Hon'ble Mr. Justice N.V. Ramana
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7266 OF 2013
RAM NAGINA RAI & ANR. ..APPELLANTS
VERSUS
DEO KUMAR RAI (DECEASED) BY LRS.
& ANR. ..RESPONDENTS
O R D E R
This appeal is directed against the judgment and order dated
17.10.2003, passed by the learned Single Judge of the High Court of
Judicature at Patna in Second Appeal
No. 403 of 1998. By the impugned judgment, the High Court
confirmed the judgment and decree dated 30.06.1998 passed by the
9 th
Additional District Judge, Bhojpur at Arrah in Title Appeal
No.26/97.
2. The records reveal that the appellants being the plaintiffs in Title
Suit No. 64/89 in the court of Munsif III, Arrah (Bhojpur) filed a suit
for declaration of title and recovery of possession in respect of the suit
house situated over new Plot No. 2909 under new Khata No. 699, area
measuring 10 decimals. The suit came to be decreed by the Trial Court
in favour of the plaintiffs. The contesting defendants filed Title Appeal
No. 26/97 9 th
before the Additional District Judge, Bhojpur at Arrah,
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which came to be allowed, setting aside the judgment of the Trial
Court; consequently, the suit of the appellants herein was dismissed.
The judgment of the District Court, i.e. the First Appellate Court,
dated 30.06.1998 was confirmed by the High Court in second appeal
on 17.10.2003. Thus, the unsuccessful plaintiffs are before us
questioning the judgment of the High Court as well as the First
Appellate Court.
3. The case of the plaintiffs is that the disputed house was in their
ownership and the khata of the property was recorded in the name of
their ancestor. Since the defendants� ancestor was on friendly terms
with the plantiffs� ancestor, and as plaintiffs� ancestor was in a
different place for business, the defendants were permitted to occupy
the disputed house. The defendants got khatian changed without
notice to the plaintiffs, showing the defendants to be in possession of
the disputed house. Since the defendants did not hand over
possession of the property to the plaintiffs, despite many requests by
the plaintiffs, the suit came to be filed.
The case of the contesting defendants is that they are the owners
in possession of the suit house even prior to 1953. Their ancestor, viz.
Sheomuni Rai, had friendly relations with the plaintiffs� grandfather,
Pitambar Rai. At the time of the revision survey, the concerned
authorities having found that the defendants are in possession of the
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property, R.S. Khatian was prepared in their names. R.S. Khatian was
finally published in the year 1970, but the plaintiff filed the Title Suit
only 19 years after its final publication and hence, the suit is barred
by limitation. It is further the case of the defendants that they have
become owners of the property by virtue of their adverse possession
over the suit property. In other words, the defendants contended that
they had perfected the title by adverse possession and therefore the
plaintiffs are not entitled to recover the possession of the suit house
from the defendants.
4. The only question to be decided in this appeal is, whether the
First Appellate Court and the High Court were justified in concluding
that the defendants have perfected the title by adverse possession over
the suit property. Heard the arguments on both the sides, and
perused the records at hand.
5. At the outset, it is relevant to mention that the defendants have
not produced any document to show that they are the owners of the
suit property by purchasing the same or by acquiring the same by any
mode of transfer. Also, there is nothing on record to show that the
property in question is the ancestral property of the defendants.
However, alternative case of the defendants that the plaintiffs were the
owners of the property and had permitted the defendants� ancestor
and thereafter, the defendants to be in possession of the property. In
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other words, the defendants do admit that the plaintiffs are the owners
of the property. But the sole contention of the contesting defendants is
that they have perfected the title by adverse possession, and that the
suit to claim possession of the suit property is beyond the period of
limitation. The plaintiffs do admit that the defendants are in
permissive possession of the property, but claim that k hatian changed
in the name of defendants was without notice to the plaintiffs and the
same cannot be relied upon. It is the specific case of the plaintiffs that
the defendants have not perfected the title by virtue of adverse
possession.
6. Since the contesting defendants have raised a plea of adverse
possession, the burden is on them to prove affirmatively that the bar
of limitation prescribed under Article 65 of the Schedule of the
Limitation Act, 1963, viz., 12 years, is applicable in the matter to file a
suit for possession of immovable property based on title. The
limitation of 12 years begins when the possession of the defendants
would become adverse to that of the plaintiffs. Thus, it is incumbent
on the plaintiffs to file a suit for possession within 12 years from when
the possession of the defendants becomes adverse to the plaintiffs.
Article 65 presupposes that the limitation starts only if the defendants
prove the factum of adverse possession affirmatively from a particular
time. Adverse possession means a hostile assertion, i.e. a possession
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which is expressly or impliedly in denial of the title of the true owner.
