SHRI UTTAM CHAND (D) THROUGH LRS. versus NATHU RAM (D) THROUGH LRS. & ORS.

SHRI UTTAM CHAND (D) THROUGH LRS.

NATHU RAM (D) THROUGH LRS. & ORS.

(Civil Appeal No. 190 of 2020)

JANUARY 15, 2020

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Adverse Possession:

Suit for possession – Asserting their title by purchase ofproperty through Managing Officer – Alleging defendants beingin unauthorised possession – Trial Court admitted the title butdismissed the suit on the ground of limitation and recognising theright of defendants by adverse possession – Appellate Courtdecreed the suit – In second appeal, High Court on the ground ofadverse possession by defendants dismissed the suit – Appeal toSupreme Court – Held: Plea of adverse possession is alwaysfounded on acceptance of ownership of property in anotherperson – In the instant case, defendants never accepted theownership either of the plaintiff or the Managing Director – Hence,cannot be said to have perfected their right by adverse possession.

Allowing the appeal, the Court

HELD: 1. plea of adverse possession is founded on theacceptance that ownership of the property vests in another,against whom the claimant asserts possession adverse to thetitle of the other. The defendants have not admitted the vestingof the suit property with the Managing Officer and the factumof its transfer in favour of the plaintiff. The defendants havedenied the title not only of the Managing Officer but also of theplaintiff. The plea of the defendants is one of continuouspossession but there is no plea that such possession was hostileto the true owner of the suit property. The evidence of thedefendants is that of continuous possession. Some of the receiptspertain to 1963 but possession since November, 1963 till thefiling of the suit will not ripe into title as the defendants neveradmitted the plaintiff-appellant to be owner or that the land evervested with the Managing Officer. Therefore, the findings

CDE

Arecorded by the High Court that the defendants have perfectedtheir title by adverse possession are not legally sustainable.Consequently, the judgment and decree passed by the HighCourt is set aside and the suit is decreed. [Paras 15 and 16] [10-B-C; 13-B-E]

BM Siddiq (D) through LRs v. Mahant Suresh Das andOrs. (2019) SCC OnLine SC 1440 – followed.

T. Anjanappa and Ors. v. Somalingappa and Anr.(2006) 7 SCC 570 : [2006] 5 Suppl. SCR 200 ;Kurella Naga Druva Vudaya Bhaskara Rao v. GallaCJani Kamma alias Nacharamma (2008) 15 SCC 150:[2008] 11 SCR 849 ; Brijesh Kumar and Anr. v.Shardabai (Dead) by Legal Representatives and Ors.(2019) 9 SCC 369 ; Ravinder Kaur Grewal and Ors.–v. Manjit Kaur and Ors. (2019) 8 SCC 729 relied on.

DKarnataka Board of Wakf v. Government of India &Ors. (2004) 10 SCC 779 : [2004] 1 Suppl. SCR 255 ;Dagadabai (Dead) by Legal Representatives v. Abbas–alias Gulab Rustum Pinjari (2017) 13 SCC 705 referred to.

ECase Law Reference

From the Judgment and Order dated 18.02.2011 of the HighCourt of Delhi at New Delhi in R.S.A. No. 225 of 2003.

Mrs. K. Sarada Devi, R. Vijaynandan Reddy, Advs. for theHAppellants.

Gagan Gupta, Dr. (Mrs.) Vipin Gupta, Advs. for the Respondents.

The Judgment of the Court was delivered by

HEMANT GUPTA, J.

1. Plaintiff is in appeal before this Court aggrieved againstjudgment and decree passed by the High Court of Delhi on 18[th]February, 2011 whereby, the defendants second appeal was allowedand the suit of the plaintiff for possession on the basis of title wasdismissed.

2. The plaintiff filed suit for possession on the basis of purchaseof suit property from the Managing Officer, Department ofRehabilitation, Government of India in public auction held on 21[st]March, 1964. The certificate of sale was issued thereafter on 4[th]January, 1965. The plaintiff filed suit for possession on 17[th] February,1979 alleging the defendants to be in an unauthorised possession of thesuit property and who have refused to vacate the same.

