advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Monday, March 14, 2016

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 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.The principle of adverse possession and its consequences wherever attracted has been recognized in the statute dealing with limitation.The law of Prescription prescribes the period at the expiry of which not only the judicial remedy is barred but a substantive right is acquired or extinguished. A prescription, by which a right is acquired, is called an 'acquisitive prescription'. A prescription by which a right is extinguished is called 'extinctive prescription'. The distinction between the two is not of much practical importance or substance. The extinction of right of one party is often the mode of acquiring it by another. The right extinguished is virtually transferred to the person who claims it by prescription. Prescription implies with the thing prescribed for is the property of another and that it is enjoyed adversely to that other. In this respect it must be distinguished from acquisition by mere occupation as in the case of res nullius. The acquisition in such cases does not depend upon occupation for any particular length of time.”; herself admitted that the officials of the BDA had come to the suit property on April 24, 2001 and demolished the existing structure. This act of the BDA would amply demonstrate that there was no unhindered, peaceful and continuous possession of the suit land.; the respondent should not be dispossessed or fair compensation which is not raised or pleaded would not be the relevant, once it is found that the respondent has not been able to prove title by adverse possession, no such aspects, not coming within the scope of the suit proceedings, can be looked into

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 2238 OF 2016


|BANGALORE DEVELOPMENT AUTHORITY              |.....APPELLANT(S)          |
|VERSUS                                       |                           |
|N. JAYAMMA                                   |.....RESPONDENT(S)         |

                               J U D G M E N T


A.K. SIKRI, J.
                 The instant appeal, which has travelled to this Court,  had
its origin in a suit filed by the respondent in  the  Court  of  City  Civil
Judge, Bangalore.  The said suit was filed  by  the  respondent  herein  for
declaration of title to the suit property situated in Sy. No. 76/1.  It  was
claimed by the respondent that she had purchased the property  on  June  22,
1994 ad-measuring East to West –  60  ft.  and  North  to  South  –  50  ft.
(hereinafter referred to as the 'suit property')  from  its  previous  owner
and had constructed a building  thereupon.   The  aforesaid  suit  property,
which was part of Sy. No. 76/1 comprising 4  acres  31  guntas  (hereinafter
referred to  as  the  'scheduled  property'),  was  acquired  by  the  State
Government for Bangalore  Development  Authority  –  appellant  herein  (for
short, 'the BDA'), for which  Notification  under  Section  4  of  the  Land
Acquisition Act, 1894 (for short, 'the Act')  was  issued  on  December  15,
1984 followed by a declaration under Section 6 of the  Act  on  October  29,
1986.  Purportedly, possession thereof was handed over to the BDA on  August
30, 1988 vide Mahazar (Exhibit D-4).  However, it appears  that  the  actual
possession of the suit property remained with the original  owner  who  then
sold it to the respondent in the year 1994, as stated above.  It is on  this
basis that the respondent filed the suit on  the  ground  that  she  was  in
possession of the said property for  more  than  12  years  even  after  the
acquisition thereof by the State Government and, in  this  manner,  she  had
perfected her title by adverse possession.  Thus, the relief claimed in  the
suit was for declaration that the respondent had become the owner thereof.

The appellant contested the said suit by raising the  plea  that  since  the
scheduled property had been acquired by the Government for formation of  the
layout and with effect from the  date  of  final  notification  entire  land
vested with the Government, the respondent was precluded from  claiming  the
possession thereof on the ground that it was already with her.  It was  also
contended that the Government had handed over the possession of the land  in
question to the BDA on August 30, 1988  and  BDA  was  in  legal  possession
thereof.  It was also submitted that once Notification under  Section  4  of
the Act was issued on December 15, 1984 and even declaration  under  Section
6 was issued on October 29, 1986, it was not permissible  for  the  original
owner to sell the acquired land to the respondent herein on June  22,  1994.
It was also contended that as the land vested with the  Government,  in  any
case, the limitation under Article 112 of the Limitation Act,  1963  was  30
years and not 12 years  and,  therefore,  the  respondent  could  not  claim
adverse possession before the expiry of 30 years.

