REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6039 OF 2003
Chatti Konati Rao & Ors. …. Appellants
Versus
Palle Venkata Subba Rao …. Respondent
J U D G M E N T
CHANDRAMAULI KR. PRASAD, J.
1. Plaintiff No. 1 is the son of plaintiff No. 2, whereas
original defendant Nos. 1 and 2 were brother and sister of the
second plaintiff. Both the defendants died during the
pendency of the suit. The heirs and legal representatives of the
first defendant were substituted in his place and they had
contested the suit. 2. Plaintiff filed the suit for recovery of possession in respect
of several properties mentioned in schedule of the plaint and
in the present appeal we are concerned with Schedule – I
property i.e. four acres of land pertaining to R.S. No. 44/3
situate at village Vijjeswaram, hereinafter referred to as the
land in dispute.
3. According to the plaintiffs their predecessor-in-interest
viz., one Venkata Ramana Rao, who happened to be the father
of plaintiff No. 1 and husband of plaintiff No. 2, was the owner
of land in dispute. Venkata Ramana Rao was a Government
employee and in his absence defendant No. 1 i.e. elder brother
of second plaintiff used to look after his property. Said
Venkata Ramana Rao died in the year 1948 and thereafter the
plaintiffs came back to the village and started looking after the
agricultural land including the land in dispute. Plaintiff’s case
further is that again in the year 1954 they shifted their
residence to Kakinada for education of the first plaintiff and
defendant No. 1 was asked to look after the land in dispute.
In the year 1974 when the defendant declined to deliver
2possession of the land in dispute, lawyer’s notice dated 6
th
April, 1974 was issued calling upon the defendants to hand
over the property. Defendant No. 1 responded to the notice by
his letter dated 27th May, 1974 denying the title of the
plaintiffs and claiming himself to be the owner of the property.
Plaintiffs thereafter filed the suit bearing O.S. No. 20 of 1974
in the Court of the Subordinate Judge, West Godavari District,
Kovvur for recovery of possession in respect of land in dispute
and for mesne profit.
4. In the written statement filed by defendant No. 1 his plea
was that he purchased the land in dispute under a stamped
agreement from Venkata Ramana Rao for a value of
Rs.1600/-. According to him he paid Rs.1,000/- to Venkata
Ramana Rao and a sum of Rs.225/- to one Bombothu
Chitteyya who was the tenant and in possession of the land in
dispute during 1943 and said tenant vide letter dated 16th
June, 1943 relinquished his possession and delivered the land
to defendant No. 1. It is further case of defendant No. 1 that
balance amount of Rs.400/- was sent by Money Order. After
3the death of Venkata Ramana Rao, the second plaintiff
claimed more money towards the sale of the land in dispute
and plaintiff No. 2 being the sister of defendant No. 1, a
further sum of Rs.500/- was paid to her vide receipt dated 14th
January, 1952 (Exh.B-4).
5. Plea of defendant No. 1 further is that on 6
th November,
1960 he filed an application before the Assistant Settlement
Officer for correction of rough patta issued in favour of second
plaintiff in 1959 and to substitute his name along with his
brother’s name in place of second plaintiff. In the application
defendant No. 1 categorically stated that on 18th February,
1954 the Settlement Officer directed issuance of patta of the
land in dispute along with other lands in their favour and he
was all through waiting for the issuance of patta. However,
according to defendant No. 1, in August, 1959 he came to
know that a rough patta was issued to second plaintiff
contrary to the decision of the Settlement Officer and
thereafter he filed an application on 7
th November, 1959 before
the Rough Patta Correction Officer informing him about
4variance between grant and the order and prayed that the
name of the second plaintiff be deleted from the patta and in
her place his name and that of his brother’s name be
substituted. According to defendant No. 1 he filed reminder
on 6
th November, 1960 but it was returned by the Assistant
Settlement Officer on 22
nd November, 1960 with certain
objections. Thereafter the first defendant did not present the
petition for substituting his name in the patta by deleting the
name of the second plaintiff. Further plea of the first
defendant was that he had perfected his title by adverse
possession.
6. On the basis of the pleadings of the parties the trial court
framed various issues; including the following issues :
“1. Whether the father of the 1
st plaintiff late
Venkata Ramana Rao died possessed of the
plaint schedule properties?
2.Whether any of the suit properties were
entrusted to any of the defendants in or about
the year 1952?
3.Whether sale of item I of the schedule
property to 1st defendant in 1943 is true?”