3. The defendants in the written statement denied that the plaintiffis the owner of the property. The defendants asserted that their houseexisted on the property in question for more than the last two centuries.The grandfather of the defendants was said to be in possession of theproperty as owner, thereafter their father one Tara Chand and now allthe defendants are in possession of the property as owners. It wasdenied that the property was ever vested with the Managing Officerand, therefore, it was claimed that the Managing Officer has no authorityor jurisdiction to auction the property in question. Therefore, the plaintiffhas no interest, right or title in the property.

4. Parties went to trial on the following issues:

“1. Whether the suit is properly valued for the purpose ofCourt fee & Jurisdiction?

2. Whether the suit is time barred?

3. Whether the plaintiff is the owner of the property in suit?

4. Whether the defendants become owner by adversepossession of the property in suit?

5. Whether the defendants are in unauthorized occupationof the property in dispute?

6. Relief.”

A5. Before the learned trial court, the plaintiff examined PW-4Chander Bhan, Lower Division Clerk from the Land and BuildingDepartment who has proved that the sale certificate was issued infavour of plaintiff on 15[th] January, 1965. The learned trial court recordedthe finding on the basis of testimonies of Din Dayal Khanna (PW-3),Chander Bhan (PW-4) and S.B. Lal (PW-5) that the property is situatedBin Khasra No. 9 and has been sold through auction. The learned trialcourt also considered the testimonies of Bhagwan Dass (DW-1) andRanjit (DW-2), both sons of the defendant, that the plaintiff is the ownerof the property purchased through Ex.B4/1 in an auction from theManaging Officer, Department of Rehabilitation. Thus, Issue No. 3Cwas held in favour of the plaintiff and the plaintiff was found to beowner of the property. But Issue Nos. 2, 4 and 5 were decided infavour of the defendants and against the plaintiff and consequently thesuit was dismissed but with direction to the plaintiff to make goodthe deficiency of court fee of Rs. 2000/- within one month in view ofthe finding recorded on Issue No. 1.D

6. In the first appeal by the plaintiff, the learned First AppellateCourt affirmed the findings recorded by the trial court on Issue Nos. 1and 3 that the plaintiff is the owner of the property in question.However, in respect of Issue No. 2 as to whether the suit is time barred,the learned First Appellate Court returned finding that the suit is withinEtime as the same was filed on February 17, 1979 i.e. before thecompletion of 12 years. Issue No. 2 was decided against the defendantsholding that the findings recorded by the trial court that the limitationstarts from the date of purchase of the suit property is not sustainable.The right of the respondents over the property was challenged beforethe completion of 12 years, therefore, the suit filed in February, 1979 isFwithin period of limitation. Under issue No. 4, the findings recordedwere that the mere possession of land, however long it may be, wouldnot ripe into possessory title unless the possessor has animuspossidendi to hold the land adverse to the title of the true owner. Theassertion of title must be clear and unequivocal. Consequently, IssueGNo. 5 was also decided against the defendants and the suit stooddecreed.7. In the second appeal, the High Court affirmed the finding ofownership in favour of the plaintiff and relied upon electricity and housetax bills showing the possession of the defendants over the suit propertyHfrom November, 1963. It was, thus, held that the adverse possession

of the defendants over the same matured within 12 years, by November,1995, therefore, the suit filed on 17[th] February, 1979 was barred bylimitation.

