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Adverse possession
By reason of the Limitation Act, 1963 the legal position as was obtaining under the old Act underwent a change. In a suit governed by Article 65 of the 1963 Limitation Act, the plaintiff will succeed if he proves his title and it would no longer be necessary for him to prove, unlike in a suit governed by Articles 142 and 144 of the Limitation Act, 1908, that he was in possession within 12 years preceding the filing of the suit. On the contrary, it would be for the defendant so to prove if he wants to defeat the plaintiff’s claim to establish his title by adverse possession. =Md. Mohammad Ali (Dead) By LRs. RESPONDENT: Sri Jagadish Kalita & Ors. = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=19379
By reason of the Limitation Act, 1963 the legal position as was obtaining under the old Act underwent a change. In a suit governed by Article 65 of the 1963 Limitation Act, the plaintiff will succeed if he proves his title and it would no longer be necessary for him to prove, unlike in a … Continue reading
adverse possession can be used as a shield/defence but not as a weapon = Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings filed against the appellant and appellant is arrayed as defendant that it can use this adverse possession as a shield/defence.- As the appellant is in possession of the suit property since 13.4.1952 and has been granted the decree of injunction, it obviously means that the possession of the appellant cannot be disturbed except by due process of law. We make it clear that though the suit of the appellant seeking relief of declaration has been dismissed, in case respondents file suit for possession and/or ejectment of the appellant, it would be open to the appellant to plead in defence that the appellant had become the owner of property by adverse possession. Needless to mention at this stage, the appellant shall also be at liberty to plead that findings of issue No.1 to the effect that the appellant is in possession of adverse possession since 13.4.1952 operates as res- judicata. Subject to this clarification, the appeal is dismissed.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40774 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8244/2013 (arising out of S.L.P.(Civil) No. 23728 of 2012) Gurudwara Sahib …Appellant Vs. Gram Panchayat Village Sirthala & Anr. …Respondents J U D G M E N T A.K.SIKRI,J. 1. Leave granted. 2. The appellant herein … Continue reading
Code of Civil Procedure, 1908 – Suit in civil court for recovery of possession of agricultural land – Maintainability of – Held: Maintainable as neither plaintiff nor defendant claimed or admitted that there was relationship of landlord and agricultural tenant between them – Plaintiff’s case was that defendant was trespasser and case of defendant was that he was owner and was never tenant of suit land either under plaintiff or anyone else – Since suit was not for eviction of agricultural tenant, s.13 of 1956 Act not attracted – Andhra Pradesh (Andhra Areas) Tenancy Act, 1956 – ss.13, 16. Adverse possession – Suit for possession – Claim by defendant that he had perfected his title by adverse possession and suit was not maintainable for want of prayer for declaration of title – Held: Mere claim of adverse possession by defendant, does not mean that a cloud is raised over plaintiff’s title and that the plaintiff who is the owner, should file a suit for declaration of title – Unless the defendant raises a serious cloud over the title of the plaintiff, there is no need to file a suit for declaration – On facts, plaintiff had title and she only wanted possession and, therefore, suit for possession was maintainable. The respondent-plaintiff claiming herself to be the owner of certain agricultural land under a sale deed dated 10.4.1957 and alleging the appellant as trespasser, filed suit against him for possession of the suit land. The defendant denied the title of the plaintiff and claimed to have perfected his title by adverse possession. His case was that the sale deed dated 10.4.1957 was a nominal deed as was evident from an agreement dated 18.1.1959 executed by the plaintiff and; that since the plaintiff had stated in the plaint that she had leased out the land to him, she should have filed petition before the Revenue Court under the Andhra Pradesh (Andhra Areas) Tenancy Act, 1956. The Trial Court decreed the suit and the High Court affirmed the decree. In the instant appeal filed by the defendant, the questions for consideration before the Court were: (i) whether the plaintiff’s suit for possession in the civil court was not maintainable and whether the remedy was only by way of an eviction petition under s.13 of the Act; (ii) whether the suit was not maintainable for want of a prayer for declaration of title; (iii) whether the concurrent findings of fact recorded by the trial court and High Court that plaintiff was the owner of the suit property and that defendant had not made out title by adverse possession call for interference. Citation: 2008(11 )SCR849 ,2008(11 )SCALE160 ,2008(9 )JT295= Dismissing the appeal, the Court HELD: 1.1. Section 13 of Andhra Pradesh (Andhra Areas) Tenancy