The trial court, on  the  basis  of  the  pleadings,  framed  the  following
issues:
“(1)  Whether the plaintiff proves that she and her  predecessors  in  title
have been in continuous  possession  and  enjoyment  of  the  suit  schedule
property since more than 12 years, adverse to the interest of the  defendant
as pleaded in the plaint?

(2)  Whether the plaintiff proves that she had perfected her  title  to  the
suit schedule property by way  of  adverse  possession  as  pleaded  in  the
plaint?

(3)  Whether the plaintiff proves that the defendant and his  officials  are
unlawfully interfering with her possession of the suit schedule property  as
alleged in the plaint?

(4)  Whether the plaintiff proves that she is entitled for  the  declaration
of title to the suit schedule property as sought for in the suit?

(5)  Whether the plaintiff proves that she is also entitled  for  the  grant
of permanent injunction against the defendant as ought for in the suit?”

Evidence was led and arguments heard, which resulted in passing of  judgment
and decree dated  April  07,  2006  by  the  Additional  City  Civil  Judge,
Bangalore.  All the issues were decided in favour of the respondent  herein,
on the basis of which suit was decreed in her favour declaring that  she  is
the owner in possession of the suit property having perfected her  title  by
way  of  adverse  possession.   As  a  consequence,  decree   of   permanent
injunction was also passed restraining the appellant –  BDA,  its  officials
and agents, etc. from alienating the suit property either by way  of  lease,
public auction or by allotting the same in favour  of  any  third  party  or
from interfering with the peaceful possession  and  enjoyment  of  the  said
property by the respondent.  This judgment and decree was  appealed  against
by the appellant before the High Court by filing Regular  First  Appeal  No.
1279 of 2006.  The High Court has,  vide  impugned  judgment,  affirmed  the
decree passed by the trial  court  thereby  dismissing  the  appeal  of  the
appellant.

Attacking the judgment and decree passed by the trial court and affirmed  by
the High Court, learned counsel for the appellant submitted that even if  it
is presumed that limitation period for claiming  adverse  possession  is  12
years, in the instant case, that ingredient has not been  satisfied  by  the
respondent even on the basis of admitted facts.   In  this  behalf,  it  was
argued that as per the respondent's own showing, she had purchased the  area
of 60 ft. x 50 ft. out of the acquired land on June 22,  1994.   She,  thus,
came into possession in the year 1994.  He further pointed out that  in  the
plaint itself, the respondent had  averred  that  there  was  some  existing
construction and she had applied for regularisation  of  the  said  existing
construction on July 25, 1994.  Further, in  para  10  of  the  plaint,  the
respondent admitted that the officials of the  appellant  had  come  to  the
suit, properly accompanied by Police  force,  and  demolished  the  existing
construction.  He drew our attention  to  the  following  averments  in  the
plaint to the aforesaid effect:
“In spite of the above stated facts, the BDA and its officials  without  any
kind of notice and with the help of  a  large  contingent  of  police  force
accompanied by the officials and workmen  including  the  Commissioner,  BDA
and all of a sudden they have illegally trespassed over  the  suit  schedule
property on 24.04.2001 and interfered  over  the  same  and  demolished  the
existing  construction  buildings  as  well  as  her  business  therein   on
24.04.2001  with  the  aid  of  bulldozers   and   such   other   machinery,
equipments....”

It was, thus, argued that after purchase of the land on June 22,  1994,  the
respondent  remained  in  possession  for  barely  7  years  when  she   was
dispossessed, even as per the respondent's own showing and  the  suit  filed
on August 06, 2001 claiming adverse possession on the ground  that  she  was
in possession for 12 years, was incompetent.  It was further submitted  that
as per the aforesaid pleadings in the plaint, it was clear that on the  date
of filing the suit, the respondent was not in possession nor was  there  any
structure on the suit land and the question of claiming adverse  possession,
thus, did not arise.