8. The High Court referred to the statement of PW-1 UttamChand that the suit property was assessed to house tax but no one hadpaid such tax. He stated that there was only one kachha room of mudat the site but he did not know when the unauthorised construction wasmade in the suit property. The High Court considered the statementof witness of the plaintiff to return finding that Tara Chand, deceasedfather of the defendants was found in possession of the suit propertyin March, 1964. The High Court returned finding that Tara Chandwas in occupation of the suit property even prior to the purchase ofthe same by the plaintiff in the year 1964. The Court referred to thejudgment of this Court reported as T. Anjanappa & Ors. v.Somalingappa & Anr.[1] to hold that the defendants were in open,uninterrupted, peaceful and hostile possession since March, 1964 andthe period of 12 years was completed in March, 1976. Therefore, thesuit filed by the plaintiff on 17[th] February, 1979 was barred by limitation.

9. Learned counsel for the appellant argued that for successfulplea of adverse possession against the true owner, the person inpossession has to admit hostile possession to the knowledge of the trueowner. The defendants in their written statement have not admittedthe title of the appellant and of adverse possession to the knowledgeof the true owner. The defendants have denied vesting of the landwith the Managing Officer and the subsequent sale in favour of theappellant. The trial court has returned finding as to the title of theappellant itself and such finding has not been set aside neither by theFirst Appellate Court nor by the High Court. The defendants areasserting their long and continuous possession but such possessionhowsoever long cannot be termed as adverse possession so as toperfect title within the meaning of Article 65 of the Limitation Act. Itwas argued that long possession is not necessarily adverse possession.Reliance is placed upon Karnataka Board of Wakf v. Governmentof India & Ors.[2], Kurella Naga Druva Vudaya Bhaskara Rao v.Galla Jani Kamma alias Nacharamma[3 ]and Dagadabai (Dead) byLegal Representatives v. Abbas alias Gulab Rustum Pinjari[4].

1 (2006) 7 SCC 570

2 (2004) 10 SCC 779

3 (2008) 15 SCC 150

4 (2017) 13 SCC 705

A10. On the other hand, learned counsel for the defendants arguedthat the witness of the plaintiff has admitted the possession of thedefendants in the year 1964 itself i.e. before the purchase, therefore,the possession is adverse to the knowledge of the appellants.

11. In T. Anjanappa, this Court has set aside the finding of theBHigh Court that the defendants claiming adverse possession do not haveto prove who is the true owner. If the defendants are not sure whothe true owner is, the question of them being in hostile possession aswell as of denying the title of the true owner does not arise. The Courtheld as under:

C“12. The concept of adverse possession contemplates hostilepossession i.e. possession which is expressly or impliedly indenial of the title of the true owner. Possession to be adversemust be possession by person who does not acknowledge theother’s rights but denies them. The principle of law is firmlyestablished that person who bases his title on adverse possessionDmust show by clear and unequivocal evidence that his possessionwas hostile to the real owner and amounted to denial of his titleto the property claimed. For deciding whether the alleged actsof person constituted adverse possession, the animus of theperson doing those acts is the most crucial factor. AdverseEpossession is commenced in wrong and is aimed against right. Aperson is said to hold the property adversely to the real ownerwhen that person in denial of the owner’s right excluded him fromthe enjoyment of his property.

13. Possession to be adverse must be possession by personFwho does not acknowledge the other’s rights but denies them:

“24. It is matter of fundamental principle of law that wherepossession can be referred to lawful title, it will not beconsidered to be adverse. It is on the basis of this principlethat it has been laid down that since the possession of oneGco-owner can be referred to his status as co-owner, it cannotbe considered adverse to other co-owners.” (See Vidya Deviv. Prem Prakash [(1995) 4 SCC 496] , SCC p. 504, para 24.)

