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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 been  recorded in Survey No. 153/1 of Chikkabanavara Village.  Nanjapa,  adoptive father of Respondent No. 1 purchased a portion thereof measuring  1 acre 21 guntas on 11.09.1933.  By reason of two different sale deeds, dated  11.04.1934 and 5.07.1936, the appellants herein purchased 2 acre 15 guntas  and 3 acre 8 guntas of land respectively, out of the said plot.  Despite the  fact that Nanjapa purchased a portion of the said plot, the appellants  allegedly took over possession of the entire 5 acre 23 guntas of land after the  aforementioned purchases.  However, when allegedly their possession was  sought to be disturbed by the respondent in the year 1988, they filed a suit in  the court of Additional City Civil Judge, Bangalore which was marked as  O.S. No. 287 of 1989.  In the said suit, they clamed title on the basis of  adverse possession stating:

"\005The plaintiffs submit that in any event  the plaintiffs have perfected their title by adverse  possession as the plaintiffs have been in open,  continuous uninterrupted and hostile possession of  the plaint schedule land, adversely to the interest  of any other person including the defendant for the  past over fifty years exercising absolute rights of  ownership in respect of the plaint schedule land\005"

Defendants \026 Respondents in their written statement denied and  disputed the aforementioned assertion of the plaintiffs and pleaded their own  right, title and interest as also possession in or over the said 1 acre 21 guntas  of land.  The learned Trial Judge decreed the suit inter alia holding that the  plaintiffs \026 appellants have acquired title by adverse possession as they have  been in possession of the lands in question for a period of more than 50  years.  On an appeal having been preferred there against by the respondents  before the High Court, the said judgment of the Trial Court was reversed  holding:  (i) "\005The important averments of adverse  possession are two fold.  One is to recognize  the title of the person against whom adverse  possession is claimed.  Another is to enjoy the  property adverse to the title holder’s interest  after making him known that such enjoyment is  against his own interest.  These two averments  are basically absent in this case both in the  pleadings as well as in the evidence\005" (ii) "The finding of the Court below that the  possession of the plaintiffs’ become adverse to  the defendants between 1934-1936 is again an

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error apparent on the face of the record.  As it is  now clarified before me by the learned counsel  for the appellants that the plaintiffs’ claim in  respect of the other land of the defendants is  based on the subsequent sale deed dated  5.7.1936. It is settled law that mere possession even if it  is true for any number of years will not cloth  the person in enjoyment with the title by  adverse possession.  As indicated supra, the  important ingredients of adverse possession  should have been satisfied."

SUBMISSIONS

Mr. P. Krishnamoorthy, learned senior counsel appearing on behalf of  the appellants, submitted that the High Court committed a manifest error in  arriving at the aforementioned conclusion as it failed to take into  consideration the principle that acknowledgement of the owner’s title was  not sine qua non for claiming title by prescription.  Reliance in this behalf  has been placed on Secy. of State v. Debendra Lal Khan [AIR 1934 PC 23]  and State of West Bengal v. The Dalhousie Institute Society [AIR 1970 SC  1798].   The learned counsel appearing on behalf of the respondents, on the  other hand, supported the impugned judgment.

CHARACTERIZING ADVERSE POSSESSION Adverse possession in one sense is based on the theory or  presumption that the owner has abandoned the property to the adverse  possessoror on the acquiescence of the owner to the hostile acts and claims  of the person in possession. It follows that sound qualities of a typical  adverse possession lie in it being open, continuous and hostile. [See  Downing v. Bird, 100 So. 2d 57 (Fla. 1958), Arkansas Commemorative  Commission v. City of Little Rock, 227 Ark. 1085, 303 S.W.2d 569 (1957);  Monnot v. Murphy, 207 N.Y. 240, 100 N.E. 742 (1913); City of Rock  Springs v. Sturm, 39 Wyo. 494, 273 P. 908, 97 A.L.R. 1 (1929).] Efficacy of adverse possession law in most jurisdictions depend on  strong limitation statutes by operation of which right to access the court  expires through effluxion of time. As against rights of the paper-owner, in  the context of adverse possession, there evolves a set of competing rights in  favour of the adverse possessor who has, for a long period of time, cared for  the land, developed it,  as against the owner of the property who has ignored  the property. Modern statutes of limitation operate, as a rule, not only to cut  off one’s right to bring an action for the recovery of property that has been in  the adverse possession of another for a specified time, but also to vest the  possessor with title. The intention of such statutes is not to punish one who  neglects to assert rights, but to protect those who have maintained the  possession of property for the time specified by the statute under claim of  right or color of title. (See American Jurisprudence, Vol. 3, 2d, Page 81). It  is important to keep in mind while studying the American notion of  Adverse Possession, especially in the backdrop of Limitation Statutes,  that the intention to dispossess can not be given a complete go by.  Simple application of Limitation shall not be enough by itself for the  success of an adverse possession claim. To understand the true nature of adverse possession, Fairweather v  St Marylebone Property Co [1962] 2 WLR 1020, [1962] 2 All ER 288  can be considered where House of Lords referring to Taylor v. Twinberrow  [1930] 2 K.B. 16, termed adverse possession as a negative and  consequential right effected only because somebody else’s positive right  to access the court is barred by operation of law:  "In my opinion this principle has been settled law  since the date of that decision. It formed the basis  of the later decision of the Divisional Count in  Taylor v. Twinberrow [1930] 2 K.B. 16, in which  it was most clearly explained by Scrutton, L.J.