Learned counsel also argued that in order to lay claim of ownership  on  the
basis of  adverse  possession,  it  has  to  be  proved  that  such  adverse
possession is open and uninterrupted to  the  enjoyment  of  the  defendant-
Authority for more than 12 years, which essential requirement had  not  been
satisfied.  For this proposition, the learned counsel placed heavy  reliance
upon  a  recent  judgment  of  this  Court  in  M.  Venkatesh  &   Ors.   v.
Commissioner, Bangalore Development Authority.[1]


We may note at this stage that in arriving at a finding that the  respondent
was in possession of suit property for more than 12 years, the courts  below
have calculated the period from August 30, 1988, namely, the date  on  which
possession was taken under a Mahazar (Exhibit D-4) by the  State  Government
and handed over to the BDA.  Learned counsel for the BDA  pleaded  that  the
aforesaid  approach  of  the  courts  below  was  wholly  erroneous  as  the
respondent, as per her own showing, came to possess the suit  property  only
after the purchase thereof on June 22, 1994.  He  also  submitted  that,  in
any case, sale in favour of the respondent in the  year  1994  was  void  ab
initio as the title had already been vested in  the  BDA  and  the  original
owner who had purportedly sold the property to the respondent was no  longer
owner thereof and had no right to sell the  same.   Learned  counsel  argued
that even this aspect is squarely covered by the aforesaid judgment  in  the
case of M. Venkatesh (supra).  Learned counsel also pointed out  that  after
the structure was demolished in the year 2001 by the  BDA,  as  admitted  by
the respondent herself, the site in question was auctioned by the  appellant
on August 06, 2001 and sale deed was duly executed, which was proved  before
the trial court as Exhibit P-26.

Per  contra,  learned  counsel  for  the  respondent  submitted   that   the
respondent had led sufficient evidence to establish that  she  had  been  in
continuous possession, which remained uninterrupted, and  on  the  basis  of
this evidence a categorical finding was arrived at by  the  trial  court  to
the effect that the respondent has perfected her title  in  respect  of  the
suit property by way of adverse possession.  This submission was  elaborated
by arguing that even when the schedule  property  was  acquired  by  issuing
requisite notifications and passing of the award,  possession  of  the  suit
property was never taken by the BDA, which continued to be in possession  of
the vendor, from whom the respondent purchased the property vide  sale  deed
dated June 22, 1994, and thereafter she  had  been  in  possession  of  this
property.  It was submitted that these were findings of facts arrived at  on
the  basis  of  evidence  produced  on  record  which  do  not  warrant  any
interference.  It was  also  submitted  that  Mahazar  (Exhibit  D-4)  dated
October 13, 1988 was only a paper possession and no  actual  possession  had
been taken, which also stood proved not only by  the  evidence  led  by  the
respondent, but even  from  the  statements  of  DW-1  and  DW-2,  who  were
examined on behalf of the BDA.  Learned counsel  further  pointed  out  that
there was not even an iota of evidence adduced on behalf  of  the  BDA  that
the possession of the suit  property  was  taken  on  the  date  of  Mahazar
(Exhibit D-4) or subsequently thereafter.

Insofar as claim of continuous, uninterrupted and peaceful possession for  a
period of more than 12 years is concerned, it  was  the  submission  of  the
learned counsel for the respondent that possession of the  respondent  shall
not be counted from the date of the sale deed, i.e. June 22,  1994,  in  her
favour, but the earlier period during which the  vendor  was  in  possession
also needs to be counted and the courts below were right  in  computing  the
period of 12 years from the date of Mahazar (Exhibit D-4) dated October  13,
1988.  A fervent plea was made that if the impugned  judgment  is  reversed,
the respondent and the members of her family will be deprived of their  only
shelter,  which  would  amount  to  taking  away  their  right  to  property
guaranteed to them under Article 300A of the Constitution of India.   It  is
stated that there was a fully developed structure (house) (Exhibits P-22  to
P-25) on the suit property and the building was constructed after  obtaining
permission and licence from Agara Gram Panchayat and  regularly  taxes  were
paid with respect to the suit property and Khatha also stands in  favour  of
the respondent.  It was submitted that at no point  of  time  the  BDA  took
possession of the property in question from the vendor  or  the  respondent.
It was also argued that the BDA being a statutory authority created for  the
purpose of formation of layouts and allotment of sites  to  the  members  of
the pubic, even in equity it was not proper, just or  fair  to  deprive  the
respondent of her only source of shelter.  The very objective of the BDA  is
to provide shelter to the members of public.   The  counsel,  thus,  pleaded
that this Court should not exercise its extraordinary  power  under  Article
136 of the Constitution even if  the  judgment  impugned  suffers  from  any
error if the said judgment will not bring about any unjust result.

