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 defendant Nos. 1 and 2 were brother and sister of the  

second  plaintiff.   Both  the  defendants  died  during  the  

pendency of the suit. The heirs and legal representatives of the  

first  defendant  were  substituted  in  his  place  and they  had  

contested the suit.  

2. Plaintiff filed the suit for recovery of possession in respect  

of several properties mentioned in schedule of the plaint and  

in  the  present  appeal  we  are  concerned  with  Schedule  –  I  

property  i.e.  four acres  of  land pertaining to R.S.  No.  44/3  

situate at village Vijjeswaram, hereinafter  referred to as the  

land in dispute.   

3. According  to  the  plaintiffs  their  predecessor-in-interest  

viz., one Venkata Ramana Rao, who happened to be the father  

of plaintiff No. 1 and husband of plaintiff No. 2, was the owner  

of land in dispute.  Venkata Ramana Rao was a Government  

employee and in his absence defendant No. 1 i.e. elder brother  

of  second  plaintiff  used  to  look  after  his  property.   Said  

Venkata Ramana Rao died in the year 1948 and thereafter the  

plaintiffs came back to the village and started looking after the  

agricultural land including the land in dispute.  Plaintiff’s case  

further  is  that  again  in  the  year  1954  they  shifted  their  

residence to Kakinada for education of the first plaintiff and  

defendant No. 1 was asked to look after the land in dispute.  

In  the  year  1974  when  the  defendant  declined  to  deliver  

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possession  of  the  land in  dispute,  lawyer’s  notice  dated 6th  

April, 1974 was issued calling upon the defendants to hand  

over the property.  Defendant No. 1 responded to the notice by  

his  letter  dated  27th May,  1974  denying  the  title  of  the  

plaintiffs and claiming himself to be the owner of the property.  

Plaintiffs thereafter filed the suit bearing O.S. No. 20 of 1974  

in the Court of the Subordinate Judge, West Godavari District,  

Kovvur for recovery of possession in respect of land in dispute  

and for mesne profit.

4. In the written statement filed by defendant No. 1 his plea  

was that he purchased the land in dispute under a stamped  

agreement  from  Venkata  Ramana  Rao  for  a  value  of  

Rs.1600/-.  According to him he paid Rs.1,000/- to Venkata  

Ramana  Rao  and  a  sum  of  Rs.225/-  to  one  Bombothu  

Chitteyya who was the tenant and in possession of the land in  

dispute  during  1943  and said  tenant  vide  letter  dated  16th  

June, 1943 relinquished his possession and delivered the land  

to defendant No. 1.  It is further case of defendant No. 1 that  

balance amount of Rs.400/- was sent by Money Order.  After  

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the  death  of  Venkata  Ramana  Rao,   the  second  plaintiff  

claimed more money towards the sale of the land in dispute  

and  plaintiff  No.  2  being  the  sister  of  defendant  No.  1,  a  

further sum of Rs.500/- was paid to her vide receipt dated 14th  

January, 1952 (Exh.B-4).

5. Plea of defendant No. 1 further is that on 6th November,  

1960 he filed an application before the Assistant Settlement  

Officer for correction of rough patta issued in favour of second  

plaintiff  in 1959 and to substitute  his name along with his  

brother’s name in place of second plaintiff.  In the application  

defendant  No.  1  categorically  stated  that  on  18th February,  

1954 the Settlement Officer directed issuance of patta of the  

land in dispute along with other lands in their favour and he  

was all through waiting for the issuance of patta.  However,  

according  to  defendant No.  1,  in  August,  1959 he came to  

know  that  a  rough  patta  was  issued  to  second  plaintiff  

contrary  to  the  decision  of  the  Settlement  Officer  and  

thereafter he filed an application on 7th November, 1959 before  

the  Rough  Patta  Correction  Officer  informing  him  about  

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variance  between  grant  and  the  order  and  prayed  that  the  

name of the second plaintiff be deleted from the patta and in  

her  place  his  name  and  that  of  his  brother’s  name  be  

substituted.  According to defendant No. 1 he filed reminder  

on 6th November, 1960 but it was returned by the Assistant  

Settlement  Officer  on  22nd November,  1960  with  certain  

objections.  Thereafter the first defendant did not present the  

petition for substituting his name in the patta by deleting the  

name  of  the  second  plaintiff.   Further  plea  of  the  first  

defendant  was  that  he  had  perfected  his  title  by  adverse  

possession.

6. On the basis of the pleadings of the parties the trial court  

framed various issues; including the following issues :  

“1. Whether the father of the 1st plaintiff  late  Venkata  Ramana  Rao  died  possessed  of  the  plaint schedule properties?

2.Whether  any  of  the  suit  properties  were  entrusted to any of the defendants in or about  the year 1952?

3.Whether  sale  of  item  I  of  the  schedule  property to 1st defendant in 1943 is true?”