Act, 1956 requires an application to be made to the Special Officer under the Act only when a landlord wants to terminate the tenancy and evict his cultivating tenant and not otherwise. Termination of tenancy and eviction petition under s.13(e) are contemplated only where (a) the defendant is the cultivating tenant; and (b) the defendant wilfully denies the landlord’s title to the land. [Para 10, 11] [858 B-C, E & F] 1.2. It is true that in the instant case, the plaintiff had averred in the plaint that the defendant was closely related to her and on her request, she had leased the suit land to him in the year 1971. But the plaintiff further specifically alleged that the defendant had denied her title and claimed title in himself, and he had also denied the relationship of `landlord and tenant’; and that therefore, the defendant was a trespasser and she was entitled to sue for possession to evict the `trespasser’. The averment in the plaint should be read as a whole. If so done, it is clear that plaintiff claims that defendant is a trespasser in the suit land. Significantly, the defendant in his written statement did not allege that he was the cultivating tenant of the suit land either under the plaintiff or anyone else. On the other hand, he denied the title of plaintiff and asserted ownership and title in himself by adverse possession. Thus neither the plaintiff nor the defendant claimed or admitted that there was relationship of landlord and agricultural tenant between them. Consequently tenancy was not an issue in the suit nor was the suit for eviction of an agricultural tenant. Therefore Section 13 of the Act was not attracted. [Para 10] [857 E,F,G,H] 1.3. Mere denial of the title of the plaintiff by the defendant in respect of an agricultural land would not mean that only the authorities under the Act will have jurisdiction and that plaintiff should sue for eviction under the Act by approaching the Special Officer. Only a civil suit was the remedy to obtain possession from a trespasser. Further, to attract Section 16 of the Act, the person approaching the Special Officer should contend that he is either a landlord or a cultivating tenant, and admit the existence of the relationship of landlord and cultivating tenant between the parties. S.16 is only a provision enabling a landlord or cultivating tenant to approach the Special Officer for settlement of any dispute arising under the Act and it does not operate as a bar for a suit by an owner against a trespasser. [Para 11, 13] [859 B,C & 860-E,F] Abdulla Bin Ali v. Galappa 1985 (2) SCC 54 – relied on. D. Venkata Reddy v. B.Bhushireddy AIR (1971) A.P. 87 – referred to. 2.1. A mere claim by the defendant that he had perfected his title by adverse possession, does not mean that a cloud is raised over plaintiff’s title and that the plaintiff who is the owner, should file a suit for declaration of title. Unless the defendant raises a serious cloud over the title of the plaintiff, there is no need to file a suit for declaration. Plaintiff had title and she only wanted possession and therefore a suit for possession was maintainable. [Para 14] [861 B,C,D] Anathula Sudhakar v. P.Buchi Reddy (Dead) by LRs. & Ors. (2008) 4 SCC 594 – relied on. 2.2. Both the courts have entered a concurrent finding that the defendant did not establish adverse possession, and that mere possession for some years was not sufficient to claim adverse possession, unless such possession was hostile possession, denying the title of the true owner. The courts have pointed out that if according to defendant, plaintiff was not the true owner, his possession hostile to plaintiff’s title will not be sufficient and he had to show that his possession was also hostile to the title and possession of the true owner. After detailed analysis of the oral and documentary evidence, the trial court and High Court also held that the appellant was only managing the properties on behalf of the plaintiff and his occupation was not hostile possession. [Para 17] [862 E,F,G] 3. The trial Court and the High Court have concurrently held that (i) plaintiff had established her title to the suit land by purchase under sale deed dated 10.4.1957; (ii) the sale in favour of plaintiff was not nominal as alleged by defendant; (iii) the agreement dated 18.4.1959 put forth by defendant was a fabricated document; and (iv) the defendant had failed to establish title by adverse possession. Both the courts have considered the issues of fact in detail with reference to the evidence and recorded concurrent findings against the defendant. Neither any perversity nor omission to consider evidence nor any error of law has been pointed out with reference to consideration and appreciation of evidence by the trial court and the High Court. [Para 6 and 18] [855 F,G 862,H, 863-A,B] Case Law Reference 1985 (2) SCC 54 relied on Para 12 AIR (1971) A.P. 87 referred to Para 13 (2008) 4 SCC 594 relied on Para 14 Ravindra Shrivastava and A.T.M. Ranga Ramanujam, Kunal Verma, Rajul Shrivastav, Supriya Jain, K. Krishna Kumar, Anup Jain, P.R.K. Amarendra Kumar, Anu Gupta and Rami Jethmalani for the Appellant. P.S. Narasimha, M. Srinivas R. Rao, Abid Ali Beera P. And Sudha Gupta for the Respondent.
Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4788 OF 2008 (Arising out of SLP [C] No.23232 of 2007) Kurella Naga Druva Vudaya Bhaskara Rao … Appellant Vs. Galla Jani Kamma Alias Nacharamma … Respondent J U D G M E N T R.V.RAVEENDRAN, J. Leave granted. Heard learned counsel. 2. … Continue reading
Letters Patent (as applicable to the High Court of Andhra Pradesh): Clause 10 – Letters Patent Appeal – Power of Division Bench of High Court – HELD: Power of Division Bench, hearing a Letters Patent appeal from judgment of a Single Judge in a first appeal, is not limited only to a question of law u/s 100, but it has the same power which the Single Judge has as a first appellate court in respect of both questions of fact and of law. Adverse Possession: Suit for recovery of possession – Defendants’ pleas that they purchased the property and, alternatively, perfected title by adverse possession claiming to have come in possession under agreement of sale – HELD: Both the pleas have not been substantiated – Neither the purported sale deed nor the agreement of sale have been placed on record. Adverse possession – Ingredients of – Explained – HELD: Animus possidendi is a requisite ingredient of adverse possession – Mere possession does not ripen into possessory title until possessor holds property adverse to the title of true owner for a period of 12 years – The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that the possession was open and undisturbed – A person pleading adverse possession has no equities in his favour and he has to plead and establish clearly all necessary facts to establish adverse possession – Plea of adverse possession is not a pure question of law but a blended one of facts and law – Equities – Pleadings. Plaintiffs no. 1 and 2, the mother and the son, filed a suit against the brother and the sister of plaintiff no. 2 (defendants no. 1 and 2, respectively) for recovery of possession in respect of certain properties, including four acres of land pertaining to R.S. No. 44/3 (the land in dispute) situate in their village. Their case was that defendant No. 1 was looking after the land in dispute, but when he declined to deliver possession of the land in dispute, they filed a suit for recovery of possession and mesne profit. The plea of defendant no. 1 was that he purchased the land in dispute under a stamped agreement from `VR’, the father of plaintiff no. 1 and husband of plaintiff no. 2, for Rs.1600/-; that he paid Rs.1,000/- to `VR’ and a sum of Rs.225/- to one `BC’ who was the tenant and in possession of the land in dispute and the said tenant relinquished his possession and delivered the land to defendant No. 1; and that he had perfected his title by adverse possession. Though no issue of adverse possession was framed, but the trial court dismissed the suit, holding that title to the plaintiffs even if proved, got extinguished by adverse possession. The appeal filed by the plaintiffs was dismissed by the Single Judge of the High Court. However, their Letters Patent Appeal was allowed by the Division Bench of the High Court and the suit was decreed. In the appeal filed by the heirs and legal representatives of defendant No.1, it was contended for the appellants that the concurrent findings of facts of the trial court and the appellate court ought not to have been upset by the Division Bench in Letters Patent Appeal; and that the appellants had perfected their title by adverse possession and the findings so recorded by the trial court and the appellate court ought not to have been interfered in Letters Patent Appeal.- Dismissing the appeal, the Court HELD: 1. The Division Bench of the High Court rightly held that the “power of the Division Bench hearing a Letters Patent appeal under Clause 10 from the judgment of a Single Judge in a first appeal is not limited only to a question of law u/s 100 of the Code of Civil Procedure, but it has the same power which the Single Judge has as a first appellate court in respect of both questions of fact and of law. [para 10] [932-E-F] Asha Devi v. Dukhi Sao 1975 (1) SCR611= AIR 1974 SC 2048: (1974) 2 SCC 492 – relied on. 2.1. Mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The possession must be open and hostile enough so that it is known by the parties interested in the property. The plaintiff is bound to prove his title as also possession within 12 years and once he does that, the burden shifts on the defendant to establish that he has perfected his title by adverse possession. [para 14] [935-B-D] 2.2. Claim by adverse possession has two basic elements, i.e., the possession of the defendant should be adverse to the plaintiff and the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi, is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until possessor holds property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that the possession was open and undisturbed. [para 14] [935-E-F] T. Anjanappa v. Somalingappa 2006 (5 ) Suppl. SCR200 = (2006) 7 SCC 570 – relied on. 2.3. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, therefore, it is for him to plead and establish clearly all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. Plea of adverse possession is not a pure question of law but a blended one of fact and law. [para 14] [935-G-H] Karnataka Board of Wakf vs. Government of India and Ors. 2004 (1) Suppl. SCR255 = (2004) 10 SCC 779 – relied on. 2.4. In the instant case, the appellants have miserably failed to prove that they have perfected their title by adverse possession. It is significant to note that initial plea of the appellants was that they had purchased the property from the original owner, alternatively, by virtue of agreement of sale they came in possession of the property. Both these pleas have not been substantiated. Neither the purported sale deed nor agreement of sale have been placed on record. [para 15] [936-B] 2.5. As regards the plea of adverse possession, the appellants’ case is that out of the consideration money of Rs.1,600/-, defendant no. 1 paid Rs.1,000/- to the owner and on payment of Rs. 225/- to the tenant in possession, namely, `BC’, he relinquished his possession. This relinquishment of possession by the tenant shall not enure to the benefit of the appellants against the true owner so as to accept their claim for adverse possession. The appellants are required to prove that their possession was adverse to the true owner. [para 15] [936-D] 2.6. The plea of the appellants on the basis of the purported order dated 18.2.1954 of the Settlement Officer directing for issuance of Patta in favour of defendant no. 1 also does not advance their case. It is not the appellants’ case that plaintiffs were party before the Settlement Officer. Further, it is not in dispute that no Patta was issued in favour of the defendant no. 1, on the other hand, and in fact, rough Patta was issued in favour of plaintiff no. 2. Thus, the appellants have not proved the necessary ingredients to establish their title by adverse possession. The Division Bench of the High Court is absolutely right in rejecting the appellants’ plea of adverse possession and decreeing the plaintiffs’ suit. [para 15] [936-E-F] Case Law Reference: 1975 (1) SCR611 relied on para 10 2006 (5) Suppl. SCR200 relied on para 12 2004 (1) Suppl. SCR255 relied on para 13 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6039 of 2003. From the Judgment & Order dated 19.12.2001 of the High Court of Andhra Pradesh at Hyderabad in LPA No. 438 of 1988. Ananga Bhattacharya, Rohit R. (for V.G. Pragasam) for the Appellants. Abid Ali Beeran, Neeru Vaid for the Respondent.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6039 OF 2003 Chatti Konati Rao & Ors. …. Appellants Versus Palle Venkata Subba Rao …. Respondent J U D G M E N T CHANDRAMAULI KR. PRASAD, J. 1. Plaintiff No. 1 is the son of plaintiff No. 2, whereas original … Continue reading
unregistered sale deed= “collateral purpose” as under: “1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act. 2. Such unregistered document can however be used as an evidence for collateral purpose as provided in the proviso to Section 49 of the Registration Act. 3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration. 4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc., any right, title or interest in immovable property of the value of one hundred rupees and upwards. 5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.”
