REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1196 OF 2007

Hemaji Waghaji Jat ..Appellant

Versus

Bhikhabhai Khengarbhai Harijan & Others .. Respondents

J U D G M E N T

Dalveer Bhandari, J.

1. This  appeal  is  directed  against  the  judgment  dated

27.12.2004  passed  by  the  High  Court  of  Gujarat  at

Ahmedabad in Second Appeal No. 146 of 2004.

2. Brief facts of the case which are necessary to dispose of

this appeal are as under:-

The  appellant  who  has  lost  both  before  the  Court  of

learned  District  Judge,  Palanpur  and  the  High  Court  has

approached this Court by way of special leave petition under

Article 136 of the Constitution.

3. The  appellant  (who  was  the  plaintiff  before  the  trial

court) filed a suit for declaration of permanent injunction with

the following prayer:

“1) To  hold  and declare  that  the  plaintiff  is  the lawful  owner  and  occupier  in  respect  of  land  of survey  No.  66/3  admeasuring  6  Acre  11 Guntha situated  in  the  boundaries  of  village  Yavarpura, Taluka Deesa.

2) That the defendants of this case themselves or their  agents,  servants,  family  members  do  not cause or to be caused hindrance in the possession and occupation of the plaintiff in respect of land of survey No. 66/3 admeasuring 7 Acre 10 Guntha in the  boundaries  of  village  Yavarpura  and  also  to grant permanent stay order to the effect that they not forcibly enter into the said land of survey No. 66/3 against the defendants and in favour of the plaintiff of this case.

3) To grant any other relief which is deemed fit and proper.

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4) To award the  entire  cost  of  this  suit  on the defendants.”

The trial court framed the following issues:

“1. Whether the plaintiff has proved that he is the lawful owner of the disputed land?

2. Whether  the  plaintiff  is  entitled  for permanent injunction as prayed for?

3. What order and decree?”

The  trial  court  held  that  in  the  year  1925  the  land  was

purchased  for  Rs.75/-  from  Gama  Bhai  Gala  Bhai  by  the

appellant and he is having possession of the same for the last

70 years.  The learned trial court in the same judgment has

also held that in 1960 the appellant forcibly took possession

of  the  land  in  question  and  he  has  been  in  continuous

possession till 1986, which is proved from the register of right

of cultivation.  Thus, the appellant became owner of the suit

property by adverse possession.

4. It may be significant to note that neither the appellant

ever pleaded adverse possession nor an issue was framed by

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the trial court with regard to the ownership of the respondents

by adverse possession.  According to the appellant, there is no

basis for the finding of the ownership of the appellant on the

basis of adverse possession.    

5. The respondents being aggrieved by the said judgment of

the trial court dated 5.4.1986 preferred an appeal before the

learned  District  Judge,  Palanpur,  Gujarat.   The  learned

District Judge, after hearing the counsel for the parties and

perusing the entire record of the case,  came to the definite

conclusion that the appellant herein has failed to prove that

the land in question was purchased by him.   

6. The learned District Judge referred to in the case of  B.

N. Venkatarayapa v. State of Karnataka [(1998) 2 CLJ 414

S.C.] wherein it was held that in absence of crucial pleadings

regarding adverse possession and evidence to show that the

petitioners  have  been  in  continuous  and  uninterrupted

possession of the lands in question claiming right, title and

interest of the original grantee, the petitioners cannot claim

that they have perfected their title by adverse possession.  The

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burden of proof lies on the petitioners to show that they have

title to and have been in possession and he was dispossessed

and  discontinued  his  possession  within  12  years  from  the

date  of  filing his  suit.    Adverse  possession  implies  that  it

commenced in wrong and is maintained against right.    

7. The learned District Judge further held as under:

“Thus,  learned  trial  Judge  has  wrongly concluded  that  plaintiff  has  proved  his  title  and ownership of this suit land through Revenue record and  also  by  adverse  possession  and  competent authority i.e. Special Secretary has also dismissed the  revision  application  of  plaintiff  and  the defendants’  ownership  was  confirmed  by  the Special Secretary and thus, the learned trial Judge has erred in holding that plaintiff  is a owner and holding  that  the  title  and  also  become  owner through  adverse  possession.   Thus,  this  appeal deserves to be allowed and in these circumstances and discussion as  above,  it  appears  that  learned trial  Judge  has committed  error  in  decreeing  the suit in favour of plaintiff.”