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7. It  is  relevant  here  to  state  that  no  issue  of  adverse  

possession was framed but on the basis of the materials on  

record the trial court came to the conclusion that title to the  

plaintiffs  even  if  proved,  gets  extinguished  by  adverse  

possession.   It  further  held  that  defendant  No.  1  is  in  

possession  of  the  suit  property  and when considered along  

with other  documents,  the  same proves his  title.   The trial  

court also observed that the plaintiff having not adduced any  

oral evidence or filed any document to show that the property  

was entrusted to defendant No. 1 for management, it is evident  

that defendant No. 1 has title over the land in dispute.  The  

trial court further held that defendant No. 1 had purchased  

the  land  in  dispute  and  on  these  findings  the  trial  court  

dismissed the suit.

8. Plaintiffs,  aggrieved by the judgment and decree of  the  

trial  court,  preferred appeal  before  the  High Court  and the  

learned  Single  Judge  by  his  judgment  and  decree  dated  

16.09.1987  dismissed  the  appeal.   Plaintiffs  thereafter  

preferred  Letters  Patent  Appeal  No.  438  of  1988  and  the  

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Division Bench of the High Court by its judgment and decree  

dated 19.12.2001 allowed the appeal; set aside the judgment  

and decree of the trial court as well as of the appellate court  

and decreed the suit.  While doing so the High Court observed  

as follows :   

“From  the  documentary  evidence  available  on  record, it cannot be said that the first defendant has  perfected  his  title  to  the  property  by  adverse  possession.  On the other hand, he tried to change  his version from time to time to suit his convenience  i.e.,  firstly,  in the written statement he contended  that  he  had  purchased  the  property  from  late  Venkata Ramana Rao and produced two letters said  to  have  been  written  by  Venkata  Ramana  Rao,  whose writing is not at all tallying, and we have no  manner  of  doubt  that  these  letters  were  brought  into existence by the first defendant in support of  his  case.   Secondly,  the  first  defendant  filed  an  application  in  year  1964  before  the  Settlement  Officer contending that himself and his brothers are  Agraharamdars  and  are  entitled  to  patta  under  section 15 of the Estates Abolition Act, but he never  disclosed that he had purchased the land from his  brother-in-law.  Though he obtained an order from  Assistant  Settlement  Officer  in  the  year  1964,  no  patta was issued to DI till the trial of the suit on the  other hand even as per his version rough patta was  issued in the name of 2nd plaintiff, but he has not  taken any steps to get it cancelled.  Now, he started  contending  that  he  perfected  title  by  adverse  possession.  As he himself admitted that initially his  possession is permissive one as he was not paying  any rents and enjoying the property to himself  to  exclusion  of  the  land  owners,  he  cannot  contend  

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that he perfected title by adverse possession; more  so in the light of Exs. B-5 and B-9 wherein both the  parties are fighting for patta after abolition of the  estate.  In order to establish that the first defendant  had perfected his  title  to  the  property  by adverse  possession, it requires more cogent proof, which is  not forthcoming in this case.  On the other hand, if  we analyse the documentary evidence available on  record, the only conclusion we can arrive at is that  taking advantage of the near relationship between  him and the plaintiffs and their absence from the  village, the first defendant tried to create documents  to knock away the property.  We have not discussed  the  oral  evidence  for  the  simple  reason  that  the  documentary evidence itself speaks of the falsehood  of the claim of defendants.”

9. Heirs  and  legal  representatives  of  defendant  No.  1,  

aggrieved by the same, have preferred this appeal with leave of  

the Court.

10. Mr. Ananga Bhattacharya, learned counsel appearing on  

behalf of the appellants submits 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.  We do not find any substance in the submission of  

Mr. Bhattacharya.  In fact, while setting aside the judgment  

and  decree  of  the  trial  court  and  the  appellate  court  the  

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Division Bench referred to the decision of  this Court  in the  

case of Asha Devi v. Dukhi Sao [AIR 1974 SC 2048: (1974) 2  

SCC 492], and came to the conclusion that the “power of the  

Division Bench hearing a Letters Patent appeal under Clause  

(10) from the judgment of a single Judge in first appeal is not  

limited only to a question of law under Section 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.”  We are of the opinion that the  

High  Court  was  absolutely  right  in  making  the  aforesaid  

observation and accordingly we reject this submission of Mr.  

Bhattacharya.   

11. Mr. Bhattacharya, then submits 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 appeal.  Mr. Abid Ali Beeran, learned  

counsel  appearing  on  behalf  of  the  respondent,  however,  

submits that the finding recorded by the trial court and the  

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appellate court being absolutely illegal, nothing prevented the  

Division Bench of the High Court to set aside that finding.  

12. We have  bestowed our  thoughtful  consideration  to  the  

submission advanced and we do not find any substance in the  

submission of Mr. Bhattacharya. What is adverse possession,  

on whom the burden of proof lie, the approach of the court  

towards  such  plea  etc.  have  been  the  subject  matter  of  

decision  in  a  large  number  of  cases.   In  the  case  of  T.  