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that it was a misunderstanding of the legal effect  of 12 years adverse possession under the  Limitation Acts to treat it as if it gave a title  whereas its effect is " merely negative " and,  where the possession had been against a tenant,  its only operation was to bar his right to claim  against the man in possession (see loc. cit. p. 23).  I think that this statement needs only one  qualification: a squatter does in the end get a title  by his possession and the indirect operation of  the Act and he can convey a fee simple. If this principle is applied, as it must be, to  the Appellant’s situation, it appears that the  adverse possession completed in 1932 against the  lessee of No. 315 did not transfer to him either  the lessee’s’ term or his rights against or has  obligations to the landlord who held the  reversion. The appellant claims to be entitled to  keep the landlord at bay until the expiration of  the term by effluxion of time in 1992: but, if he  is, it cannot be because he is the transferee or  holder of the term which was granted to the  lessee. He is in possession by his own right, so  far as it is a right: and it is a right so far as the  statutes of limitation which govern the matter  prescribe both when the rights to dispossess him  are to be treated as accruing and when, having  accrued, they are thereafter to be treated as  barred. In other words, a squatter has as much  protection as but no more protection than the  statutes allow: but he has not the title or estate of  the owner or owners whom he has dispossessed  nor has he in any relevant sense an estate  "commensurate with" the estate of the  dispossessed. All that this misleading phrase can  mean is that, since his possession only defeats the  rights of those to whom it has been adverse, there  may be rights not prescribed against, such, for  instance, as equitable easements, which axe no  less enforceable against him in respect of the  land than they would have been against the  owners he has dispossessed."

Also see Privy Council’s decision in Chung Ping Kwan and Others v.  Lam Island Development Company Limited (Hong Kong) [(1997) AC 38] in  this regard.  Therefore, to assess a claim of adverse possession, two-pronged  enquiry is required: 1.      Application of limitation provision thereby jurisprudentially  "willful neglect" element on part of the owner established.  Successful application in this regard distances the title of the land  from the paper-owner. 2.      Specific Positive intention to dispossess on the part of the  adverse possessor effectively shifts the title already distanced  from the paper owner, to the adverse possessor. Right thereby  accrues in favour of adverse possessor as intent to dispossess is  an express statement of urgency and intention in the upkeep of  the property.  

It is interesting to see the development of adverse possession law in  the backdrop of the status of Right to Property in the 21st Century.  The  aspect of stronger Property Rights Regime in general, coupled with efficient  legal regimes furthering the Rule of Law argument, has redefined the  thresholds in adverse possession law not just in India but also by the  Strasbourg Court. Growth of Human Rights jurisprudence in recent times

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has also palpably affected the developments in this regard. .

NEW CONSIDERATION IN ADVERSE POSSESSION LAW  In that context it is relevant to refer to JA Pye (Oxford) Ltd v. United  Kingdom [2005] 49 ERG 90, [2005] ECHR 921 wherein the European Court  of Human Rights while referring to the Court of Appeal judgment  ([2001]EWCA Civ 117, [2001]Ch 804) made the following reference:

"Lord Justice Keene took as his starting point that  limitation periods were in principle not incompatible  with the Convention and that the process whereby a  person would be barred from enforcing rights by the  passage of time was clearly acknowledged by the  Convention (Convention for the Protection of  Human Rights and Fundamental Freedoms). This  position obtained, in his view, even though  limitation periods both limited the right of access to  the courts and in some circumstances had the effect  of depriving persons of property rights, whether real  or personal, or of damages: there was thus nothing  inherently incompatible as between the 1980 Act  and Article 1 of the Protocol."

