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Bhartiya No. 1 (Nationalist)     10 February 2010

Law On Adverse Possession

Respected Members,

Can any one post or make me available the Judgement 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



Learning

 2 Replies

Parveen Kr. Aggarwal (Advocate)     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:-
                                                             2

 

     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.
                                                               3

     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
                                                           4

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
                                                           5

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
                                                               6

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."
                                                             7

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
                                                                 8

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."
                                                               9

 

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
                                                               10

      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.
                                                                  11

            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
                                                                12

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
      prescripttion 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)"
                                                              13

 


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.
                                                            14

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);
                                                             15

    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
                                                            16

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
                                                             18

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
                                                                19

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:
                                                                       20

 

             "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
                                                              21

      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
                                                                    23

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)
                                                   24

 


                      .................................J.
                         (Harjit Singh Bedi)
New Delhi
September 23, 2008.

2 Like

Bhartiya No. 1 (Nationalist)     11 February 2010

Sir, Thanks for this judgement.


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