14. Adverse possession is that form of possession or occupancyof land which is inconsistent with the title of the rightful ownerHand tends to extinguish that person’s title. Possession is not held

to be adverse if it can be referred to lawful title. The personsetting up adverse possession may have been holding under therightful owner’s title e.g. trustees, guardians, bailiffs or agents.Such persons cannot set up adverse possession:

“14. … Adverse possession means [hostile possession]which is expressly or impliedly in denial of title of the trueowner. Under Article 65 [of the Limitation Act,] burden is onthe defendants to prove affirmatively. person who baseshis title on adverse possession must show by clear andunequivocal evidence i.e. possession was hostile to the realowner and amounted to denial of his title to the propertyclaimed. In deciding whether the acts, alleged by person,constitute adverse possession, regard must be had to theanimus of the person doing those acts which must beascertained 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 adenial of his title to the property claimed. …

15. Where possession can be referred to lawful title, it willnot be considered to be adverse. The reason being that aperson whose possession can be referred to lawful title willnot be permitted to show that his possession was hostile toanother’s title. One who holds possession on behalf of another,does not by mere denial of that other’s title make hispossession adverse so as to give himself the benefit of thestatute of limitation. Therefore, person who enters intopossession having lawful title, cannot divest another of thattitle by pretending that he had no title at all. (See AnnasahebBapusaheb Patil v. Balwant [(1995) 2 SCC 543, p. 554 : AIR1995 SC 895, p. 902] , SCC p. 554, paras 14-15.)”12. In Kurella Naga Druva Vudaya Bhaskara Rao, thepayment of tax receipts and mere possession for some years was foundinsufficient to claim adverse possession. It was held that if accordingto the defendant, the plaintiff was not the true owner, his possessionhostile to the plaintiff’s title will not be sufficient. The Court held asunder:

A“19. The defendant claimed that he had perfected his title byadverse possession by being in open, continuous and hostilepossession of the suit property from 1957. He also producedsome tax receipts showing that he has paid the taxes in regardto the suit land. Some tax receipts also showed that he paid thetax on behalf of someone else. After considering the oral andBdocumentary evidence, both the courts have entered concurrentfinding that the defendant did not establish adverse possession,and that mere possession for some years was not sufficient toclaim adverse possession, unless such possession was hostilepossession, denying the title of the true owner. The courts haveCpointed out that if according to the defendant, the plaintiff wasnot the true owner, his possession hostile to the plaintiff’s titlewill not be sufficient and he had to show that his possession wasalso hostile to the title and possession of the true owner. Afterdetailed analysis of the oral and documentary evidence, the trialcourt and the High Court also held that the appellant was onlyDmanaging the properties on behalf of the plaintiff and hisoccupation was not hostile possession.”

13. In Brijesh Kumar & Anr. v. Shardabai (Dead) by LegalRepresentatives & Ors.[5], the Court held as under:

E“13. Adverse possession is hostile possession by assertion of ahostile title in denial of the title of the true owner as held in M.Venkatesh [M. Venkatesh v. BDA, (2015) 17 SCC 1 : (2017) 5SCC (Civ) 387] . The respondent had failed to establish peaceful,open and continuous possession demonstrating wrongful ousterof the rightful owner. It thus involved question of facts and law.FThe onus lay on the respondent to establish when and how hecame into possession, the nature of his possession, the factumof possession known and hostile to the other parties, continuouspossession over 12 years which was open and undisturbed. Therespondent was seeking to deny the rights of the true owner. TheGonus therefore lay upon the respondent to establish possessionas fact coupled with that it was open, hostile and continuousto the knowledge of the true owner. The respondent-plaintifffailed to discharge the onus. Reference may also be made toChatti Konati Rao v. Palle Venkata Subba Rao [Chatti Konati

H5 (2019) 9 SCC 369

Rao v. Palle Venkata Subba Rao, (2010) 14 SCC 316 : (2012)1 SCC (Civ) 452] , on adverse possession observing as follows:(SCC p. 322, para 15)

“15. Animus possidendi as is well known is requisiteingredient of adverse possession. Mere possession does notripen into possessory title until the possessor holds the propertyadverse to the title of the true owner for the said purpose.The person who claims adverse possession is required toestablish the date on which he came in possession, nature ofpossession, the factum of possession, knowledge to the trueowner, duration of possession and that possession was openand undisturbed. person pleading adverse possession hasno equities in his favour as he is trying to defeat the rights ofthe true owner and, hence, it is for him to clearly plead andestablish all facts necessary to establish adverse possession.The courts always take unkind view towards statutes oflimitation overriding property rights. The plea of adversepossession is not pure question of law but blended one offact and law.””