This brings us to the issue of mental element in adverse possession  cases-intention.  

1. Positive Intention The aspect of positive intention is weakened in this case by the sale  deeds dated 11.04.1934 and 5.07.1936. Intention is a mental element which  is proved and disproved through positive acts. Existence of some events can  go a long way to weaken the presumption of intention to dispossess which  might have painstakingly grown out of long possession which otherwise  would have sufficed in a standard adverse possession case.. The fact of  possession is important in more than one ways: firstly, due compliance on  this count attracts limitation act and it also assists the court to unearth as the  intention to dispossess.  At this juncture, it would be in the fitness of circumstances to discuss  intention to dispossess vis-‘-vis intention to possess. This distinction can be  marked very distinctively in the present circumstances.  Importantly, intention to possess can not be substituted for intention to  dispossess which is essential to prove adverse possession. The factum of  possession in the instant case only goes on to objectively indicate intention  to possess the land. As also has been noted by the High Court, if the  appellant has purchased the land without the knowledge of earlier sale, then  in that case the intention element is not of the variety and degree which is  required for adverse possession to materialize.  The High Court observed: "It is seen from the pleadings as well in evidence  that the plaintiff came to know about the right of  the defendants’, only when disturbances were  sought to be made to his possession."

In similar circumstances, in the case of Thakur Kishan Singh (dead) v.  Arvind Kumar [(1994) 6 SCC 591] this court held: "As regards adverse possession, it was not  disputed even by the trial court that the appellant  entered into possession over the land in dispute  under a licence from the respondent for purposes of  brick-kiln. The possession thus initially being  permissive, the burden was heavy on the appellant to  establish that it became adverse. A possession of a  co-owner or of a licencee or of an agent or a  permissive possession to become adverse must be  established by cogent and convincing evidence to  show hostile animus and possession adverse to the

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knowledge of real owner. Mere possession for  howsoever length of time does not result in  converting the permissible possession into adverse  possession. Apart from it, the Appellate Court has  gone into detail and after considering the evidence  on record found it as a fact that the possession of the  appellant was not adverse."

The present case is one of the few ones where even an unusually long  undisturbed possession does not go on to prove the intention of the adverse  possessor.  This is a rare circumstance, which Clarke LJ in Lambeth London  Borough Council v Blackburn (2001) 82 P & CR 494, 504 refers to:  "I would not for my part think it appropriate  to strain to hold that a trespasser who had  established factual possession of the property for the  necessary 12 years did not have the animus  possidendi identified in the cases. I express that  view for two reasons. The first is that the  requirement that there be a sufficient manifestation  of the intention provides protection for landowners  and the second is that once it is held that the  trespasser has factual possession it will very often be  the case that he can establish the manifested  intention. Indeed it is difficult to find a case in  which there has been a clear finding of factual  possession in which the claim to adverse possession  has failed for lack of intention."

On intention, The Powell v. Macfarlane (1977) 38 P & CR (Property,  Planning & Compensation Reports) 452 \026 472 is quite illustrative and  categorical, holding in the following terms:  "If the law is to attribute possession of land to a  person who can establish no paper title to  possession, he must be shown to have both factual  possession and the requisite intention to possess  (’animus possidendi’)." \005. If his acts are open to more than one interpretation  and he has not made it perfectly plain to the world at  large by his actions or words that he has intended to  exclude the owner as best he can, the courts will  treat him as not having had the requisite animus  possidendi and consequently as not having  dispossessed the owner.  \005 In my judgment it is consistent with principle as  well as authority that a person who originally  entered another’s land as a trespasser, but later seeks  to show that he has dispossessed the owner, should  be required to adduce compelling evidence that he  had the requisite animus possidendi in any case  where his use of the land was equivocal, in the sense  that it did not necessarily, by itself, betoken an  intention on his part to claim the land as his own and  exclude the true owner.  \005 What is really meant, in my judgment, is that the  animus possidendi involves the intention, in one’s  own name and on one’s own behalf, to exclude the  world at large, including the owner with the paper  title if he be not himself the possessor, so far as is  reasonably practicable and so far as the processes of  the law will allow."

Thus, there must be intention to dispossess. And it needs to be open

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and hostile enough to bring the same to the knowledge and plaintiff has an  opportunity to object. After all adverse possession right is not a substantive  right but a result of the waiving (willful) or omission (negligent or  otherwise) of right to defend or care for the integrity of property on the part  of the paper owner of the land. Adverse possession statutes, like other  statutes of limitation, rest on a public policy that do not promote litigation  and aims at the repose of conditions that the parties have suffered to remain  unquestioned long enough to indicate their acquiescence.  

