A
Bhartiya No. 1
(Querist) 10 February 2010
This query is : Resolved
Respected Members/Experts,
Can any one post or make me available the Judgment of Hon'ble Supreme Court, where it is observed "
LAW OF ADVERSE POSSESSION NEEDS CHANGE.
Where A bench comprising Justices Dalveer Bhandari and Harjit Singh Bedi,had observed this.
Thanks to everyone.
Parveen Kr. Aggarwal
(Expert) 10 February 2010
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
JUDGMENT
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:-
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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
17
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
22
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.
Bhartiya No. 1
(Querist) 11 February 2010
Sir,
My heartiest regards and Thanks to you, for this gesture/reply.