Another submission of the learned counsel for the respondent  was  that  the
very purpose for which the land was acquired was to  prepare  a  scheme  for
allotment of the houses to the members of the public.  As per Section 27  of
the Bangalore Development Authority Act, 1976,  such  a  scheme  had  to  be
prepared within five years from the passage of the award, but  the  BDA  had
failed to do so resulting in the  lapsing  of  the  scheme.   This  was  yet
another reason, according to the respondent, for not  interfering  with  the
decree passed in favour of the respondent.

Tracing the history of the  present  litigation,  learned  counsel  for  the
respondent referred to the judgment of the Karnataka High Court in  John  B.
James & Ors. v. Bangalore Development Authority &  Anr.[2]   Delivering  the
judgment in that case, in a batch of writ petitions which were filed by  the
respondent  and  several  others,  the   High   Court,   after   elaborately
considering the rival contentions of the  parties,  had  directed  the  writ
petitioners, including the respondent herein to approach the civil court  to
establish their claim that they  had  perfected  their  title  to  the  suit
property by adverse possession, as  is  clear  from  the  following  passage
therefrom:
“85.  Where the petitioners claim that they are in  settled  possession  for
more than 12 years after the land had vested in BDA, it is open to  them  to
approach the Civil Court for a declaration of title by establishing  adverse
possession for more than 12 years.”

Learned counsel for the respondent joined issue qua  the  arguments  of  the
appellant predicated on the judgment of this  Court  in  M.  Venkatesh  case
with the submission that the said judgment had absolutely no application  to
the facts of the present case as the said case relates to the  vacant  house
site and construction of building after dispossession,  which  was  not  the
position in the instant case.   On  the  other  hand,  he  referred  to  the
following judgments of this Court wherein symbolic/paper possession is  held
to be no possession in the eyes of law  and  it  is  the  actual  possession
under relevant rules which matters:
      (i)   Balwant Narayan Bhagde v. M.D. Bhagwat[3]

      (ii)  NTPC Ltd. v. Mahesh Dutta[4]

      (iii) Raghbir Singh Sehrawat v. State of Haryana[5]


Learned counsel for the respondent even referred to the  provisions  of  the
Right  to  Fair  Compensation   and   Transparency   in   Land   Acquisition
Rehabilitation and Resettlement Act, 2013,  and  in  particular  sub-section
(2) of  Section  24  which  lays  down  specific  period  within  which  the
possession is to be taken of the property  after  acquisition  and  when  no
such possession was taken, the acquisition lapses.

In the first blush, argument of the  learned  counsel  for  the  respondent,
viz., there is a finding of fact that respondent  and  her  predecessors-in-
title have been in continuous possession and enjoyment of the suit  property
for more than 12 years and, therefore,  the  respondent  has  perfected  her
title by adverse possession, appears to be attractive.  It may appear to  be
a finding of fact simplicitor.  However, an indepth analysis  of  the  issue
would manifest  that  the  matter  cannot  be  brushed  aside  with  such  a
simplisitic overtone.  In fact, the detailed discussion that  follows  would
amply demonstrates that the manner in which the issue  has  been  approached
by the courts below is itself  erroneous  and  legally  unsustainable.   For
this, we are not even required to discuss various nuances of  the  issue  as
the judgment of this Court in M. Venkatesh has done  this  exercise  whereby
same issue has been directly and squarely dealt with which arose  in  almost
similar circumstances.  Therefore, it would be apt to discuss the  facts  of
that case as well as law laid down therein which would  provide  answers  to
many arguments raised by the parties before us.