While dealing with the aspect of intention in the Adverse possession   law, it is important to understand its nuances from varied angles.  

Intention implies knowledge on the part of adverse possessor. The  case of Saroop Singh v. Banto and Others [(2005) 8 SCC 330] in that  context held: "29. In terms of Article 65 the starting point  of limitation does not commence from the date  when the right of ownership arises to the plaintiff  but commences from the date the defendants  possession becomes adverse. (See Vasantiben  Prahladji Nayak v. Somnath Muljibhai Nayak) 30. Animus possidendi is one of the  ingredients of adverse possession. Unless the  person possessing the land has a requisite animus  the period for prescription does not commence. As  in the instant case, the appellant categorically  states that his possession is not adverse as that of  true owner, the logical corollary is that he did not  have the requisite animus. (See Mohd. Mohd. Ali v.  Jagadish Kalita, SCC para 21.)"   A peaceful, open and continuous possession as engraved in the maxim  nec vi, nec clam, nec precario has been noticed by this Court in Karnataka  Board of Wakf v. Government of India and Others [(2004) 10 SCC 779] in  the following terms: "\005Physical fact of exclusive possession and the  animus possidendi to hold as owner in exclusion to  the actual owner are the most important factors  that are to be accounted in cases of this nature.  Plea of adverse possession is not a pure question of  law but a blended one of fact and law. Therefore, a  person who claims adverse possession should  show: ( a) on what date he came into possession,  (b) what was the nature of his possession, (c)  whether the factum of possession was known to  the other party, (d) how long his possession has  continued, and ( e) his possession was open and  undisturbed. A person pleading adverse possession  has no equities in his favour. Since he is trying to  defeat the rights of the true owner, it is for him to  clearly plead and establish all facts necessary to  establish his adverse possession\005"    It is important to appreciate the question of intention as it would have  appeared to the paper-owner. The issue is that intention of the adverse user  gets communicated to the paper owner of the property. This is where the law  gives importance to hostility and openness as pertinent qualities of manner  of possession. It follows that the possession of the adverse possessor must be  hostile enough to give rise to a reasonable notice and opportunity to the  paper owner. In Narne Rama Murthy v. Ravula Somasundaram and Others [(2005)  6 SCC 614], this Court held: "However, in cases where the question of  limitation is a mixed question of fact and law and  the suit does not appear to be barred by limitation

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on the face of it, then the facts necessary to prove  limitation must be pleaded, an issue raised and  then proved. In this case the question of limitation  is intricately linked with the question whether the  agreement to sell was entered into on behalf of all  and whether possession was on behalf of all. It is  also linked with the plea of adverse possession.  Once on facts it has been found that the purchase  was on behalf of all and that the possession was on  behalf of all, then, in the absence of any open,  hostile and overt act, there can be no adverse  possession and the suit would also not be barred by  limitation. The only hostile act which could be  shown was the advertisement issued in 1989. The  suit filed almost immediately thereafter."

The test is, as has been held in the case of R. v. Oxfordshire County  Council and Others, Ex Parte Sunningwell Parish Council [1999] 3 ALL ER  385; [1999] 3 WLR 160: Bright v. Walker (1834) 1 Cr. M. & R. 211, 219,  "openly and in the manner that a person rightfully  entitled would have used it. . ." The presumption  arises, as Fry J. said of prescription generally in  Dalton v. Angus (1881) 6 App.Cas. 740, 773, from  acquiescence.    The case concerned interpretation of section 22(1) of the Commons  Registration Act 1965. Section 22(1) defined "town or village green" as  including  " \005 land \005 on which the inhabitants of any  locality have indulged in [lawful] sports and  pastimes as of right for not less than 20 years."  

It was observed that the inhabitants’ use of the land for sports and  pastimes did not constitute the use "as of right". The belief that they had the  right to do so was found to be lacking. The House held that they did not have  to have a personal belief in their right to use the land. The court observed:  "the words ’as of right’ import the absence of  any of the three characteristics of compulsion,  secrecy or licence\027 ’nec vi, nec clam, nec precario’,  phraseology borrowed from the law of easements."  

Later in the case of Beresford, R (on the application of) v. City of  Sunderland [2003] 3 WLR 1306, [2004] 1 All ER 160 same test was referred  to.  Thus the test of nec vi, nec clam, nec precario i.e., "not by force, nor  stealth, nor the license of the owner" has been an established notion in law  relating to the whole range of similarly situated concepts such as easement,  prescription, public dedication, limitation and adverse possession.   