8. The  appellant  aggrieved  by  the  said  judgment  of  the

learned District Judge preferred an appeal under section 100

of the Code of Civil Procedure before the High Court.  In the

impugned judgment, it has been held that the appellate court

continues to be the final court on facts and law. The second

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appeal to the High Court lies only when there is substantial

question of law.  The High Court relied on Santosh Hazari v.

Purushottam Tiwari (Dead) By LRs. AIR 2001 SC 565.  The

relevant portion of the said judgment reads as under:

“The first appellate Court  continues, as before,  to be  the  final  court  of  facts;  pure  findings  of  fact remain  immune  from  challenge  before  the  High Court  in Second Appeal.   Now the first  appellate Court is also a final court of law in the sense that its decision on a question of law even if erroneous may  not  be  vulnerable  before  the  High  Court  in Second Appeal because the jurisdiction of the High Court has now ceased to be available to correct the error of law or the erroneous findings of  the first appellate  Court  even  on  questions  of  law  unless such question of law be a substantial one.”

9. The  High  Court  held  that  the  respondents  clearly

established  their  title  over  the  suit  property.   The  relevant

portion of the judgment of the High Court reads as under:

“The  learned  first  appellate  Judge  has  also discussed  the  relevant  entries  as  well  as  order passed by Deputy Collector, Collector and Special Secretary in those proceedings and on the basis of the  same,  the  learned  first  appellate  Judge  has reached to the finding that the plaintiff has failed to establish title over the suit property.”

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The appeal filed by the appellant was dismissed by the High

Court.

10. We have heard learned counsel for the parties at length

and perused the impugned judgment and judgments of the

subordinate  courts.   The first appellate  court and the High

Court  have  clearly  held  that  the  appellant  has  failed  to

establish his title over the suit property.  The appellant also

failed to establish that he has perfected his title over the suit

property by way of adverse possession.

11. We  deem  it  appropriate  to  deal  with  some  important

cases decided by this court regarding the principle of adverse

possession.  

12. In Secretary of State for India v. Debendra Lal Khan

AIR 1934 PC 23, it was observed that the ordinary classical

requirement of adverse possession is that it should be nec vi,

nec clam, nec precario and the possession required must be

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adequate in continuity, in publicity and in extent to show that

it is possession adverse to the competitor.   

13. This Court in P. Lakshmi Reddy v. L. Lakshmi Reddy

AIR 1957 SC 314, while following the ratio of  Debendra Lal

Khan’s case (supra), observed as under:

“But it is well settled that in order to establish adverse  possession  of  non-co-heir  as  against another it is not enough to show that one out of them is  in  sole  possession  and enjoyment  of  the profits,  of  the  properties.   Ouster  of  the  non- possessing co-heir by the co-heir in possession who claims  his  possession  to  be  adverse,  should  be made  out.   The  possession  of  one  co-heir  is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be one the basis of joint title.  The co-heir in possession cannot render his possession adverse to the other co-heir, not in possession, merely by any secret hostile animus on his  own  part  in  derogation  of  the  other  co-heirs’ title.  It is a settled rule of law that as between co- heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to be knowledge of the other so as to constitute ouster.”

The court further observed thus:

“The burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession.”

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14. In S.M.  Karim v. Bibi  Sakina  AIR  1964  SC  1254,

Hidayatullah, J. speaking for the court observed as under:-

“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.”

15. The facts of  R. Chandevarappa & Others v.  State of

Karnataka & Others (1995) 6 SCC 309 are similar to the

case at hand.  In this case, this court observed as under:-

“The  question  then  is  whether  the  appellant  has perfected his title by adverse possession. It is seen that a contention was raised before  the Assistant Commissioner that the appellant having remained in possession from 1968, he perfected his title by adverse  possession.  But  the  crucial  facts  to constitute  adverse  possession  have  not  been pleaded.  Admittedly  the  appellant  came  into possession  by  a  derivative  title  from the  original grantee. It is seen that the original grantee has no right to alienate the land. Therefore,  having come into possession under colour of title from original grantee,  if  the appellant intends to plead adverse possession as against the State, he must disclaim

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his  title  and  plead  his  hostile  claim  to  the knowledge of the State and that the State had not taken  any  action  thereon  within  the  prescribed period.  Thereby,  the appellant’s  possession would become  adverse.  No  such  stand  was  taken  nor evidence  has  been  adduced  in  this  behalf.  The counsel in fairness, despite his research, is unable to bring to our notice any such plea having been taken by the appellant.”