In M. Venkatesh (supra) as well,  land was acquired by the State  Government
of  Karnataka  and  given  at  the  disposal  of   the   BDA.    Preliminary
Notification was issued on  July  17,  1984  and  final  Notification  dated
November 28, 1986 was published on  December  25,  1986.   Determination  of
amount of compensation payable to the landowners  having  been  approved  by
the competent authority on August 21, 1986, the BDA claimed that  possession
of the land was taken over from  the  landowners  and  handed  over  to  the
engineering section of the BDA by drawing a possession Mahazar  on  November
06, 1987.  A Notification under Section 16(2) of the Act was also  published
in the Karnataka Gazette dated July 04, 1991 which, according  to  the  BDA,
signified that the land in question stood vested with the BDA free from  all
encumbrances whatsoever.  Here also, after taking of the aforesaid steps  by
the BDA, the original land owners of the acquired land sold  the  said  land
to different persons after carving out the  sites/plots.   When  the  actual
possession was sought to be taken, the said subsequent purchasers (like  the
respondent in the instant appeal) filed writ petitions in  the  High  Court.
Their writ petitions, along with the writ petition of the respondent  herein
and some others, were the subject matter of the  judgment  of  the  Division
Bench of the  High  Court  in  John  B.  James's  case  (supra).   Like  the
respondent herein, the individuals/subsequent purchasers in the case  of  M.
Venkatesh (supra) were  also  relegated  to  the  civil  court  giving  them
permission to file the suit if they were claiming adverse possession.   Five
such suits were the subject matter of the judgment in M. Venkatesh  (supra).
 The trial court had, in  fact,  clubbed  these  suits  which  were  decided
together and decreed.  The issues framed in  those  suits  were  almost  the
same to the ones framed in the civil suit filed by  the  respondent  herein,
as is clear from the issues which were settled by the trial court  in  those
cases:
“(1)  Whether the Plaintiffs prove that, they have  acquired  and  perfected
their alleged title to  the  suit  schedule  properties  by  virtue  of  the
alleged law on adverse possession, as claimed?

(2)  Whether the  Plaintiffs  prove  their  alleged  lawful  possession  and
enjoyment of the suit schedule properties, as on the date of the suit?

(3)  Whether the Plaintiffs further prove the alleged illegal  interferences
and obstructions by the defendant?

(4)  Whether the defendant proves that,  the  suit  schedule  properties  is
duly acquired by the defendant, in accordance with  law  and  as  such,  the
same have stood vested with the defendant, free from all the encumbrances?

(5)  Whether the Plaintiffs are entitled to the suit relief  of  declaration
and injunction, against the defendant?

(6)  What Order or Decree?”

In that case also the trial court  had  recorded  the  findings  that  those
plaintiffs were  in  lawful  possession  on  the  date  of  the  suit,  such
possession was for  more  than  12  years  and,  thus,  the  plaintiffs  had
perfected  their  title  to  the  schedule  properties  by  way  of  adverse
possession.  The BDA filed appeals against the decree passed  by  the  trial
court.  Four appeals were allowed wherein  the  High  Court  held  that  the
trial court was wrong in recording the finding that  those  four  plaintiffs
had established their possession.  It was noticed  that  the  plaintiffs  in
those appeals were claiming settled possession  of  vacant  piece  of  land,
which was clearly impermissible.  The High Court found  that  there  was  no
dispute that all the structures on the suit properties,  relevant  to  those
suits, had been demolished and that the land was a vacant piece of land  all
along and at all material times, including on the date of  filing  the  suit
as well as on the  date  of  judgment.   These  four  plaintiffs  had  filed
appeals  which  were  dismissed  by  this  Court  in  M.  Venkatesh  (supra)
approving the view taken by  the  High  Court  in  the  said  four  appeals.
Insofar as decision in those four cases is concerned, it  may  not  be  very
relevant as in the instant case it is not the vacant land with which we  are
concerned.  However, what is relevant for us is the discussion in the  fifth
appeal which was filed by the BDA in the High Court wherein the  High  Court
had affirmed the decree passed in favour of the plaintiff.  The  High  Court
noticed that in the said case the plaintiffs were running a saw  mill  which
was in operation long prior to the filing of the suit  and  which  continued
to be in existence even on the date of the suit as well as on  the  date  of
the judgment of the High Court.  Keeping in  view  the  aforesaid  position,
the High Court relied upon its Division Bench judgment in  John  B.  James's
case (supra) and held that the plaintiff therein was entitled to  protection
against attempted eviction by the BDA.  On this basis, decree passed by  the
trial court was  affirmed.   This  judgment  of  the  High  Court  was  also
appealed against, which also became the subject matter of discussion  in  M.
Venkatesh (supra).  Pertinently, this Court allowed the appeal  of  the  BDA
and set aside the aforesaid judgment of the  High  Court  and  reversed  the
decree passed by the trial court, thereby holding that  even  in  this  case
the plaintiff was not entitled to any protection.