In Karnataka Wakf Board (Supra), the law was stated, thus:   "In the eye of law, an owner would be deemed to be  in possession of a property so long as there is no  intrusion. Non-use of the property by the owner  even for a long time won’t affect his title. But the  position will be altered when another person takes  possession of the property and asserts a right over it.  Adverse possession is a hostile possession by clearly  asserting hostile title in denial of the title of true  owner. It is a well- settled principle that a party  claiming adverse possession must prove that his  possession is ’nec vi, nec clam, nec precario’, that is,  peaceful, open and continuous. The possession must  be adequate in continuity, in publicity and in extent

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to show that their possession is adverse to the true  owner. It must start with a wrongful disposition of  the rightful owner and be actual, visible, exclusive,  hostile and continued over the statutory period. (See  : S M Karim v. Bibi Sakinal AIR 1964 SC 1254,  Parsinni v. Sukhi   ( 1993 ) 4 SCC 375 and D N  Venkatarayappa v. State of Karnataka (1997) 7 SCC  567.) Physical fact of exclusive possession and the  animus possidendi to hold as owner in exclusion to  the actual owner are the most important factors that  are to be accounted in cases of this nature. Plea of  adverse possession is not a pure question of law but  a blended one of fact and law. Therefore, a person  who claims adverse possession should show (a) on  what date he came into possession, (b) what was the  nature of his possession, (c) whether the factum of  possession was known to the other party, (d) how  long his possession has continued, and (e) his  possession was open and undisturbed. A person  pleading adverse possession has no equities in his  favour. Since he is trying to defeat the rights of true  owner, it is for him to clearly plead and establish all  facts necessary to establish his adverse possession."

2. Inquiry into the particulars of Adverse Possession  Inquiry into the starting point of adverse possession i.e. dates as to  when the paper owner got dispossessed is an important aspect to be  considered. In the instant case the starting point of adverse possession and  Other facts such as the manner in which the possession operationalized,  nature of possession: whether open, continuous, uninterrupted or hostile  possession - have not been disclosed. An observation has been made in this  regard in S.M. Karim v. Mst. Bibi Sakina [AIR 1964 SC 1254]: "Adverse possession must be adequate in  continuity, in publicity and extent and a plea is  required at the least to show when possession  becomes adverse so that the starting point of  limitation against the party affected can be found.  There is no evidence here when possession became  adverse, if it at all did, and a mere suggestion in  the relief clause that there was an uninterrupted  possession for "several 12 years" or that the  plaintiff had acquired "an absolute title" was not  enough to raise such a plea. Long possession is not  necessarily adverse possession and the prayer  clause is not a substitute for a plea." Also mention as to the real owner of the property must be specifically  made in an adverse possession claim. In Karnataka Wakf Board (Supra), it is stated: "Plaintiff, filing a title suit should be very clear  about the origin of title over the property. He must  specifically plead it. In P Periasami v. P  Periathambi ( 1995 ) 6 SCC 523 this Court ruled  that - "Whenever the plea of adverse possession is  projected, inherent in the plea is that someone else  was the owner of the property." The pleas on title  and adverse possession are mutually inconsistent  and the latter does not begin to operate until the  former is renounced. Dealing with Mohan Lal v.  Mirza Abdul Gaffar    ( 1996 ) 1 SCC 639 that is  similar to the case in hand, this Court held:  "As regards the first plea, it is inconsistent with the  second plea. Having come into possession under  the agreement, he must disclaim his right there  under and plead and prove assertion of his  independent hostile adverse possession to the

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knowledge of the transferor or his successor in title  or interest and that the latter had acquiesced to his  illegal possession during the entire period of 12  years, i.e., up to completing the period his title by  prescription nec vi, nec clam, nec precario. Since  the appellant’s claim is founded on Section 53-A, it  goes without saying that he admits by implication  that he came into possession of land lawfully under  the agreement and continued to remain in  possession till date of the suit. Thereby the plea of  adverse possession is not available to the  appellant.""    3.  New Paradigm to Limitation Act  The law in this behalf has undergone a change. In terms of Articles  142 and 144 of the Limitation Act, 1908, the burden of proof was on the  plaintiff to show within 12 years from the date of institution of the suit that  he had title and possession of the land, whereas in terms of Articles 64 and  65 of the Limitation Act, 1963, the legal position has underwent complete  change insofar as the onus is concerned: once a party proves its title, the  onus of proof would be on the other party to prove claims of title by adverse  possession.  The ingredients of adverse possession have succinctly been  stated by this Court in S.M. Karim v. Mst. Bibi Sakina [AIR 1964 SC 1254]  in the following terms:  "\005Adverse possession must be adequate in  continuity, in publicity and extent and a plea is  required at the least to show when possession  becomes adverse so that the starting point of  limitation against the party affected can be  found\005" [See also M. Durai v. Madhu and Others 2007 (2) SCALE 309]  

