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CASE NO.: Appeal (civil)  3594 of 2006

PETITIONER: T. Anjanappa and Ors

RESPONDENT: Somalingappa and Anr

DATE OF JUDGMENT: 22/08/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of SLP (C) Nos. 24307-24308 of 2004)

ARIJIT PASAYAT, J

       Leave granted.

       Challenge in these appeals is to the correctness of the  judgment rendered by a learned Single Judge of the Karnataka  High Court allowing in part two Second Appeals filed by the  respondents in the present appeals.  

Background facts in a nutshell are as under:

       Two appeals were filed before the High Court against the  judgment and decree passed by Civil Judge, Senior Division,  Bellary in RA No.15/94 and RA No.16/94 arising out of  O.S.No.168/85 and O.S.No.286/88 respectively on the file of  Principal Munsiff, Bellary. O.S.No.168/85 was filed by the  appellants.  They filed a suit for declaration of title in respect  of the suit schedule property described as a house site  measuring 25’ x 75’ pictorially described in the rough sketch  accompanying the plaint and which form part of CTS  No.373/3A/1A/2/B in Block No.XXIV, Ward No.XXII,  Devinagar, Bellary City. The plaintiffs claimed title to the  property by virtue of entries in the Municipality records. The  suit site was originally granted by Municipality to one  Thippanna in the year 1962 from whom one Siddalinagana  Gouda purchased in the year 1971 under registered sale deed.  One Narasimhappa purchased the suit property from  Siddalingana Gouda by a registered sale deed in the year  1978.  The plaintiffs purchased the suit site from  Narasimhappa under Ex.P.1 on 29.5.1985, two days after  filing of the suit. It is said that the erstwhile owner  Narasimhappa had mortgaged the property in favour of  plaintiff. According to plaintiffs, the defendants had  encroached upon a portion of the suit property to an extent of  15’ x 25’, put a hutment about three years prior to the suit,  and therefore, on the strength of title the plaintiff sought for   the relief of declaration of title and possession and also sought  for  injunction against the defendant not to repair or put up  any permanent structure on the suit site. The defendants filed  the written statement denying the title of the plaintiff  contending that the defendants are in possession of the  premises since the year 1969 by putting up hutment and

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paying tax to the municipality. The defendants also contended  that the property is a government land and they are in adverse  possession of the property. A defence was also taken that the  area has been declared as a slum area. Hence, they prayed for  dismissal of the suit.  

       During the pendency of O.S. No.168/85, the defendant  No.1 therein filed a suit in O.S. No.286/88. The plaint  averments are reproduction of the written statement in  O.S.No.168/85.  

       The trial Court dismissed the suit of T. Anjanappa, T.  Sekharam and T. Govind (plaintiffs in O.S. NO.168/85) by  rejecting claim of plaintiffs’ title to the property.  The suit filed  by T. Somalingappa i.e. O.S.No.286/88 came to be allowed.  Present appellants filed two appeals against the judgment and  decree in O.S.No.168/85 and O.S.No.286/88 before the Civil  Judge, Senior Division, Bellary. In appeal, the appellate court  set aside the judgment and decree of the trial Court in  O.S.No.168/85 and O.S.No.286/88, upheld the title of the  plaintiffs and also granted relief of possession and thus  allowed both the appeals filed by the plaintiffs. Second Appeals  were filed challenging correctness thereof by T. Somalingappa  and Dakshyanamma.            The following substantial questions of law were  formulated at the time of admission :

1.      Though the appellate Court has  concurred with the findings of the Principal  Munsiff regarding the appellant’s possession  and enjoyment of the property even before the  purchase of the property by the respondent,  whether the appellate court was justified in  dismissing the suit of the appellants for  injunction which was decreed by the Principal  Munsiff.

2.      The suit schedule property which was  declared by the Government as a slum area,  the action of the Municipality in granting  allotment of the same in favour of the other  persons. Whether the Municipality has got the  power to allow the site, which was declared as  a slum area by the government in favour of  other persons.

The following additional substantial questions of law  were framed at the time of hearing:

(1)     Whether the appellate Court was right in  declaring title of the plaintiffs on the  basis of Ex.P.1 which came to be  executed after filing of the suit in  O.S.No.168/85?

(2)     Whether the appellate court committed  error in appreciating the oral and  documentary evidence regarding the plea  of adverse possession put forth by the  defendants and the findings thereon are  perverse and contrary to evidence on  record?