Anjanappa v.  Somalingappa (2006)  7 SCC 570,  it  has been  

held that mere possession however long does not necessarily  

mean that it  is adverse to the true owner and the classical  

requirement  of  acquisition  of  title  by  adverse  possession  is  

that such possessions are in denial of the true owner’s title.  

Relevant passage of the aforesaid judgment reads as follows :   

“20. It  is  well-recognised  proposition  in  law  that  mere possession however long does not necessarily  mean that it is adverse to the true owner. Adverse  possession  really  means  the  hostile  possession  which is expressly or impliedly in denial of title of  the true owner and in order to constitute adverse  possession the possession proved must be adequate  in  continuity,  in  publicity  and in  extent  so  as  to  show  that  it  is  adverse  to  the  true  owner.  The  classical  requirements  of  acquisition  of  title  by  adverse  possession  are  that  such  possession  in  

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denial  of  the  true  owner’s  title  must  be  peaceful,  open and continuous. The possession must be open  and hostile enough to be capable of being known by  the parties interested in the property, though it is  not necessary that there should be evidence of the  adverse possessor actually informing the real owner  of the former’s hostile action.”

13. What facts are required to prove adverse possession have  

succinctly  been  enunciated  by  this  Court  in  the  case  of  

Karnataka Board of  Wakf   vs.  Government of  India  and  

Ors. (2004) 10 SCC 779.  It has also been observed that a  

person  pleading  adverse  possession  has  no  equities  in  his  

favour and since such a person is trying to defeat the rights of  

the  true  owner,  it  is  for  him to  clearly  plead and establish  

necessary  facts  to  establish  his  adverse  possession.  

Paragraph  11  of  the  judgment  which  is  relevant  for  the  

purpose reads as follows :

“11. In  the  eye  of  the  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 the 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”,  

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that  is,  peaceful,  open  and  continuous.  The  possession  must  be  adequate  in  continuity,  in  publicity  and  in  extent  to  show  that  their  possession  is  adverse  to  the  true  owner.  It  must  start  with  a  wrongful  disposition  of  the  rightful  owner and be actual, visible, exclusive, hostile and  continued over the statutory period. (See S.M. Karim  v. Bibi Sakina 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  the true  owner, it is for him to clearly plead and establish all  facts necessary to establish his adverse possession.  [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma  (1996) 8 SCC 128]”

14. In  view  of  the  several  authorities  of  this  Court,  few  

whereof have been referred above, what can safely be said that  

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  

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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  the  plaintiff  proves  his  title,  the  

burden  shifts  on  the  defendant  to  establish  that  he  has  

perfected his title by adverse possession.  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 as is well  known 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 possession was open and  

undisturbed.  A person pleading adverse possession has no  

equities in his favour as he is trying to defeat the rights of the  

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true  owner  and,  hence,  it  is  for  him  to  clearly  plead  and  

establish 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.   

15. Bearing  in  mind  the  principles  aforesaid  when  we  

proceed  to  consider  the  facts  of  this  case,  we  find  that  

appellants  have  miserably  failed  to  prove  that  they  have  

perfected  their  title  by  adverse  possession.   It  is  worth  

mentioning here that initial plea of the appellant was that they  

had  purchased  the  property  from  the  original  owner,  

alternatively  by  virtue  of  agreement  to  sale  they  came  in  

possession of the property.  Both these pleas have not been  

substantiated.  Neither the purported sale deed nor agreement  

to  sale  have  been placed on record.  As regards the  plea  of  

adverse  possession,  appellants’  case  is  that  out  of  the  

consideration money of Rs.1,600/-, Rs.1,000/- was paid to the  

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real  owner  and  on  payment  of  Rs.  225/-  to  the  tenant  in  

possession namely  Bombothu Chitteyya, 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.  

Appellants  are  required  to  prove  that  their  possession  was  

adverse to the true owner.  The plea of the appellants on the  

basis of the purported order dated 18th February, 1954 of the  

Settlement  Officer  directing  for  issuance  of  Patta  in  their  

favour  also  does  not  advance  their  case.   It  is  not  the  

appellant’s  case  that  plaintiffs  were  party  before  the  

Settlement Officer.  Further, it is not in dispute that no Patta  

was issued in favour of the appellants and in fact rough Patta  

was  issued  in  favour  of  the  second  plaintiff.   Thus,  the  

appellants  have  not  proved  the  necessary  ingredients  to  

establish their title by adverse possession.  In our opinion, the  

Division Bench is absolutely right in rejecting the appellants’  

plea of adverse possession and decreeing the plaintiff’s suit,  

after setting aside the judgment and decree of the trial and the  

appellate Court.

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16. In the result, we do not find any merit in the appeal and  

it  is  dismissed  with  cost  throughout  to  be  paid  by  the  

appellants  to  the  respondent.   Lawyers  fee  quantified  at  

Rs.25,000/-.

…….………………………………….J.                              ( HARJIT SINGH BEDI )

                                         ………..……………………………….J.                                    (CHANDRAMAULI KR. PRASAD) NEW DELHI, DECEMBER 7, 2010.

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