Following reasons can be culled out in taking the  aforesaid  view  by  this
Court:
(a)  The plaintiff therein had purchased  the  property  from  the  original
owners in terms of sale deed dated August 22, 1980,  which  was  long  after
the issuance of the preliminary notification published in July  1984.   Such
a sale was clearly void and non est in the eyes of law,  opined  the  Court.
In arriving at this conclusion, it referred to  earlier  decisions  of  this
Court in U.P. Jal Nigam  v.  Kalra  Properties  Pvt.  Ltd.[6];  Ajay  Kishan
Singhal v. Union of India[7]; Mahavir & Anr. v. Rural Institute, Amravati  &
Anr.[8]; Gian Chand v. Gopala & Ors.[9]; Meera Sahni v. Lieutenant  Governor
of Delhi & Ors.[10]; and Tika Ram v. State of Uttar Pradesh[11].

(b)  As on the date of suit, the plaintiffs had not completed  12  years  in
possession of the suit property so as  to  entitle  them  to  claim  adverse
possession against the BDA, the true owner. This finding was  given  on  the
basis that the plaintiffs could count the period of  the  so-called  adverse
possession only from the date they purchased the  property  and  the  period
for which the original vendor held the property,  or  for  that  matter  the
date of Mahazar, could not be counted.

(c)  The Court also rejected the argument of the plaintiffs that  possession
of the land was never taken.  In this behalf, the Court took the  view  that
one of the settled mode of taking possession  is  by  drawing  a  panchnama,
which part had been done to perfection according to the evidence led by  the
BDA.  For this, the Court referred to the judgments in  Tamil  Nadu  Housing
Board v. A. Viswam (D) by Lrs.[12] and Larsen &  Toubro  Ltd.  v.  State  of
Gujarat & Ors.[13]

(d)  Most pertinently, the Court also held that  the  plaintiffs  could  not
claim adverse possession as, on the facts of that  case,  it  could  not  be
said that possession of the plaintiffs was peaceful,  open,  continuous  and
non-hostile.  On this aspect, the Court took note of essentials  of  adverse
possession, which are required to be proved, from the judgment in  the  case
of Karnataka Board of  Wakf  v.  Government  of  India[14]  and  some  other
judgments.  Discussion in this behalf is contained in paras 15 to 18,  which
read as under:
“15.  Coming     then    to    the    question    whether   the  plaintiffs-
respondents could claim adverse possession, we need to  hardly  mention  the
well known and oft quoted maxim nec  vi,  nec  clam,  nec  precario  meaning
thereby that adverse possession is proved only when possession is  peaceful,
open, continuous and hostile.  The essentials  of  adverse  possession  were
succinctly summed-up by this Court in Karnataka Board of Wakf  v.  Govt.  of
India (2004) 10 SCC 779 in the following words:

“11.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. (See S.M. Karim v. Bibi Sakina  (AIR  1964  SC  1254),  Parsinni  v.
Sukhi (1993) 4 SCC 375 and D.N. Venkatarayappa v. State of Karnataka  (1997)
7 SCC 567). Physical fact of exclusive possession and the animus  possidendi
to hold as owner in exclusion to the actual owner  are  the  most  important
factors that are to be accounted in cases of this nature.  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 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. [Mahesh Chand Sharma (Dr.) v. Raj Kumari  Sharma  (1996)
8 SCC 128)."