THE HON’BLE MR JUSTICE C.V.NAGARJUNA REDDY Civil Revision Petition No.176 of 2012 13.03.2012 Doma Govinda Raju and another Vanimisetti Papa Rao and others ^Counsel for the Petitioners: Sri P.Govind Reddy !Counsel for respondent No.2: Sri S.Subba Reddy Cases referred? 1 (2008) 8 SCC 564 2 2006 (1) ALT 76 3 AIR 1942 Bombay 268 4 … Continue reading
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.: 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 … Continue reading
Minority and Guardianship-Muslim minor represented in arbitration proceedings and in Court by brother who was not appointed guardian by Court-Award and decree on award are vitiated. Limitation Act, 1908, ss. 18 and 144-Renunciation of rights by co-owners in property in favour of one co-owner under wrong impression that it was endowed property-Property later discovered to be Matrooka property-Limitation for filing suit is governed by s. 144 Limitation Act 1908-Where knowledge of right to partition is held back by fraud limitation is extended under s. 18. Adverse possession-Possession by one co-owner is not by itself adverse to other co-owners-These must be open denial of title to the parties entitled to the property by excluding and ousting them-Possession is not adverse to parties not aware of their rights. =Shah Abdul Rahim was Sajjadanasheen of a Dargah and Khankah in Hyderabad. He had four sons and two daughters. After his death in 1905 he was succeeded as Sajjadanasheen by his eldest son Abdul Hai Shah Abdur Rahim left Matrooka property apart from the properties appertaining to the Dargah and Khankah. The matter of the partition of Matrooka properties was referred to arbitrators. The appellant who was Abdur Rahim’s youngest son was a minor at the time and was represented in the arbitration proceeding by his brother Nooruddin. The properties Exhibits B-1 to B-10 were acknowledged by the parties before arbitrators to be in the possession of Abdul Hai as Dargah and Khankah properties and any right or claim to them was renounced by Abdul Hai’s brothers and sisters. The arbitrators gave their award on August 1, 1908 partitioning the properties. On August 13, 1908 there was a decree in the Darul Khaza Court confirming the aforesaid award. The properties B-1 to B-10 thereafter remained in the possession of Abdul Hai. In 1927 Abdul Hai got an adjudication from the Nizam’s Government that the Dargah and Khankah properties consisted only of two villages and that properties B-1 to B-10 were not Dargah and Khankah properties. In 1938 Abdul Hai wrote a letter to the Nizam’s government again asserting that properties B-1 to B-10 were his personal properties. The appellant filed a suit on 24th July 1941 for setting aside the decree dated. August 13, 1908, passed by the Darul Khaza Court and for partition of the Matrooka properties left by his father including properties B-1 to B-10. He impeached the award and the decree on the ground that he was not represented by 1 lawful guardian. He claimed that the award and decree should be avoided because they were based on the wrongful representation of Abdul Hai that they were Dargah and Khankah properties. The trial court decreed the suit holding : (1) that the award and decree in question were obtained by fraud; (2) that the letter written by Abdul Hai in 1938 showed that he was aware of the Matrooka character of the properties but kept this fact from his brothers and sisters; (3) that the appellant 73 5 came to know the facts from the said letter of 1938 and the suit was not therefore barred by limitation. The High Court in appeal held (1) that the appellant was a minor and therefore reference to the arbitration and the award thereon were void; (2) that the decree passed by the Damlkhaza Court was not a nullity since the appellant did not file his suit within three years after attaining majority; (3) that the decree was not obtained by fraud; (4) that Abdul Hai asserted in 1927 that the properties in question were his personal properties and this assertion of title adverse to the appellant and his brothers and sisters became known to them in 1927 and for this reason also the suit was barred by limitation. in’ appeal by certificate to this Court, HELD: The appeal must be allowed, (i) The minority of the appellant was a fact found by the trial court and the High Court. The appellant’s brother who represented him in the arbitration and court proceedings was not a legal guardian, nor was he appointed by the Court. The relinquishment of property by Nooruddin on behalf of the minor was not binding on the minor whose interests were not protected. The arbitration proceedings, the award and the decree of the Darul Khaza Court on the award were therefore void. [740 D, 741 E-F] Mohd. Amin & Ors. v. Vakil Ahmed & Ors, [1952] S.C.R. 1133 and Imambandi v. Mutsaddi, 45 I.A. 73, referred to.’ (ii) The estate’ of a deceased Mohammedan devolves on his heirs at the moment of his death. The heirs succeed to the estate as tenants in common in specific shares. When the heirs continue to hold-the estate as tenants in common without dividing it and one of them subsequently brings a suit for recovery of the share the period of limitation for the suit does not run against him from the date of the death of the deceased but from the date of express ouster or denial of title and Art. 114 of Sch. 1 to the Limitation Act 1908 would be the relevant Article. [741 H, 742 A] (iii) The cause of action for partition of properties is a perpetually recurring one’. In Mohammedan Law the doctrine of partial partition is not applicable because the heirs are tenants in common and the heirs of the deceased Muslim succeed to the definite fraction of every part of his estate. In the present case the suit was for partition of properties which were by consent of parties treated as Dargah and Khankah but which were later discovered to be Matrooka properties in fact and therefore the declaration in the award and the decree on the award that those were Dargah and Khankah properties could not stand and the entire partition had to be reopened by reason of fraud in the earlier proceedings. [746 G-747 B] Monsharam Chakravarty & Ors. v. Gonesh Chandra Chakravarty & Ors., 17 C.W.N. 521, referred to. (iv) The decree of the Darul Khaza Court could not be an obstacle to, the claim of the appellant for partition of the properties, because the properties were admittedly not Dargah and Khankah properties but Matrooka Properties. If all parties- proceeded upon a basis that these , were Dargah and Khankah properties and that basis is wiped out by the adjudication by the Government of the Nizam, the parties are restored to their position as heirs to the Matrooka property. The award and the decree by reason of evidence of facts discovered since the judgment and the decree of the Darul Khaza Court could not be allowed to stand because the effect of the discovery of the facts was to make it “reason- ably probable that the action will succeed”. [744 H-745 B] 1100Sup CI/72 73 6 Birch v. Birch, [1902] Probate Division 131, referred to. (v) When a plaintiff has been kept from knowledge by the dependent of the circumstances constituting the fraud, the plaintiff can rely upon s. 18 of the Limitation Act to escape from the bar of limitation. When Abdul Hai got the properties released by reason of the decision of the Government of the Nizam in the year 1927 the properties became divisible among the appellant and his brothers and sisters. The existence of the right of the appellant was kept concealed by Abdul Hai. The appellant was not aware of the right nor could he have with reasonable diligence discovered it. There was active concealment by Abdul Hai of the fact that the properties were not Dargah and Khankah having full knowledge of the fact. It was only in 1941 that the appellant came to know of the Matrooka character of the properties. [745 E, 746 E] Rolfe v. Gregory, [1964] 4 DeG. J & S 576, Boman Chandra Datta v. Promotha Nath Ghose, L.L.R. 49 Cal. 886 and Rahimboy v. Turner, 20 I.A. 1. referred to. (vi) On the facts of the case it was established that the fraud committed by Abdul Hai relates “to matters which prima facie would be a reason for setting the judgment aside”. [747 E-F] Halsbury’s Laws of England, Third Edition, Vol. 22, para 1669 at p. 790. referred to. (vii) The plea of adverse possession must also fail. It was apparent that until the year 1927 the appellant and the other parties were already kept out of the knowledge of the true character of the properties. Even after 1927 it could not be said on the evidence On record that the appellant had any knowledge of the true character of the properties or of ouster or adverse possession of Abdul Hai. Possession by one co-owner is not by itself adverse to other co-owners. On the contrary possession by one co-owner is presumed to be the possession of all the co-owners unless it is established that the possession of the co-owner is in denial of title of co-oweners and the possession is in hostility to co-owners by exclusion of them. In the present case there was no evidence to support this conclusion. Ouster is an unequivocal act of assertion of title. There has to be open denial of title to the parties who are entitled to it by excluding and ousting them. [745 F-H] =1971 AIR 2184, 1971( 3 )SCR 734, , ,
PETITIONER: SYED SHAH GHULAM GHOUSE MOHIUDDIN AND ORS. Vs. RESPONDENT: SYED SHAH AHMED MORIUDDIN KAMISUL QUADRI(DEAD) BY L. Rs. AN DATE OF JUDGMENT17/02/1971 BENCH: RAY, A.N. BENCH: RAY, A.N. MITTER, G.K. CITATION: 1971 AIR 2184 1971 SCR (3) 734 ACT: Minority and Guardianship-Muslim minor represented in arbitration proceedings and in Court by brother who was … Continue reading
Indian Evidence Act, 1872. Sections 34, 61 and 114. Books of account–Entries–Proof of–Nobody supporting correctness of entries—-Account books liable to be reject- ed. Title–Proof- Presumption on basis of revenue entry–When arises. Limitation Act, 1963. Article 65–Adverse possession–Proof-Actual physical possession by claimant not necessary–Fact that property was in possession of tenants would be of no consequence. Indian Contract Act, 1872. Sections 182 and 188–Joint possession-Claim by agent–Agent actually collecting rent from tenants-Cannot claim joint possession of property. = Respondent No. 1 in the appeals instituted a suit for partition against his younger brothers and sisters, and the heirs of his deceased brothers. The plaintiff was the eldest among the brothers and sisters. The 1st and 2nd Defendants were his brothers, the 3rd Defendant his sister, the 4th and 5th Defendants, the widow and son respectively of the third brother. Defendant 6 was the widow of the fourth brother, and Defendants 7 to 12 were his children, while Defendant No. 14 was the wife of Defendant No. 1, and Defendants 13, 15, 16 and 17 were their children. The subject matter of the appeals related only to one item of property known as “Naroda Chawl” measuring 7 acres and 2 gunthas of land, where 115 rooms and huts stood con- structed, out of which 114 rooms had been let out to ten- ants, and one room was retained for the