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According to the High Court, ticklish situation arose in  the legal combat between the parties. When the suit  O.S.No.168/85 was filed, obviously the plaintiffs had no title  to the property, but they sought for declaration of title. In the  absence of title, there was no basis for the plaintiffs to seek  possession from the defendants. It was contended that the  plaintiffs had taken the property as a security in a mortgage  transaction from the erstwhile owner. High Court noted that  the mortgage deed is not produced. It was observed that there  is nothing on record to show that it was a possessory  mortgage. Unless the plaintiffs had some kind of title or  possessory interest they could not have sought for relief for  possession.      

       According to the High Court though the defendants were  in possession under the mistaken assumption of title with  themselves or with the Government, same cannot be a ground  to hold that the possession is not a hostile possession from the  standpoint of the real owner.  It was further held that the real  owner when dispossessed under Article 64 of the Indian  Limitation Act, 1963  (in short the ’Limitation Act’) has to seek  possession within 12 years from the date of dispossession. It  was therefore held that the findings of the court below i.e. first  appellate Court that the defendants had failed to prove the  plea of adverse possession is perverse and contrary to law and  evidence on record. After holding so, it was further held that  though the documents produced by the defendants do not  fully establish the case of adverse possession to the full extent  of 15’ x 75’, yet the stand of the defendants about actual  physical possession read with the admission of the plaintiffs  sufficiently establish that the defendants were in adverse  possession of 15’ x 75’. It was further held that even  otherwise, the suit for possession to that extent was not filed  within 12 years of dispossession and therefore grant of decree  for declaration of the title and possession to that extent in  favour of plaintiffs (appellants herein) is bad in law and liable  to be set aside.  

       Learned counsel for the appellants submitted that the  High Court’s approach is clearly unsustainable in law. The  concept of adverse possession has been clearly misunderstood  by the High Court.  

       Learned counsel for the respondents on the other hand  submitted that in view of the accepted position that the  defendants were in possession for more than 12 years and  that actual physical possession was with them the High Court  cannot be faulted.  

       The concept of adverse possession contemplates a hostile  possession i.e. a possession which is expressly or impliedly in  denial of the title of the true owner. Possession to be adverse  must be possession by a person who does not acknowledge the  other’s rights but denies them. The principle of law is firmly  established that a person who bases his title on adverse  possession must show by clear and unequivocal evidence that  his possession was hostile to the real owner and amounted to  denial of his title to the property claimed. For deciding whether  the alleged acts of a person constituted adverse possession,  the animus of the person doing those acts is the most crucial  factor. Adverse possession is commenced in wrong and is  aimed against right. A person is said to hold the property  adversely to the real owner when that person in denial of the  owner’s right excluded him from the enjoyment of his property.

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       Possession to be adverse must be possession by a person  who does not acknowledge the other’s rights but denies them.  It is a matter of fundamental principle of law that where  possession can be referred to a lawful title, it will not be  considered to be adverse. It is on the basis of this principle  that it has been laid down that since the possession of one co- owner can be referred to his status as co-owner, it cannot be  considered adverse to other co-owner. (See Vidya Devi v. Prem  Prakash and Ors. (1995 (4) SCC 496).

Adverse possession is that form of possession or  occupancy of land which is inconsistent with the title of the  rightful owner and tends to extinguish that person’s title.  Possession is not held to he adverse if it can be referred to a  lawful title. The person setting up adverse possession may  have been holding under the rightful Owner’s title e.g.  trustees, guardians, bailiffs or agents. Such persons cannot  set up adverse possession.

"Adverse possession" means a hostile possession which is  expressly or impliedly in denial of title of the true owner.  Under Article 65 of the Limitation Act, burden is on the  defendants to prove affirmatively. A person who bases his title  on adverse possession must show by clear and unequivocal  evidence i.e. possession was hostile to the real owner and  amounted to a denial of his title to the property claimed. In  deciding whether the acts, alleged by a person, constitute  adverse possession, regard must be had to the animus of the  person doing those acts which must be ascertained from the  facts and circumstances of each case. The person who bases  his title on adverse possession, therefore, must show by clear  and unequivocal evidence i.e. possession was hostile to the  real owner and amounted to a denial of his title to the property  claimed. (See Annasaheb v. B.B. Patil (AIR 1995 SC 895 at  902).

Where possession could be referred to a lawful title, it will  not be considered to be adverse. The reason being that a  person whose possession can be referred to a lawful title will  not be permitted to show that his possession was hostile to  another’s title. One who holds possession on behalf of another  does not by mere denial of that other’s title make his  possession adverse so as to give himself the benefit of the  statute of limitation. Therefore, a person who enters into  possession having a lawful title, cannot divest another of that  title by pretending that he had no title at all.

