One Narasimhappa purchased the suit property from 
Siddalingana Gouda by a registered sale deed in the year 
1978. The plaintiffs purchased the suit site from 
Narasimhappa under Ex.P.1 on 29.5.1985, two days after 
filing of the suit. It is said that the erstwhile owner 
Narasimhappa had mortgaged the property in favour of 
plaintiff. According to plaintiffs, the defendants had 
encroached upon a portion of the suit property to an extent of 
15' x 25', put a hutment about three years prior to the suit, 
and therefore, on the strength of title the plaintiff sought for 
the relief of declaration of title and possession and also sought 
for injunction against the defendant not to repair or put up 
any permanent structure on the suit site. The defendants filed 
the written statement denying the title of the plaintiff 
contending that the defendants are in possession of the 
premises since the year 1969 by putting up hutment and 
paying tax to the municipality. The defendants also contended 
that the property is a government land and they are in adverse 
possession of the property. A defence was also taken that the 
area has been declared as a slum area. Hence, they prayed for 
dismissal of the suit. 

 During the pendency of O.S. No.168/85, the defendant 
No.1 therein filed a suit in O.S. No.286/88. The plaint 
averments are reproduction of the written statement in 
O.S.No.168/85. 

 The trial Court dismissed the suit of T. Anjanappa, T. 
Sekharam and T. Govind (plaintiffs in O.S. NO.168/85) by 
rejecting claim of plaintiffs' title to the property. The suit filed 
by T. Somalingappa i.e. O.S.No.286/88 came to be allowed. 
Present appellants filed two appeals against the judgment and 
decree in O.S.No.168/85 and O.S.No.286/88 before the Civil 
Judge, Senior Division, Bellary. In appeal, the appellate court 
set aside the judgment and decree of the trial Court in 
O.S.No.168/85 and O.S.No.286/88, upheld the title of the 
plaintiffs and also granted relief of possession and thus 
allowed both the appeals filed by the plaintiffs. Second Appeals 
were filed challenging correctness thereof by T. Somalingappa 
and Dakshyanamma. 

 The following substantial questions of law were 
formulated at the time of admission :

1. Though the appellate Court has 
concurred with the findings of the Principal 
Munsiff regarding the appellant's possession 
and enjoyment of the property even before the 
purchase of the property by the respondent, 
whether the appellate court was justified in 
dismissing the suit of the appellants for 
injunction which was decreed by the Principal 
Munsiff.

2. The suit schedule property which was 
declared by the Government as a slum area, 
the action of the Municipality in granting 
allotment of the same in favour of the other 
persons. Whether the Municipality has got the 
power to allow the site, which was declared as 
a slum area by the government in favour of 
other persons.

The following additional substantial questions of law 
were framed at the time of hearing:

(1) Whether the appellate Court was right in 
declaring title of the plaintiffs on the 
basis of Ex.P.1 which came to be 
executed after filing of the suit in 
O.S.No.168/85?

(2) Whether the appellate court committed 
error in appreciating the oral and 
documentary evidence regarding the plea 
of adverse possession put forth by the 
defendants and the findings thereon are 
perverse and contrary to evidence on 
record?

According to the High Court, ticklish situation arose in 
the legal combat between the parties. When the suit 
O.S.No.168/85 was filed, obviously the plaintiffs had no title 
to the property, but they sought for declaration of title. In the 
absence of title, there was no basis for the plaintiffs to seek 
possession from the defendants. It was contended that the 
plaintiffs had taken the property as a security in a mortgage 
transaction from the erstwhile owner. High Court noted that 
the mortgage deed is not produced. It was observed that there 
is nothing on record to show that it was a possessory 
mortgage. Unless the plaintiffs had some kind of title or 
possessory interest they could not have sought for relief for 
possession. 