57. It is relevant here to state that no issue of adverse
possession was framed but on the basis of the materials on
record the trial court came to the conclusion that title to the
plaintiffs even if proved, gets extinguished by adverse
possession. It further held that defendant No. 1 is in
possession of the suit property and when considered along
with other documents, the same proves his title. The trial
court also observed that the plaintiff having not adduced any
oral evidence or filed any document to show that the property
was entrusted to defendant No. 1 for management, it is evident
that defendant No. 1 has title over the land in dispute. The
trial court further held that defendant No. 1 had purchased
the land in dispute and on these findings the trial court
dismissed the suit.
8. Plaintiffs, aggrieved by the judgment and decree of the
trial court, preferred appeal before the High Court and the
learned Single Judge by his judgment and decree dated
16.09.1987 dismissed the appeal. Plaintiffs thereafter
preferred Letters Patent Appeal No. 438 of 1988 and the
6Division Bench of the High Court by its judgment and decree
dated 19.12.2001 allowed the appeal; set aside the judgment
and decree of the trial court as well as of the appellate court
and decreed the suit. While doing so the High Court observed
as follows :
“From the documentary evidence available on
record, it cannot be said that the first defendant has
perfected his title to the property by adverse
possession. On the other hand, he tried to change
his version from time to time to suit his convenience
i.e., firstly, in the written statement he contended
that he had purchased the property from late
Venkata Ramana Rao and produced two letters said
to have been written by Venkata Ramana Rao,
whose writing is not at all tallying, and we have no
manner of doubt that these letters were brought
into existence by the first defendant in support of
his case. Secondly, the first defendant filed an
application in year 1964 before the Settlement
Officer contending that himself and his brothers are
Agraharamdars and are entitled to patta under
section 15 of the Estates Abolition Act, but he never
disclosed that he had purchased the land from his
brother-in-law. Though he obtained an order from
Assistant Settlement Officer in the year 1964, no
patta was issued to DI till the trial of the suit on the
other hand even as per his version rough patta was
issued in the name of 2
nd plaintiff, but he has not
taken any steps to get it cancelled. Now, he started
contending that he perfected title by adverse
possession. As he himself admitted that initially his
possession is permissive one as he was not paying
any rents and enjoying the property to himself to
exclusion of the land owners, he cannot contend
7that he perfected title by adverse possession; more
so in the light of Exs. B-5 and B-9 wherein both the
parties are fighting for patta after abolition of the
estate. In order to establish that the first defendant
had perfected his title to the property by adverse
possession, it requires more cogent proof, which is
not forthcoming in this case. On the other hand, if
we analyse the documentary evidence available on
record, the only conclusion we can arrive at is that
taking advantage of the near relationship between
him and the plaintiffs and their absence from the
village, the first defendant tried to create documents
to knock away the property. We have not discussed
the oral evidence for the simple reason that the
documentary evidence itself speaks of the falsehood
of the claim of defendants.”
9. Heirs and legal representatives of defendant No. 1,
aggrieved by the same, have preferred this appeal with leave of
the Court.
10. Mr. Ananga Bhattacharya, learned counsel appearing on
behalf of the appellants submits that the concurrent findings
of facts of the trial court and the appellate court ought not to
have been upset by the Division Bench in Letters Patent
appeal. We do not find any substance in the submission of
Mr. Bhattacharya. In fact, while setting aside the judgment
and decree of the trial court and the appellate court the
8Division Bench referred to the decision of this Court in the
case of Asha Devi v. Dukhi Sao [AIR 1974 SC 2048: (1974) 2
SCC 492], and came to the conclusion that the “power of the
Division Bench hearing a Letters Patent appeal under Clause
(10) from the judgment of a single Judge in first appeal is not
limited only to a question of law under Section 100 of the Code
of Civil Procedure, but it has the same power which the Single
Judge has as a first Appellate Court in respect of both
questions of fact and of law.” We are of the opinion that the
High Court was absolutely right in making the aforesaid
observation and accordingly we reject this submission of Mr.
Bhattacharya.
11. Mr. Bhattacharya, then submits that the appellants had
perfected their title by adverse possession and the findings so
recorded by the trial court and the appellate court ought not to
have been interfered in appeal. Mr. Abid Ali Beeran, learned
counsel appearing on behalf of the respondent, however,
submits that the finding recorded by the trial court and the
9appellate court being absolutely illegal, nothing prevented the
Division Bench of the High Court to set aside that finding.
12. We have bestowed our thoughtful consideration to the
submission advanced and we do not find any substance in the
submission of Mr. Bhattacharya. What is adverse possession,
on whom the burden of proof lie, the approach of the court
towards such plea etc. have been the subject matter of
decision in a large number of cases. In the case of T.