14. As to whether the plaintiff can claim title on the basis ofadverse possession, this Court in judgment reported as Ravinder KaurGrewal & Ors. v. Manjit Kaur & Ors.[6] has held as under:

“60. The adverse possession requires all the three classicrequirements to co-exist at the same time, namely, nec vi i.e.adequate in continuity, nec clam i.e. adequate in publicity andnec precario i.e. adverse to competitor, in denial of title andhis knowledge. Visible, notorious and peaceful so that if the ownerdoes not take care to know notorious facts, knowledge is attributedto him on the basis that but for due diligence he would haveknown it. Adverse possession cannot be decreed on title whichis not pleaded. Animus possidendi under hostile colour of titleis required. Trespasser’s long possession is not synonymous withadverse possession. Trespasser’s possession is construed to beon behalf of the owner, the casual user does not constituteadverse possession. The owner can take possession from atrespasser at any point in time. Possessor looks after the property,

Aprotects it and in case of agricultural property by and large theconcept is that actual tiller should own the land who works bydint of his hard labour and makes the land cultivable. Thelegislature in various States confers rights based on possession.”

15. The matter has been examined by Constitution Bench inBM Siddiq (D) through LRs v. Mahant Suresh Das & Ors.[7] wherein,it has been held that plea of adverse possession is founded on theacceptance that ownership of the property vests in another, againstwhom the claimant asserts possession adverse to the title of the other.The Court held as under:

C“747. plea of adverse possession is founded on the acceptancethat ownership of the property vests in another against whomthe claimant asserts possession adverse to the title of the other.Possession is adverse in the sense that it is contrary to theacknowledged title in the other person against whom it is claimed.Evidently, therefore, the plaintiffs in Suit 4 ought to be cognisantDof the fact that any claim of adverse possession against theHindus or the temple would amount to an acceptance of titlein the latter. Dr Dhavan has submitted that this plea is subsidiaryor alternate plea upon which it is not necessary for the plaintiffsto stand in the event that their main plea on title is held to beEestablished on evidence. It becomes then necessary to assessas to whether the claim of adverse possession has beenestablished.

748. person who sets up plea of adverse possession mustestablish both possession which is peaceful, open and continuousF- possession which meets the requirement of being ‘nec vi necclaim and nec precario’. To substantiate plea of adversepossession, the character of the possession must be adequate incontinuity and in the public because the possession has to be tothe knowledge of the true owner in order for it to be adverse.These requirements have to be duly established first by adequateGpleadings and second by leading sufficient evidence. Evidence,it is well settled, can only be adduced with reference to matterswhich are pleaded in civil suit and in the absence of anadequate pleading, evidence by itself cannot supply the deficiency

of pleaded case. Reading paragraph 11(a), it becomes evidentthat beyond stating that the Muslims have been in long exclusiveand continuous possession beginning from the time when theMosque was built and until it was desecrated, no factual basishas been furnished. This is not merely matter of details orevidence. plea of adverse possession seeks to defeat the rightsof the true owner and the law is not readily accepting of such acase unless clear and cogent basis has been made out in thepleadings and established in the evidence.

xxxxxx

752. In Supdt. and Remembrance of Legal Affairs, WestBengal v. Anil Kumar Bhunja, (1979) 4 SCC 274, Justice R SSarkaria, speaking for three judge Bench of this Court notedthat the concept of possession is “polymorphous. embodying botha right (the right to enjoy) and fact (the real intention). Thelearned judge held:

“13. “It is impossible to work out completely logical andprecise definition of “possession” uniformly applicable to allsituations in the contexts of all statutes. Dias and Hughes intheir book on Jurisprudence say that if topic ever sufferedfrom too much theorising it is that of “possession”. Much ofthis difficulty and confusion is (as pointed out in Salmond’sJurisprudence, 12th Edn., 1966) caused by the fact thatpossession is not purely legal concept. “Possession”, impliesa right and fact; the right to enjoy annexed to the right ofproperty and the fact of the real intention. It involves powerof control and intent to control. (See Dias and Hughes,ibid.).”