16. Reference may also be made to the decision  of  this  Court  in   Saroop
Singh v. Banto (2005) 8 SCC 330, where this Court emphasised the  importance
of animus possidendi and 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 the 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 Mohd. Mohd. Ali v.  Jagadish Kalita (2004) 1 SCC 371, SCC para 21.)"

17. Also noteworthy is the decision of this Court  in  Mohan  Lal  v.  Mirza
Abdul Gaffar (1996) 1 SCC 639, where this Court held that claim of title  to
the property and adverse possession are in terms contradictory.  This  Court
observed:

“4. As regards the first plea, it is  inconsistent  with  the  second  plea.
Having come into possession under the agreement, he must disclaim his  right
thereunder and plead and prove assertion of his independent hostile  adverse
possession to the knowledge of the transferor or his successor in  title  or
interest and that the  latter  had  acquiesced  to  his  illegal  possession
during the entire period of 12 years, i.e., up to completing the  period  of
his title by  prescription  nec  vi,  nec  clam,  nec  precario.  Since  the
appellant's claim is founded on Section 53-A, it goes  without  saying  that
he admits by implication that he came into possession of the  land  lawfully
under the agreement and continued to remain in possession till date  of  the
suit. Thereby the plea  of  adverse  possession  is  not  available  to  the
appellant."

18. To the same effect is the decision of this Court in Annasaheb  Bapusaheb
Patil v.  Balwant  (1995)  2  SCC  543,  where  this  Court  elaborated  the
significance  of  a  claim  to  title  viz.-a-viz.  the  claim  to   adverse
possession over the same property. The Court said:

“15.  Where possession can 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."

After taking note of the principle of law relating to adverse possession  in
the aforesaid manner, this Court commented about the erroneous  approach  of
the High Court in the following manner:
“19.  The Courts below have not seen the plaintiff- respondent's claim  from
the  above  perspectives.  The  High  Court  has,  in  particular,  remained
oblivious of the principle enunciated in the  decisions  to  which  we  have
referred herein above. All that the High Court has found in  favour  of  the
plaintiffs is that their possession is established. That, however, does  not
conclude the controversy. The question is not just  whether  the  plaintiffs
were in possession, but whether they had by being in adverse possession  for
the statutory period of 12 years perfected their title.  That  question  has
neither been adverted to nor answered  in  the  judgment  impugned  in  this
appeal. Such being the case  the  High  Court,  in  our  opinion,  erred  in
dismissing the  appeal  filed  by  the  appellant-BDA.  The  fact  that  the
plaintiffs  had  not  and  could  not  possibly  establish   their   adverse
possession over the suit property should have resulted in dismissal  of  the
suit for an unauthorised occupant had no right to claim  relief  that  would
perpetuate his illegal and unauthorised occupation of  property  that  stood
vested in the BDA.”


In addition to the discussion contained in M. Venkatesh  case  noted  above,
we may also add what was held in P.T. Munichikkanna Reddy & Ors. v.  Revamma
& Ors.[15]:
“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; Arkansas Commemorative Commission v. City of Little  Rock;  Monnot  v.
Murphy; and City of Rock Springs v. Sturm).”

In Rama Shankar & Anr. v. Om Prakash Likhdhari  &  Ors.[16],  the  Allahabad
High Court has observed as under:
“21.  The principle of adverse  possession  and  its  consequences  wherever
attracted has been recognized in the statute dealing with  limitation.   The
first codified statute dealing with limitation came to be enacted  in  1840.
The Act 14 of 1840 in fact was an enactment applicable  in  England  but  it
was extended to the territory of Indian continent which was under the  reign
of East India Company, by an authority of Privy Council in  the  East  India
Company v. Oditchurn Paul, 1849 (Cases in the Privy Council on  Appeal  from
the East Indies) 43.