The aforementioned principle has been reiterated by this Court in  Saroop Singh v. Banto and Others [(2005) 8 SCC 330] stating: "29. In terms of Article 65 the starting point  of limitation does not commence from the date  when the right of ownership arises to the plaintiff  but commences from the date the defendants  possession becomes adverse. (See Vasantiben  Prahladji Nayak v. Somnath Muljibhai Nayak) 30. Animus possidendi is one of the  ingredients of adverse possession. Unless the  person possessing the land has a requisite animus  the period for prescription does not commence. As  in the instant case, the appellant categorically  states that his possession is not adverse as that of  true owner, the logical corollary is that he did not  have the requisite animus. (See Mohd. Mohd. Ali v.  Jagadish Kalita, SCC para 21.)"          In Mohammadbhai Kasambhai Sheikh and Others v. Abdulla  Kasambhai Sheikh [(2004) 13 SCC 385], this Court held:  "\005But as has been held in Mahomedally  Tyebally v. Safiabai the heirs of Mohammedans  (which the parties before us are) succeed to the  estate in specific shares as tenants-in-common and  a suit by an heir for his/her share was governed, as  regards immovable property, by Article 144 of the  Limitation Act, 1908. Article 144 of the Limitation  Act, 1908 has been materially re-enacted as Article  65 of the Limitation Act, 1963 and provides that  the suit for possession of immovable property or  any interest therein based on title must be filed  within a period of 12 years from the date when the  possession of the defendant becomes adverse to

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the plaintiff. Therefore, unless the defendant raises  the defence of adverse possession to a claim for a  share by an heir to ancestral property, he cannot  also raise an issue relating to the limitation of the  plaintiffs claim\005"

The question has been considered at some length recently in T.  Anjanappa and Others v. Somalingappa and Another [(2006) 7 SCC 570],  wherein it was opined : "The High Court has erred in holding that  even if the defendants claim adverse possession,  they do not have to prove who is the true owner  and even if they had believed that the Government  was the true owner and not the plaintiffs, the same  was inconsequential. Obviously, the requirements  of proving adverse possession have not been  established. If the defendants are not sure who is  the true owner the question of their being in hostile  possession and the question of denying title of the  true owner do not arise. Above being the position  the High Court’s judgment is clearly  unsustainable\005"  

[See also Des Raj and Ors. v. Bhagat Ram (Dead) By LRs. and Ors.,   2007 (3) SCALE 371; Govindammal v. R. Perumal Chettiar & Ors., JT 2006  (10) SC 121 : (2006) 11 SCC 600]  

CONTENTIONS OF PARTIES The decision of the Judicial Committee in Debendra Lal Khan (supra),  whereupon reliance has been placed by Mr. Krishnamoorthy, does not  militate against the aforementioned propositions of law.  The question which  arose for consideration therein was as to whether the plaintiff had acquired  right or title to the fisheries by adverse possession in the portion of river  Cossye.  In the aforementioned situation, it was held that the Limitation Act  is indulgent to the Crown in one respect only, namely, in requiring a much  longer period of adverse possession than in the case of a subject; otherwise  there is no discrimination between the Crown and the subject as regards the  requisites of adverse possession.  The said decision is not of much assistance  in this case. In The Dalhousie Institute Society (supra), this Court found as of fact  that the respondents were in open, continuous and uninterrupted possession  and enjoyment of site for over 60 years.  It was in that situation, the title of  the defendant, in that behalf, was accepted.   

RIGHT TO PROPERTY AS HUMAN RIGHT  There is another aspect of the matter, which cannot be lost sight of.   The right of property is now considered to be not only a constitutional or  statutory right but also a human right. Declaration of the Rights of Man and of the Citizen, 1789 enunciates  right to property under Article 17 :       "since the right to property is inviolable and  sacred, no-one may be deprived thereof,  unless  public necessity, legally ascertained, obviously  requires it and just and prior indemnity has  been paid".

 Moreover, Universal Declaration of Human Rights, 1948 under  section 17(i) and 17(ii) also recognizes right to property :

"17 (i) Everyone has the right to own property  alone as well as in association with others.  (ii) No-one shall be arbitrarily deprived of his  property."      