An occupation of reality is inconsistent with the right of  the true owner. Where a person possesses property in a  manner in which he is not entitled to possess it, and without  anything to show that he possesses it otherwise than an owner  (that is, with the intention of excluding all persons from it,  including the rightful owner), he is in adverse possession of it.  Thus, if A is in possession of a field of B’s, he is in adverse  possession of it unless there is something to show that his  possession is consistent with a recognition of B’s title. (See  Ward v. Carttar (1866) LR 1 Eq.29). Adverse possession is of  two kinds, according as it was adverse from the beginning, or  has become so subsequently. Thus, if a mere trespasser takes  possession of A’s property, and retains it against him, his  possession is adverse ab initio. But if A grants a lease of land  to B, or B obtains possession of the land as A’s bailiff, or  guardian, or trustee, his possession can only become adverse  by some change in his position. Adverse possession not only

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entitled the adverse possessor, like every other possessor, to  be protected in his possession against all who cannot show a  better title, but also, if the adverse possessor remains in  possession for a certain period of time produces the effect  either of barring the right of the true owner, and thus  converting the possessor into the owner, or of depriving the  true owner of his right of action to recover his property and  this although the true owner is ignorant of the adverse  possessor being in occupation. (See Rains v. Buxion (1880 (14)  Ch D 537).  

Adverse possession is that form of possession or  occupancy of land which is inconsistent with the title of any  person to whom the land rightfully belongs and tends to  extinguish that person’s title, which provides that no person  shall make an entry or distress, or bring an action to recover  any land or rent, but within twelve years next after the time  when the right first accrued, and does away with the doctrine  of adverse possession, except in the cases provided for by  Section 15. Possession is not held to be adverse if it can be  referred to a lawful title.

According to Pollock, "In common speech a man is said to  be in possession of anything of which he has the apparent  control or from the use of which he has the apparent powers of  excluding others".   It is the basic principle of law of adverse possession that  (a) it is the temporary and abnormal separation of the property  from the title of it when a man holds property innocently  against all the world but wrongfully against the true owner; (b)  it is possession inconsistent with the title of the true owner.  

       In Halsbury’s 1953 Edition, Volume-I it has been stated  as follows:

 "At the determination of the statutory period  limited to any person for making an entry or  bringing an action, the right or title of such  person to the land, rent or advowson, for the  recovery of which such entry or action might  have been made or brought within such period  is extinguished and such title cannot  afterwards be reviewed either by re-entry or by  subsequent acknowledgement. The operation  of the statute is merely negative, it  extinguished the right and title of the  dispossessed owner and leaves the occupant  with a title gained by the fact of possession  and resting on the infirmity of the right of the  others to eject him"   

       It is well recognized proposition in law that mere  possession however long does not necessarily means that it is  adverse to the true owner. Adverse possession really means  the hostile possession which is expressly or impliedly in denial  of title of the true owner and in order to constitute adverse  possession the possession proved must be adequate in  continuity, in publicity and in extent so as to show that it is  adverse to the true owner. The classical requirements of  acquisition of title by adverse possession are that such  possession in denial of the true owner’s title must be peaceful,  open and continuous. The possession must be open and  hostile enough to be capable of being known by the parties

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interested in the property, though it is not necessary that  there should be evidence of the adverse possessor actually  informing the real owner of the former’s hostile action.  

       The High Court has erred in holding that even if the  defendants claim adverse possession, they do not have to  prove who is the true owner and even if they had believed that  the Government was the true owner and not the plaintiffs, the  same was inconsequential. Obviously, the requirements of  proving adverse possession have not been established. If the  defendants are not sure who is the true owner the question of  their being in hostile possession and the question of denying  title of the true owner do not arise. Above being the position  the High Court’s judgment is clearly unsustainable. Therefore,  the appeal which relates to OS 168/85 is allowed by setting  aside the impugned judgment of the High Court to that extent.  Equally, the High Court has proceeded on the basis that the  plaintiff in OS.286/88 had established his plea of possession.  The factual position does not appear to have been analysed by  the High Court in the proper perspective. When the High Court  was upsetting the findings recorded by the court below i.e.  first appellate Court it would have been proper for the High  Court to analyse the factual position in detail which has not  been done.  No reason has been indicated to show as to why it  was differing from the factual findings recorded by it. The first  appellate Court had categorically found that the appellants in  the present appeals had proved possession three years prior to  filing of the suit. This finding has not been upset. Therefore,  the High Court was not justified in setting aside the first  appellate Court’s order. The appeal before this Court relating  to O.S. 286 of 1988 also deserves to be allowed. Therefore,  both the appeals are allowed but without any order as to  costs.  

       The appeals are disposed of accordingly.