16. In  D.  N.  Venkatarayappa  and  Another v.  State  of

Karnataka  and  Others (1997)  7  SCC  567  this  court

observed as under:-

“Therefore,  in  the  absence  of  crucial  pleadings, which constitute adverse possession and evidence to  show  that  the  petitioners  have  been  in continuous  and  uninterrupted  possession  of  the lands in question claiming right, title and interest in the lands in question hostile  to  the right,  title and interest of the original grantees, the petitioners cannot claim that they have perfected their title by adverse possession.”

17. In  Md.  Mohammad Ali  (Dead)  By LRs. v.  Jagadish

Kalita & Others (2004) 1 SCC 271, paras 21-22, this Court

observed as under:

“21. For  the  purpose  of  proving  adverse possession/ouster, the defendant must also prove animus possidendi.

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22. ….We  may  further  observe  that  in  a proper  case  the  court  may  have  to  construe  the entire pleadings so as to come to a conclusion as to whether the proper plea of adverse possession has been raised in the written statement or not which can also be gathered from the cumulative effect of the averments made therein.”

18. In Karnataka Board of Wakf v. Govt. of India (2004)

10 SCC 779 at para 11, this court observed as under:-

“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”, 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.”  

The court further observed that 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

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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.  

19. In Saroop Singh v. Banto (2005) 8 SCC 330 this Court

observed:

“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  defendant’s possession  becomes  adverse.  (See  Vasantiben Prahladji Nayak v.  Somnath Muljibhai Nayak (2004) 3 SCC 376)

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  Md. Mohammad Ali (Dead) by LRs. v. Jagdish Kalita and Others (2004) 1 SCC 271)”

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20. This principle has been reiterated later in the case of  M.

Durai v. Muthu and Others (2007) 3 SCC 114 para 7.  This

Court observed as under:

“…In terms of Articles 142 and 144 of the old Limitation Act, the plaintiff was bound to prove his title  as  also  possession  within  twelve  years preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his  title,  the  burden  shifts  to  the  defendant  to establish that he has perfected his title by adverse possession.”

21. This court had an occasion to examine the concept of

adverse  possession  in  T.  Anjanappa  &  Others  v.

Somalingappa & Another [(2006)  7  SCC 570].  The  court

observed  that  a  person  who  bases  his  title  on  adverse

possession must show by clear and unequivocal evidence that

his title was hostile to the real owner and amounted to denial

of  his  title  to  the  property  claimed.    The  court  further

observed that the classical requirements of acquisition of title

by adverse possession are that such possession in denial of

the true owner’s title must be peaceful, open and continuous.

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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.

22. In  a  relatively  recent  case  in  P.  T.  Munichikkanna

Reddy & Others  v. Revamma & Others (2007) 6 SCC 59]

this court again had an occasion to deal with the concept of

adverse  possession in detail.   The  court  also  examined the

legal position in various countries particularly in English and

American  system.   We  deem  it  appropriate  to  reproduce

relevant passages in extenso.  The court dealing with adverse

possession in paras 5 and 6 observed as under:-

“5. Adverse possession in one sense 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  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);

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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).]  

6.  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.”

23. There is another aspect of the matter, which needs to be

carefully comprehended.  According to Revamma’s case, the

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right  of  property  is  now  considered  to  be  not  only  a

constitutional or statutory right but also a human right.   In

the said case, this Court observed that “Human rights have

been historically considered in the realm of 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 judgments of Beaulane Properties Ltd. v. Palmer (2005)

3 WLR 554 and  JA Pye (Oxford)  Ltd. v.  United Kingdom

(2005) 49 ERG 90.  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 have

widened so much that now property dispute issues are also

being raised within the contours of human rights.”

24. With the expanding jurisprudence of the European Court

of Human Rights, the Court has taken an unkind view to the

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concept of adverse possession in the recent judgment of  JA

Pye  (Oxford)  Ltd. v.  United  Kingdom (supra) which

concerned the loss of ownership of land by virtue of adverse

possession.

25. In  the  said  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.”

26. The Grahams continued to use the whole of the disputed

land for farming without the permission of the applicants from

September 1998 till 1999.    In 1997, Mr. Graham moved the

Local Land Registry against the applicant on the ground that

he  had  obtained  title  by  adverse  possession.  The  Grahams

challenged  the  applicant  company’s  claims  under  the

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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.  