caretaker. According to Defendants No. 6 to 12 this property exclu- sively belonged to defendant No. 6 and was not liable to partition. The other defendants however supported the plain- tiff’s case that it belonged to the 233 joint family and was liable to partition. Defendants 6 to 12 pleaded that the plaintiff’s father- Bapalal orally gifted this property to his daughter-in-law Defendant No. 6 in March 1946 and made a statement before the Revenue authorities on . the basis of which her name was mutated and she was put in possession thereof, that although she came in peaceful possession, the management which in- cluded realisation of rent was in the hands of Defendant No. 1, that as some dispute arose in 1952 she assumed direct charge of the chawl and had remained in possession thereaf- ter, and that she had acquired good title therein by adverse possession before the suit was filed in 1960. The City Civil Judge who tried the suit, held that there was a joint Hindu family and a business was carried on for the benefit of the family and the income therefrom was thrown into the common pool and all the properties including the disputed chawl were treated as belonging to the family. As the case of Defendant No. 6 about the gift, the mutation of her name, and her exclusive possession from 1946 till the date of the suit was found correct, it was held that she had acquired title by adverse possession, and the suit was dismissed with respect to the disputed chawl. The plaintiff appealed to the High Court. Some of the defendants also filed appeals in respect of the other items of property. All these appeals were heard and disposed of by a common judgment. The High Court reversed the finding of adverse posses- sion in regard to the disputed chawl and granted a decree for partition. It held that Defendant No. 6 remained in exclusive possession of the property only since 1952, the period was thus short of the time required for prescription of title. It further held that since the rents of the chawl from 1952 were collected by her husband and after his death by her son (Defendant No. 7), she was liable to render accounts till the death of her husband, and she along with Defendant No. 7 would be jointly liable for the period thereafter. Separate Appeals were preferred by Defendant Nos. 6 and 7 to this Court. Allowing the Appeals, setting aside the decision of the High Court and restoring that of the Trial Court. 234 HELD: 1. The principle that revenue entry furnishes presumptive evidence of title is inapplicable in the instant case. It cannot be denied that title to Naroda Chawl could not have passed to Defendant No. 6 by virtue of the entry Ext. 247. The value of the chawl even in 1946 was large and no registered instrument of transfer was executed. Besides Ext. 247 describes the plaintiff’s father (Bapalal) and Defendant No. 6 (Chandrakanta) as Kabjedar, that is occu- pant. In such circumstances, the presumption which can be raised in favour of Defendant No. 6 from this entry is with respect of her possession and possession only. [238F-G] Gangabai and others v. Fakirgowda Somaypagowda Desai and others, AIR 1930 Privy Council 93; and Desai Navinkant Kesarlal v. Prabhat Kabhai, 9 Gujarat Law Reporter 694, referred to. 2. The account books have to be rejected as not reli- able. It is apparent from the evidence that nobody takes the responsibility of supporting the correctness of the entries therein. Many of the documents produced by Defendant No. 1 were accepted, but the account books which were S. Nos. 123-75 to 123-97 of Ext. 123 were in express terms not admitted. The plaintiff filed his objection–Ext. 172. Defendant No. 6 also filed her objection–Ext. 275. The books were admitted in evidence and marked as exhibits on the statement of the plaintiff which he made in cross-exami- nation. The plaintiff by saying that he had written as per the instructions of Defendant No. 1 made it clear that he Could not vouchsafe for its reliability. Defendant No. 1 could not summon courage to support them either personally or through any witness. No reason has been suggested as to why he did not produce other important documents in his possession which could have supported the account books and the joint case of the parties resisting the appellant’s claim. [243B-E] 3. Defendant No. 1 cannot be treated to be in joint possession as he was actually collecting the rents from the tenants. it is well settled that the possession of the agent is the possession of the principal and in view of the fidu- ciary relationship, Defendant No. 1 cannot be permitted to claim his own possession. [247D-E] David Lyeii v. John Lawson Kennedy, [1889] XIV H.L.(E) 437; Williams v. Pott, L.R. XII Equity Cases 149 and Secre- tary of State for India v. Krishnamoni Gupta, 29 Indian Appeals 104, referred to. 4(a). It is the intention to claim exclusive title which makes 235 possession adverse and this animus possidendi must be evi- denced and effectuated by the manner of occupancy which again depends upon the nature of the property. The manner of possession depends upon the kind of possession which the particular property is susceptible. That possession to the extent to which it is capable of demonstration must be hostile and exclusive and will cover only to the extent of the owner’s possession. [246E-F] (b). The title to the chawl as owner, subject to the tenancy was an interest in immovable property so as to be covered by Article 144 of the Indian Limitation Act, 1908, which specifically mentioned, “.. . or any interest therein”. [246E] In the instant