Human rights have been historically considered in the realm of

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individual rights such as, right to health, right to livelihood, right to shelter  and employment etc. but now human rights are gaining a multifaceted  dimension. Right to property is also considered very much a part of the new  dimension. Therefore, even claim of adverse possession has to be read in  that context. The activist approach of the English Courts is quite visible from  the judgement of Beaulane Properties Ltd. v. Palmer  [2005 (3) WLR 554 :  2005 EWHC 817 (Ch.)] and JA Pye (Oxford) Ltd v. United Kingdom [2005]  ECHR 921  [2005] 49 ERG 90, [2005] ECHR 921], The court herein tried to  read the Human Rights position in the context of adverse possession. But  what is commendable is that the dimensions of human rights has widened so  much that now property dispute issues are also being raised within the  contours of human rights.   

With the expanding jurisprudence of the European Court of Human  Rights, the Court has taken an unkind view to the concept of adverse  possession in the recent judgment of J.A. Pye (Oxford) Ltd  v. the United  Kingdom [2005] ECHR 921, which concerned the loss of ownership of land  by virtue of adverse possession.  

In the instant case the applicant company was the registered owner of  a plot of 23 hectares of agricultural land. The owners of a property adjacent  to the land, Mr. and Mrs. Graham ("the Grahams") occupied the land under  a grazing agreement. After a brief exchange of documents in December  1983 a chartered surveyor acting for the applicants wrote to the Grahams  noting that the grazing agreement was about to expire and requiring them to  vacate the land.  In essence, from September 1984 onwards until 1999 the Grahams  continued to use the whole of the disputed land for farming without the  permission of the applicants.

In 1997, Mr Graham moved the Local Land Registry against the  applicant on the ground that he had obtained title by adverse possession. The  applicant companies responded to the motion and importantly also issued  further proceedings seeking possession of the disputed land.

The Grahams challenged the applicant companies’ claims under the  Limitation Act 1980 ("the 1980 Act") which provides that a person cannot  bring an action to recover any land after the expiration of 12 years of  adverse possession by another. They also relied on the Land Registration  Act 1925, which applied at the relevant time and which provided that, after  the expiry of the 12-year period, the registered proprietor was deemed to  hold the land in trust for the squatter.

It is important to quote here the judgment pronounced in favour of the  Grahams ([2000]Ch 676). The court held in favour of the Grahams but went  on to observe the irony in law of adverse possession. According to the court,  law which provides to oust an owner on the basis of inaction of 12 years is  "illogical and disproportionate". The effect of such law would "seem  draconian to the owner" and "a windfall for the squatter". The fact that just  because "the owner had taken no step to evict a squatter for 12 years, the  owner should lose 25 hectares of land to the squatter with no compensation  whatsoever" would be disproportionate.

The applicant companies appealed and the Court of Appeal reversed  the High Court decision. The Grahams then appealed to the House of Lords,  which, allowed their appeal and restored the order of the High Court. In J A  Pye (Oxford) Ltd & Ors v Graham & Anor [2002] 3 All ER 865 House of  Lords observed that the Grahams had possession of the land in the ordinary  sense of the word, and therefore the applicant companies had been  dispossessed of it within the meaning of the 1980 Act. There was no  inconsistency between a squatter being willing to pay the paper owner if  asked and his being in possession in the meantime. It will be pertinent to  note in this regard Lord Bingham (agreeing with Lord Browne-Wilkinson)  in the course of his judgment:  "[The Grahams] sought rights to graze or cut grass on

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the land after the summer of 1984, and were quite  prepared to pay. When Pye failed to respond they did  what any other farmer in their position would have  done: they continued to farm the land. They were not  at fault. But the result of Pye’s inaction was that they  enjoyed the full use of the land without payment for  12 years. As if that were not gain enough, they are  then rewarded by obtaining title to this considerable  area of valuable land without any obligation to  compensate the former owner in any way at all. In the  case of unregistered land, and in the days before  registration became the norm, such a result could no  doubt be justified as avoiding protracted uncertainty  where the title to land lay. But where land is  registered it is difficult to see any justification for a  legal rule which compels such an apparently unjust  result, and even harder to see why the party gaining  title should not be required to pay some compensation  at least to the party losing it. It is reassuring to learn  that the Land Registration Act 2002 has addressed the  risk that a registered owner may lose his title through  inadvertence. But the main provisions of that Act have  not yet been brought into effect, and even if they had  it would not assist Pye, whose title had been lost  before the passing of the Act. While I am satisfied that  the appeal must be allowed for the reasons given by  my noble and learned friend, this is a conclusion  which I (like the judge [Neuberger J]...) ’arrive at with  no enthusiasm’."  