 According to the High Court though the defendants were 
in possession under the mistaken assumption of title with 
themselves or with the Government, same cannot be a ground 
to hold that the possession is not a hostile possession from the 
standpoint of the real owner. It was further held that the real 
owner when dispossessed under Article 64 of the Indian 
Limitation Act, 1963 (in short the 'Limitation Act') has to seek 
possession within 12 years from the date of dispossession. It 
was therefore held that the findings of the court below i.e. first 
appellate Court that the defendants had failed to prove the 
plea of adverse possession is perverse and contrary to law and 
evidence on record. After holding so, it was further held that 
though the documents produced by the defendants do not 
fully establish the case of adverse possession to the full extent 
of 15' x 75', yet the stand of the defendants about actual 
physical possession read with the admission of the plaintiffs 
sufficiently establish that the defendants were in adverse 
possession of 15' x 75'. It was further held that even 
otherwise, the suit for possession to that extent was not filed 
within 12 years of dispossession and therefore grant of decree 
for declaration of the title and possession to that extent in 
favour of plaintiffs (appellants herein) is bad in law and liable 
to be set aside. 

 Learned counsel for the appellants submitted that the 
High Court's approach is clearly unsustainable in law. The 
concept of adverse possession has been clearly misunderstood 
by the High Court. 

 Learned counsel for the respondents on the other hand 
submitted that in view of the accepted position that the 
defendants were in possession for more than 12 years and 
that actual physical possession was with them the High Court 
cannot be faulted. 

 The concept of adverse possession contemplates a hostile 
possession i.e. a possession which is expressly or impliedly in 
denial of the title of the true owner. Possession to be adverse 
must be possession by a person who does not acknowledge the 
other's rights but denies them. The principle of law is firmly 
established that a person who bases his title on adverse 
possession must show by clear and unequivocal evidence that 
his possession was hostile to the real owner and amounted to 
denial of his title to the property claimed. For deciding whether 
the alleged acts of a person constituted adverse possession, 
the animus of the person doing those acts is the most crucial 
factor. Adverse possession is commenced in wrong and is 
aimed against right. A person is said to hold the property 
adversely to the real owner when that person in denial of the 
owner's right excluded him from the enjoyment of his property.

 Possession to be adverse must be possession by a person 
who does not acknowledge the other's rights but denies them. 
It is a matter of fundamental principle of law that where 
possession can be referred to a lawful title, it will not be 
considered to be adverse. It is on the basis of this principle 
that it has been laid down that since the possession of one co-
owner can be referred to his status as co-owner, it cannot be 
considered adverse to other co-owner. (See Vidya Devi v. Prem 
Prakash and Ors. (1995 (4) SCC 496).

Adverse possession is that form of possession or 
occupancy of land which is inconsistent with the title of the 
rightful owner and tends to extinguish that person's title. 
Possession is not held to he adverse if it can be referred to a 
lawful title. The person setting up adverse possession may 
have been holding under the rightful Owner's title e.g. 
trustees, guardians, bailiffs or agents. Such persons cannot 
set up adverse possession.

"Adverse possession" means a hostile possession which is 
expressly or impliedly in denial of title of the true owner. 
Under Article 65 of the Limitation Act, burden is on the 
defendants to prove affirmatively. A person who bases his title 
on adverse possession must show by clear and unequivocal 
evidence i.e. possession was hostile to the real owner and 
amounted to a denial of his title to the property claimed. In 
deciding whether the acts, alleged by a person, constitute 
adverse possession, regard must be had to the animus of the 
person doing those acts which must be ascertained from the 
facts and circumstances of each case. The person who bases 
his title on adverse possession, therefore, must show by clear 
and unequivocal evidence i.e. possession was hostile to the 
real owner and amounted to a denial of his title to the property 
claimed. (See Annasaheb v. B.B. Patil (AIR 1995 SC 895 at 
902).

Where possession could be referred to a lawful title, it will 
not be considered to be adverse. The reason being that a 
person whose possession can be referred to a lawful title will 
not be permitted to show that his possession was hostile to 
another's title. One who holds possession on behalf of another 
does not by mere denial of that other's title make his 
possession adverse so as to give himself the benefit of the 
statute of limitation. Therefore, a person who enters into 
possession having a lawful title, cannot divest another of that 
title by pretending that he had no title at all.