case, the parties have been fighting for the rent from the chawl so long as it continued in posses- sion of the tenants. Before the gift of 1946 the Defendant No. 1 was collecting the rent and he continued to do so even thereafter till 1952. The appellant has, however, estab- lished her case that the Defendant No. 1 acted as her agent after 1946 and when he repudiated this agency in 1952 he was effectively removed from the management of the chawl. Since 1946 the tenants attorned to the Defendant No. 6 and paid rent to her under printed receipts announcing her ownership, but of course through her agent the Defendant No. 1. The fact that the tenants have been in actual physical posses- sion of the chawl is, in the circumstances, of no assistance to the respondents. What is material is that they paid the rent to the Defendant No. 6. Defendant No. 6 was in adverse possession from the period 1946 to 1952 through her agent Defendant No. 1 and thereafter through her husband and son Defendant No. 7 till 1960 when the suit was filed, the total period being more than 12 years. [246G-H; 248G] Uppalapati Veera Venkata Satyanarayanaraju and another v. Josyula Hanumayamma and another, [1963] 3 SCR 910 and Hari Prasad Agarwalla and another v. Abdul Haw and others, A.I.R. 1951 Patna 160, referred to. =1989 AIR 1269, 1989( 2 )SCR 232, 1989( 2 )SCC 630, 1989( 1 )SCALE802 , 1989( 4 )JT 115
PETITIONER: SMT. CHANDRAKANTABEN ETC. Vs. RESPONDENT: VADILAL BAPALAL MODI & OTHERS. DATE OF JUDGMENT30/03/1989 BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) KANIA, M.H. CITATION: 1989 AIR 1269 1989 SCR (2) 232 1989 SCC (2) 630 JT 1989 (4) 115 1989 SCALE (1)802 ACT: Indian Evidence Act, 1872. Sections 34, 61 and 114. Books of … Continue reading
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.
CASE NO.: 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 … Continue reading
Minority and Guardianship-Muslim minor represented in arbitration proceedings and in Court by brother who was not appointed guardian by Court-Award and decree on award are vitiated. Limitation Act, 1908, ss. 18 and 144-Renunciation of rights by co-owners in property in favour of one co-owner under wrong impression that it was endowed property-Property later discovered to be Matrooka property-Limitation for filing suit is governed by s. 144 Limitation Act 1908-Where knowledge of right to partition is held back by fraud limitation is extended under s. 18. Adverse possession-Possession by one co-owner is not by itself adverse to other co-owners-These must be open denial of title to the parties entitled to the property by excluding and ousting them-Possession is not adverse to parties not aware of their rights. =Shah Abdul Rahim was Sajjadanasheen of a Dargah and Khankah in Hyderabad. He had four sons and two daughters. After his death in 1905 he was succeeded as Sajjadanasheen by his eldest son Abdul Hai Shah Abdur Rahim left Matrooka property apart from the properties appertaining to the Dargah and Khankah. The matter of the partition of Matrooka properties was referred to arbitrators. The appellant who was Abdur Rahim’s youngest son was a minor at the time and was represented in the arbitration proceeding by his brother Nooruddin. The properties Exhibits B-1 to B-10 were acknowledged by the parties before arbitrators to be in the possession of Abdul Hai as Dargah and Khankah properties and any right or claim to them was renounced by Abdul Hai’s brothers and sisters. The arbitrators gave their award on August 1, 1908 partitioning the properties. On August 13, 1908 there was a decree in the Darul Khaza Court confirming the aforesaid award. The properties B-1 to B-10 thereafter remained in the possession of Abdul Hai. In 1927 Abdul Hai got an adjudication from the Nizam’s Government that the Dargah and Khankah properties consisted only of two villages and that properties B-1 to B-10 were not Dargah and Khankah properties. In 1938 Abdul Hai wrote a letter to the Nizam’s government again asserting that properties B-1 to B-10 were his personal properties. The appellant filed a suit on 24th July 1941 for setting aside the decree dated. August 13, 1908, passed by the Darul Khaza Court and for partition of the Matrooka properties left by his father including properties B-1 to B-10. He impeached the award and the decree on the ground that he was not represented by 1 lawful guardian. He claimed that the award and decree should be avoided because they were based on the wrongful representation of Abdul Hai that they were Dargah and Khankah properties. The trial court decreed the suit holding : (1) that the award and decree in question were obtained by fraud; (2) that the letter written by Abdul Hai in 1938 showed that he was aware of the Matrooka character of the properties but kept this fact from his brothers and sisters; (3) that the appellant 73 5 came to know the facts from the said letter of 1938 and the suit was not therefore barred by limitation. The High Court in appeal held (1) that the appellant was a minor and therefore reference to the arbitration and the award thereon were void; (2) that the decree passed by the Damlkhaza Court was not a nullity since the appellant did not file his suit within three years after attaining majority; (3) that the decree was not obtained by fraud; (4) that Abdul Hai asserted in 1927 that the properties in question were his personal properties and this assertion of title adverse to the appellant and his brothers and sisters became known to them in 1927 and for this reason also the suit was barred by limitation. in’ appeal by certificate to this Court, HELD: The appeal must be allowed, (i) The minority of the appellant was a fact found by the trial court and the High Court. The appellant’s brother who represented him in the arbitration and court proceedings was not a legal guardian, nor was he appointed by the Court. The relinquishment of property by Nooruddin on behalf of the minor was not binding on the minor whose interests were not protected. The arbitration proceedings, the award and the decree of the Darul Khaza Court on the award were therefore void. [740 D, 741 E-F] Mohd. Amin & Ors. v. Vakil Ahmed & Ors, [1952] S.C.R. 1133 and Imambandi v. Mutsaddi, 45 I.A. 73, referred to.’ (ii) The estate’ of a deceased Mohammedan devolves on his heirs at the moment of his death. The heirs succeed to the estate as tenants in common in specific shares. When the heirs continue to hold-the estate as tenants in common without dividing it and one of them subsequently brings a suit for recovery of the share the period of limitation for the suit does not run against him from the date of the death of the deceased but from the date of express ouster or denial of title and Art. 114 of Sch. 1 to the Limitation Act 1908 would be the relevant Article. [741 H, 742 A] (iii) The cause of action for partition of properties is a perpetually recurring one’. In Mohammedan Law the doctrine of partial partition is not applicable because the heirs are tenants in common and the heirs of the deceased Muslim succeed to the definite fraction of every part of his estate. In the present case the suit was for partition of properties which were by consent of parties treated as Dargah and Khankah but which were later discovered to be Matrooka properties in fact and therefore the declaration in the award and the decree on the award that those were Dargah and Khankah properties could not stand and the entire partition had to be reopened by reason of fraud in the earlier proceedings. [746 G-747 B] Monsharam Chakravarty & Ors. v. Gonesh Chandra Chakravarty & Ors., 17 C.W.N. 521, referred to. (iv) The decree of the Darul Khaza Court could not be an obstacle to, the claim of the appellant for partition of the properties, because the properties were admittedly not Dargah and Khankah properties but Matrooka Properties. If all parties- proceeded upon a basis that these , were Dargah and Khankah properties and that basis is wiped out by the adjudication by the Government of the Nizam, the parties are restored to their position as heirs to the Matrooka property. The award and the decree by reason of evidence of facts discovered since the judgment and the decree of the Darul Khaza Court could not be allowed to stand because the effect of the discovery of the facts was to make it “reason- ably probable that the action will succeed”. [744 H-745 B] 1100Sup CI/72 73 6 Birch v. Birch, [1902] Probate Division 131, referred to. (v) When a plaintiff has been kept from knowledge by the dependent of the circumstances constituting the fraud, the plaintiff can rely upon s. 18 of the Limitation Act to escape from the bar of limitation. When Abdul Hai got the properties released by reason of the decision of the Government of the Nizam in the year 1927 the properties became divisible among the appellant and his brothers and sisters. The existence of the right of the appellant was kept concealed by Abdul Hai. The appellant was not aware of the right nor could he have with reasonable diligence discovered it. There was active concealment by Abdul Hai of the fact that the properties were not Dargah and Khankah having full knowledge of the fact. It was only in 1941 that the appellant came to know of the Matrooka character of the properties. [745 E, 746 E] Rolfe v. Gregory, [1964] 4 DeG. J & S 576, Boman Chandra Datta v. Promotha Nath Ghose, L.L.R. 49 Cal. 886 and Rahimboy v. Turner, 20 I.A. 1. referred to. (vi) On the facts of the case it was established that the fraud committed by Abdul Hai relates “to matters which prima facie would be a reason for setting the judgment aside”. [747 E-F] Halsbury’s Laws of England, Third Edition, Vol. 22, para 1669 at p. 790. referred to. (vii) The plea of adverse possession must also fail. It was apparent that until the year 1927 the appellant and the other parties were already kept out of the knowledge of the true character of the properties. Even after 1927 it could not be said on the evidence On record that the appellant had any knowledge of the true character of the properties or of ouster or adverse possession of Abdul Hai. Possession by one co-owner is not by itself adverse to other co-owners. On the contrary possession by one co-owner is presumed to be the possession of all the co-owners unless it is established that the possession of the co-owner is in denial of title of co-oweners and the possession is in hostility to co-owners by exclusion of them. In the present case there was no evidence to support this conclusion. Ouster is an unequivocal act of assertion of title. There has to be open denial of title to the parties who are entitled to it by excluding and ousting them. [745 F-H] =1971 AIR 2184, 1971( 3 )SCR 734, , ,
PETITIONER: SYED SHAH GHULAM GHOUSE MOHIUDDIN AND ORS. Vs. RESPONDENT: SYED SHAH AHMED MORIUDDIN KAMISUL QUADRI(DEAD) BY L. Rs. AN DATE OF JUDGMENT17/02/1971 BENCH: RAY, A.N. BENCH: RAY, A.N. MITTER, G.K. CITATION: 1971 AIR 2184 1971 SCR (3) 734 ACT: Minority and Guardianship-Muslim minor represented in arbitration proceedings and in Court by brother who was … Continue reading
advocatemmmohan 