                          xx          xx         xx

23.  The law of Prescription prescribes the period at the  expiry  of  which
not only the judicial remedy is barred but a substantive right  is  acquired
or extinguished.  A prescription, by which a right is  acquired,  is  called
an  'acquisitive  prescription'.   A  prescription  by  which  a  right   is
extinguished is called 'extinctive prescription'.  The  distinction  between
the two is not of much practical importance or  substance.   The  extinction
of right of one party is often the mode of acquiring  it  by  another.   The
right extinguished is virtually transferred to the person who claims  it  by
prescription.  Prescription implies with the thing  prescribed  for  is  the
property of another and that it is enjoyed  adversely  to  that  other.   In
this respect it must be distinguished from acquisition  by  mere  occupation
as in the case of res nullius.  The  acquisition  in  such  cases  does  not
depend upon occupation for any particular length of time.”


The aforesaid analysis of the judgment in M. Venkatesh (supra)  amply  shows
that it is squarely and directly applicable to the facts  and  circumstances
of the present case.  In the first instance, it shows that reliance  of  the
respondent herein on the judgment of John B. James (supra) is of  no  avail.
It would further demonstrate that the findings of the court below that  only
paper possession was taken and actual possession was not taken also  becomes
meaningless as the manner of taking possession in the instant case was  also
identical.  In addition, it is pertinent  that  the  respondent  herein,  in
para 10 of the plaint, had herself admitted that the officials  of  the  BDA
had come to the suit property on April 24, 2001 and demolished the  existing
structure.  This act of the BDA would amply demonstrate that  there  was  no
unhindered, peaceful and continuous possession of the suit land.

Learned counsel for the respondent had raised the plea  of  equity.  He  has
also submitted that when the BDA  itself  is  created  for  the  purpose  of
formation of layouts and allotment of sites to the members  of  the  public,
the respondent  should  not  be  dispossessed  when  she  is  in  continuous
possession of the suit property.  However, these would not be  the  relevant
considerations in the present case as we  cannot  forget  that  the  present
appeal arises out of civil proceedings filed in the form of a  suit  by  the
respondent and once it is found that the respondent has  not  been  able  to
prove title by adverse possession, no such aspects, not  coming  within  the
scope of the suit proceedings, can be looked into.  Insofar as the  argument
predicated on Section 27 of  the  Bangalore  Development  Authority  Act  or
Section 24(2) of the Right to Fair Compensation  and  Transparency  in  Land
Acquisition Rehabilitation and Resettlement Act, 2013 are  concerned,  again
these issues were neither raised nor arise in  the  instant  case.   If  the
respondent, if at all,  has  any  right  to  make  claim  on  the  aforesaid
grounds, in any appropriate proceedings, she can do so,  if  permissible  in
law.  We may clarify that this Court has not gone  into  these  issues  and,
therefore, has not made any comments on the merits of such pleas  raised  by
the respondent.

As a result, the appeal stands allowed resulting in dismissal  of  the  suit
filed by the respondent in the trial court.  In the facts and  circumstances
of this case, there shall be no order as to costs.

                             .............................................J.
                                                                (A.K. SIKRI)


                             .............................................J.
                                                              (R.K. AGRAWAL)
NEW DELHI;
MARCH 10, 2016.
-----------------------
[1]   (2015) 10 Scale 27
[2]   ILR 2000 KAR 4134
[3]   (1976) 1 SCC 700
[4]   (2009) 8 SCC 339
[5]   (2012) 1 SCC 792
[6]   (1996) 3 SCC 124
[7]   (1996) 10 SCC 721
[8]   (1995) 5 SCC 335
[9]   (1995) 5 SCC 528
[10]  (2008) 9 SCC 177
[11]  (2009) 10 SCC 689
[12]  (1996) 2 SCC 634
[13]  (1998) 4 SCC 387
[14]  (2004) 10 SCC 779
[15]  (2007) 6 SCC 59
[16]  (2013) 6 ADJ 119

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.