Thereafter the applicants moved the European Commission of Human  Rights (ECHR) alleging that the United Kingdom law on adverse  possession, by which they lost land to a neighbour, operated in violation of  Article 1 of Protocol No. 1 to Convention for the Protection of Human  Rights and Fundamental Freedoms ("the Convention").  It was contended by the applicants that they had been deprived of their  land by the operation of the domestic law on adverse possession which is in  contravention with Article 1 of Protocol No. 1 to Convention for the  Protection of Human Rights and Fundamental Freedoms ("the Convention"),  which reads as under: "Every natural or legal person is entitled to the  peaceful enjoyment of his possessions. No one  shall be deprived of his possessions except in the  public interest and subject to the conditions  provided for by law and by the general principles  of international law. The preceding provisions shall not, however, in  any way impair the right of a State to enforce such  laws as it deems necessary to control the use of  property in accordance with the general interest or  to secure the payment of taxes or other  contributions or penalties."

The European Council of Human Rights importantly laid down three  pronged test to judge the interference of government with the right of  "peaceful enjoyment of property".  While referring to Beyeler v. Italy [GC],  no. 33202/96, ’’ 108-14, ECHR 2000-I, it was held that the "interference"  should comply with the principle of lawfulness pursue a legitimate aim  (public interest) by means reasonably proportionate to the aim sought to be  realized. In fine the court observed: "The question nevertheless remains whether, even  having regard to the lack of care and inadvertence  on the part of the applicants and their advisers, the  deprivation of their title to the registered land and

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the transfer of beneficial ownership to those in  unauthorised possession struck a fair balance with  any legitimate public interest served. In these circumstances, the Court concludes that  the application of the provisions of the 1925 and  1980 Acts to deprive the applicant companies of  their title to the registered land imposed on them  an individual and excessive burden and upset the  fair balance between the demands of the public  interest on the one hand and the applicants’ right to  the peaceful enjoyment of their possessions on the  other.  There has therefore been a violation of Article 1 of  Protocol No. 1."

The question of the application of Article 41 was referred for the  Grand Chamber Hearing of the ECHR. This case sets the field of Adverse  Possession and its interface with the right to peaceful enjoyment in all its  complexity.  

Therefore it will have to be kept in mind the Courts around the world  are taking an unkind view toward statutes of limitation overriding property  rights.  THE PRESENT CASE It is to be borne in mind that the respondent had already purchased 1  acre 21 guntas out of the 5 acres 25 guntas under a duly registered deed  dated 1.9.1933. Appellant bought the entire chunk of 5 acres 23 guntas  subsequent to the respondent’s transaction. The validity of such sale is not  the question in the instant case but the transaction relating to 1 acre 23  Guntas remains an important surrounding circumstance to assess the nature  of appellant’s possession. The question is whether it is a case of mistaken  possession ignoramus of the previous sale or adverse possession having the  mental element in the requisite degree to dispossess. Also much depends on  the answer to the query regarding the starting point of adverse possession:  when can the possession be considered to have become adverse? In the facts  and circumstances of this case, the possession of appellant was effected  through the sale deeds, dated 11.04.1934 and 5.07.1936. Therefore, the  alleged fact of adverse possession bears a pronounced backdrop of 1933 sale  deed passing 1 acre 21 Guntas to the respondent. .  Are we to say that it is a sale with doubtful antecedents (1 acre 23  Guntas) sought to be perfected or completed through adverse possession?   But that aspect of the matter is not under consideration herein. As has  already been mentioned, adverse possession is a right which comes into play  not just because someone loses his right to reclaim the property out of  continuous and willful neglect but also on account of possessor’s positive  intent to dispossess. Therefore it is important to take into account before  stripping somebody of his lawful title, whether there is an adverse possessor  worthy and exhibiting more urgent and genuine desire to dispossess and step  into the shoes of the paper-owner  of the property. This test forms the basis  of decision in the instant case.  The argument for a more intrusive inquiry for adverse possession  must not be taken to be against the law of limitations. Limitation statutes as  statutes of repose have utility and convenience as their purpose.  Nevertheless, there has been change on this front as well which have been  noticed by us heretobefore.  

For the reasons aforementioned, there is no merit in this appeal which  is dismissed accordingly with costs.  Counsel’s fee assessed at Rs. 25,000/-.