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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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