27. The  judgment  was  pronounced  in  favour  of  JA  Pye

(Oxford) Ltd. v.  Graham 2000 Ch. 676 : (2000) 3 WLR 242.

The  Court  held  in  favour  of  the  Grahams  but  went  on  to

observe the irony in law of adverse possession.   The Court

observed that the 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”.  

28. The court expressed its astonishment on the prevalent

law ousting an owner for not taking action within limitation is

illogical.   

29. The applicant company aggrieved by the said judgment

filed  an appeal  and the  Court  of  Appeal  reversed  the  High

Court decision. The Grahams then appealed to the House of

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Lords, which, allowed their appeal and restored the order of

the High Court.   

30. The House of Lords in JA Pye (Oxford) Ltd. v. Graham

(2003) 1 AC 419 observed that the Grahams had possession

of the land in the ordinary sense of the word, and, therefore,

the applicant company had been dispossessed of it within the

meaning of the Limitation Act  of 1980.  

31. We deem it proper to reproduce the relevant portion of

the judgment in Revamma’s case (supra):

“51. 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 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”).   

52. 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 1 to the Convention for the Protection of Human  Rights  and  Fundamental  Freedoms  (“the Convention”), which reads as under:

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“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.”

This Court in  Revamma’s case (supra) also mentioned that

the European Council of Human Rights importantly laid down

three-pronged  test  to  judge  the  interference  of  the

Government  with  the  right  of  “peaceful  enjoyment  of

property”.  

53. In  Beyeler v.  Italy [GC]  No.33202  of 1996  § § 108-14 ECHR 2000-I, it was held that the “interference”  should  comply with the principle  of lawfulness  and  pursue  a  legitimate  aim  (public interest) by means reasonably proportionate to the aim sought to be realised.

The Court observed:

“54. The  question  nevertheless  remains whether, even having regard to the lack of care and

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inadvertence on the part of the applicants and their advisers,  the  deprivation  of  their  title  to  the registered  land  and  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 1.”

55. 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.

56. Therefore it will have to be kept in mind the courts  around  the  world  are  taking  an  unkind  view towards statutes of limitation overriding property rights.”

32. Reverting  to  the  facts  of  this  case,  admittedly,  the

appellants  at  no  stage  had  set  up  the  case  of  adverse

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possession,  there  was no pleading  to  that  effect,  no issues

were framed, but even then the trial court decreed the suit on

the ground of adverse possession.  The trial court judgment

being erroneous and unsustainable was set aside by the first

appellate court.  Both the first appellate court and the High

Court have categorically held that the appellant has miserably

failed to establish title to the suit land, therefore,  he is not

entitled to the ownership.  We endorse the findings of the first

appellate court upheld by the High court.

33. Consequently,  the appeal  being devoid  of  any merit  is

accordingly  dismissed  with  costs,  which  is  quantified  at

Rs.25,000/-.  

34. Before parting with this case, we deem it appropriate to

observe  that  the  law of  adverse  possession which ousts  an

owner on the basis of inaction within limitation is irrational,

illogical and wholly disproportionate.  The law as it exists is

extremely  harsh  for  the  true  owner  and  a  windfall  for  a

dishonest  person who had illegally  taken possession of  the

property  of  the true owner.  The  law ought not  to benefit  a

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person who in a clandestine manner takes possession of the

property  of  the  owner  in  contravention  of  law.   This  in

substance would mean that the law gives seal of approval to

the illegal action or activities of a rank trespasser or who had

wrongfully taken possession of the property of the true owner.

35. We  fail  to  comprehend  why  the  law  should  place

premium on dishonesty by legitimizing possession of a rank

trespasser and compelling the owner to loose its possession

only  because  of  his  inaction in taking back the possession

within limitation.

36. In our considered view, there is an urgent need of fresh

look regarding the law on adverse possession.  We recommend

the Union of India  to seriously consider  and make suitable

changes in the law of  adverse  possession.    A copy of  this

judgment  be  sent  to  the  Secretary,  Ministry  of  Law  and

Justice, Department of Legal Affairs, Government of India for

taking appropriate steps in accordance with law.

….………………………..J. (Dalveer Bhandari)

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……………………………J. (Harjit Singh Bedi)

New Delhi September 23, 2008.

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