An occupation of reality is inconsistent with the right of 
the true owner. Where a person possesses property in a 
manner in which he is not entitled to possess it, and without 
anything to show that he possesses it otherwise than an owner 
(that is, with the intention of excluding all persons from it, 
including the rightful owner), he is in adverse possession of it. 
Thus, if A is in possession of a field of B's, he is in adverse 
possession of it unless there is something to show that his 
possession is consistent with a recognition of B's title. (See 
Ward v. Carttar (1866) LR 1 Eq.29). Adverse possession is of 
two kinds, according as it was adverse from the beginning, or 
has become so subsequently. Thus, if a mere trespasser takes 
possession of A's property, and retains it against him, his 
possession is adverse ab initio. But if A grants a lease of land 
to B, or B obtains possession of the land as A's bailiff, or 
guardian, or trustee, his possession can only become adverse 
by some change in his position. Adverse possession not only 
entitled the adverse possessor, like every other possessor, to 
be protected in his possession against all who cannot show a 
better title, but also, if the adverse possessor remains in 
possession for a certain period of time produces the effect 
either of barring the right of the true owner, and thus 
converting the possessor into the owner, or of depriving the 
true owner of his right of action to recover his property and 
this although the true owner is ignorant of the adverse 
possessor being in occupation. (See Rains v. Buxion (1880 (14) 
Ch D 537). 

Adverse possession is that form of possession or 
occupancy of land which is inconsistent with the title of any 
person to whom the land rightfully belongs and tends to 
extinguish that person's title, which provides that no person 
shall make an entry or distress, or bring an action to recover 
any land or rent, but within twelve years next after the time 
when the right first accrued, and does away with the doctrine 
of adverse possession, except in the cases provided for by 
Section 15. Possession is not held to be adverse if it can be 
referred to a lawful title.

According to Pollock, "In common speech a man is said to 
be in possession of anything of which he has the apparent 
control or from the use of which he has the apparent powers of 
excluding others".

It is the basic principle of law of adverse possession that 
(a) it is the temporary and abnormal separation of the property 
from the title of it when a man holds property innocently 
against all the world but wrongfully against the true owner; (b) 
it is possession inconsistent with the title of the true owner. 

 In Halsbury's 1953 Edition, Volume-I it has been stated 
as follows:

 "At the determination of the statutory period 
limited to any person for making an entry or 
bringing an action, the right or title of such 
person to the land, rent or advowson, for the 
recovery of which such entry or action might 
have been made or brought within such period 
is extinguished and such title cannot 
afterwards be reviewed either by re-entry or by 
subsequent acknowledgement. The operation 
of the statute is merely negative, it 
extinguished the right and title of the 
dispossessed owner and leaves the occupant 
with a title gained by the fact of possession 
and resting on the infirmity of the right of the 
others to eject him"

 It is well recognized proposition in law that mere 
possession however long does not necessarily means that it is 
adverse to the true owner. Adverse possession really means 
the hostile possession which is expressly or impliedly in denial 
of title of the true owner and in order to constitute adverse 
possession the possession proved must be adequate in 
continuity, in publicity and in extent so as to show that it is 
adverse to the true owner. The classical requirements of 
acquisition of title by adverse possession are that such 
possession in denial of the true owner's title must be peaceful, 
open and continuous. The possession must be open and 
hostile enough to be capable of being known by the parties 
interested in the property, though it is not necessary that 
there should be evidence of the adverse possessor actually 
informing the real owner of the former's hostile action.  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. Therefore, 
the appeal which relates to OS 168/85 is allowed by setting 
aside the impugned judgment of the High Court to that extent. 
Equally, the High Court has proceeded on the basis that the 
plaintiff in OS.286/88 had established his plea of possession. 
The factual position does not appear to have been analysed by 
the High Court in the proper perspective. When the High Court 
was upsetting the findings recorded by the court below i.e. 
first appellate Court it would have been proper for the High 
Court to analyse the factual position in detail which has not 
been done. No reason has been indicated to show as to why it 
was differing from the factual findings recorded by it. The first 
appellate Court had categorically found that the appellants in 
the present appeals had proved possession three years prior to 
filing of the suit. This finding has not been upset. Therefore, 
the High Court was not justified in setting aside the first 
appellate Court's order. The appeal before this Court relating 
to O.S. 286 of 1988 also deserves to be allowed. Therefore, 
both the appeals are allowed but without any order as to 
costs.  The appeals are disposed of accordingly.

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