Anjanappa v. Somalingappa (2006) 7 SCC 570, it has been
held that mere possession however long does not necessarily
mean that it is adverse to the true owner and the classical
requirement of acquisition of title by adverse possession is
that such possessions are in denial of the true owner’s title.
Relevant passage of the aforesaid judgment reads as follows :
“20. It is well-recognised proposition in law that
mere possession however long does not necessarily
mean that it is adverse to the true owner. Adverse
possession really means the hostile possession
which is expressly or impliedly in denial of title of
the true owner and in order to constitute adverse
possession the possession proved must be adequate
in continuity, in publicity and in extent so as to
show that it is adverse to the true owner. The
classical requirements of acquisition of title by
adverse possession are that such possession in
10denial of the true owner’s title must be peaceful,
open and continuous. The possession must be open
and hostile enough to be capable of being known by
the parties 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.”
13. What facts are required to prove adverse possession have
succinctly been enunciated by this Court in the case of
Karnataka Board of Wakf vs. Government of India and
Ors. (2004) 10 SCC 779. It has also been observed that a
person pleading adverse possession has no equities in his
favour and since such a person is trying to defeat the rights of
the true owner, it is for him to clearly plead and establish
necessary facts to establish his adverse possession.
Paragraph 11 of the judgment which is relevant for the
purpose reads as follows :
“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”,
11that 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]”
14. In view of the several authorities of this Court, few
whereof have been referred above, what can safely be said that
mere possession however long does not necessarily mean that
it is adverse to the true owner. It means hostile possession
which is expressly or impliedly in denial of the title of the true
owner and in order to constitute adverse possession the
possession must be adequate in continuity, in
12publicity and in extent so as to show that it is adverse to the
true owner. The possession must be open and hostile enough
so that it is known by the parties interested in the property.
The plaintiff is bound to prove his title as also possession
within 12 years and once the plaintiff proves his title, the
burden shifts on the defendant to establish that he has
perfected his title by adverse possession. Claim by adverse
possession has two basic elements i.e. the possession of the
defendant should be adverse to the plaintiff and the defendant
must continue to remain in possession for a period of 12 years
thereafter. Animus possidendi as is well known a requisite
ingredient of adverse possession. Mere possession does not
ripen into possessory title until possessor holds property
adverse to the title of the true owner for the said purpose. The
person who claims adverse possession is required to establish
the date on which he came in possession, nature of
possession, the factum of possession, knowledge to the true
owner, duration of possession and possession was open and
undisturbed. A person pleading adverse possession has no
equities in his favour as he is trying to defeat the rights of the
13true owner and, hence, it is for him to clearly plead and
establish all facts necessary to establish adverse possession.
The courts always take unkind view towards statutes of
limitation overriding property rights. Plea of adverse
possession is not a pure question of law but a blended one of
fact and law.
15. Bearing in mind the principles aforesaid when we
proceed to consider the facts of this case, we find that
appellants have miserably failed to prove that they have
perfected their title by adverse possession. It is worth
mentioning here that initial plea of the appellant was that they
had purchased the property from the original owner,
alternatively by virtue of agreement to sale they came in
possession of the property. Both these pleas have not been
substantiated. Neither the purported sale deed nor agreement
to sale have been placed on record. As regards the plea of
adverse possession, appellants’ case is that out of the
consideration money of Rs.1,600/-, Rs.1,000/- was paid to the
14real owner and on payment of Rs. 225/- to the tenant in
possession namely Bombothu Chitteyya, he relinquished his
possession. This relinquishment of possession by the tenant
shall not enure to the benefit of the appellants against the true
owner so as to accept their claim for adverse possession.
Appellants are required to prove that their possession was
adverse to the true owner. The plea of the appellants on the
basis of the purported order dated 18
th February, 1954 of the
Settlement Officer directing for issuance of Patta in their
favour also does not advance their case. It is not the
appellant’s case that plaintiffs were party before the
Settlement Officer. Further, it is not in dispute that no Patta
was issued in favour of the appellants and in fact rough Patta
was issued in favour of the second plaintiff. Thus, the
appellants have not proved the necessary ingredients to
establish their title by adverse possession. In our opinion, the
Division Bench is absolutely right in rejecting the appellants’
plea of adverse possession and decreeing the plaintiff’s suit,
after setting aside the judgment and decree of the trial and the
appellate Court.
1516. In the result, we do not find any merit in the appeal and
it is dismissed with cost throughout to be paid by the
appellants to the respondent. Lawyers fee quantified at
Rs.25,000/-.
…….………………………………….J.
( HARJIT SINGH BEDI )
………..……………………………….J.
(CHANDRAMAULI KR. PRASAD)
NEW DELHI,
DECEMBER 7, 2010.
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