These observations were made in the context of possession inSection 29(b) of the Arms Act 1959.

In P Lakshmi Reddy v. L Lakshmi Reddy, 1957 SCR 195, JusticeJagannadhadas, speaking for three judge Bench of this Courtdwelt on the “classical requirement” of adverse possession:

“4. Now, the ordinary classical requirement of adversepossession is that it should be nec vi nec clam nec precario.(See Secretary of State for India v. Debendra Lal Khan[(1933) LR 61 IA 78, 82] ). The possession required must be

adequate in continuity, in publicity and in extent to show thatit is possession adverse to the competitor.”

The court cited the following extract from U N Mitra’s “TagoreLaw Lectures on the Law of Limitation and Prescription”:

“7…An adverse holding is an actual and exclusiveappropriation of land commenced and continued under claimof right, either under an openly avowed claim, or under aconstructive claim (arising from the acts and circumstancesattending the appropriation), to hold the land against him (sic)who was in possession. (Angell, Sections 390 and 398). It isthe intention to claim adversely accompanied by such aninvasion of the rights of the opposite party as gives him acause of action which constitutes adverse possession.” (6thEdition, Vol. I, Lecture VI, at page 159)

This Court held:

“7…Consonant with this principle the commencement ofadverse possession, in favour of person implies that theperson is in actual possession, at the time, with notorioushostile claim of exclusive title, to repel which, the true ownerwould then be in position to maintain an action. It wouldfollow that whatever may be the animus or intention of aperson wanting to acquire title by adverse possession hisadverse possession cannot commence until he obtains actualpossession with the requisite animus.”

In Karnataka Board of Wakf v. Government of India, (2004)10 SCC 779, Justice S Rajendra Babu, speaking for two judgeBench held that:

“11…Physical fact of exclusive possession and the animuspossidendi to hold as owner in exclusion to the actual ownerare the most important factors that are to be accounted incases of this nature. Plea of adverse possession is not purequestion of law but blended one of fact and law. Therefore,a person who claims adverse possession should show: (a) onwhat date he came into possession, (b) what was the natureof his possession, (c) whether the factum of possession wasknown to the other party, (d) how long his possession hascontinued, and (e) his possession was open and undisturbed.”

The ingredients must be set up in the pleadings and proved inevidence. There can be no proof sans pleadings and pleadingswithout evidence will not establish case in law.

In Annakili v. Vedanayagam, (2007) 14 SCC 308, this Courtemphasized that mere possession of land would not ripen into apossessory title. The possessor must have animus possidendi andhold the land adverse to the title of the true owner. Moreover,he must continue in that capacity for the period prescribed underthe Limitation Act.”

16. In the present case, the defendants have not admitted thevesting of the suit property with the Managing Officer and the factumof its transfer in favour of the plaintiff. The defendants have deniedthe title not only of the Managing Officer but also of the plaintiff. Theplea of the defendants is one of continuous possession but there is noplea that such possession was hostile to the true owner of the suitproperty. The evidence of the defendants is that of continuouspossession. Some of the receipts pertain to 1963 but possession sinceNovember, 1963 till the filing of the suit will not ripe into title as thedefendants never admitted the plaintiff-appellant to be owner or thatthe land ever vested with the Managing Officer. In view of thejudgments referred to above, we find that the findings recorded by theHigh Court that the defendants have perfected their title by adversepossession are not legally sustainable. Consequently, the judgment anddecree passed by the High Court is set aside and the suit is decreed.The appeal is allowed.

Kalpana K. Tripathy

Appeal allowed.