The person who bases his title on adverse possession must show, by
clear and unequivocal evidence, that the possession was hostile to the
real owner and it amounted to the denial of his title to the property
claimed. In deciding whether the acts alleged by the person constitute
adverse possession, regard must be given to the animus of the person
doing such acts, which must be ascertained from the facts and
circumstances of each case. It is needless to observe that where the
possession can be referred to a lawful title, it would not be considered
to be adverse, the reason being that the person whose possession can
be drawn to a lawful title, will not be permitted to show that his
possession was hostile to another�s title. Simply put, one who holds
possession on behalf of another, does not by mere denial of the other�s
title, make his possession adverse so as to give himself the benefit of
the statute of limitation.
7. In the matter on hand, though the defendants have pleaded that
they are the owners of the property, it seems that during the course of
the trial, they have given up this contention, inasmuch as they have
only concentrated on the contention that they have perfected the title
by adverse possession. All through, as is evident from the material
evidence on record and their contentions, the defendants have tried to
show that they have been in continuous possession of the property for
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more than 60 years. But there is no iota of evidence to show as to
when the defendants� possession in fact became adverse to the interest
of the plaintiff. Except for the change of k hatian sometime in the year
1970 by the defendants and the payment of taxes for being in
possession of property, no material is produced by the defendants to
show whether the possession was really hostile to the actual owner.
There is absolutely nothing on record to show that there was a hostile
assertion by the defendants. We do not find that the defendants had
hostile animus at any point of time, from the facts and circumstances
of this case. The defendants denied the title of the plaintiffs over the
suit property only when the suit came to be filed, inasmuch as the
defendants have taken such a contention for the first time in their
written statements.
8. The non-use of the property by the owner even for a long time
may affect the title of the owner under certain circumstances. The
acquisition of title by adverse possession springs into action
essentially by default or inaction of the owner. There is a lot of
difference between simple possession and adverse possession. Every
possession is not adverse possession. The defendants will not acquire
adverse possession by simply remaining in permissive possession for
howsoever long it may be.
9. Until the defendants� possession becomes adverse to that of the
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real owner, the defendants continue in permissive possession of the
property. Only if the defendants� possession becomes adverse to the
interest of the real owner and the real owner fails to file the suit for
possession within 12 years, as prescribed under Article 65 of the
Limitation Act, from the point of time the possession by the
defendants becomes adverse to the plaintiffs, the real owner loses his
title over the property.
The defendants are not only required to prove that they have
been in possession of the suit property continuously and
uninterruptedly, but also need to prove, by cogent and convincing
evidence, that there is hostile animus and possession adverse to the
knowledge of the real owner.
10. This Court, while discussing the law relating to adverse possession
in P.T. Munichikkanna Reddy and Ors. v. Revamma and Ors, 1
held that,
to assess a claim of adverse possession, a two-pronged enquiry is
required; viz. application of the limitation provisions, and the specific
positive intention to dispossess on the part of the adverse possessor.
In Thakur Kishan Singh v. Arvind Kumar, 2
this Court held:
�5. As regards adverse possession, it was not disputed even by
the trial court that the appellant entered into possession over the
land in dispute under a licence from the respondent for purposes
of brick-kiln. The possession thus initially being permissive, the
burden was heavy on the appellant to establish that it became
1 (2007) 6 SCC 59 p. 68 para 8
2 (1994) 6 SCC 591 p. 594, para 5
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adverse. A possession of a co-owner or of a licensee or of an
agent or a permissive possession to become adverse must be
established by cogent and convincing evidence to show hostile
animus and possession adverse to the knowledge of real owner.
Mere possession for howsoever length of time does not result in
converting the permissive possession into adverse possession.
Apart from it, the appellate court has gone into detail and after
considering the evidence on record found it as a fact that the
possession of the appellant was not adverse. �
(emphasis supplied)
Talking about the concept of intention to dispossess, the case of
Powell v. McFarlane, 3
was used as guidance in P.T. Munichikkanna
Reddy and Ors. v. Revamma and Ors (supra) , wherein it is stated thus:
�18. On intention, Powell v. McFarlane is quite illustrative and
categorical, holding in the following terms:
"If the law is to attribute possession of land to a person
who can establish no paper title to possession, he must
be shown to have both factual possession and the
requisite intention to possess ('animus possidendi') .
xxx
If his acts are open to more than one interpretation and
he has not made it perfectly plain to the world at large by
his actions or words that he has intended to exclude the
owner as best he can, the courts will treat him as not
having had the requisite animus possidendi and
consequently as not having dispossessed the owner.
xxx
In my judgment it is consistent with principle as well as
authority that a person who originally entered another's
land as a trespasser, but later seeks to show that he has
dispossessed the owner, should be required to adduce
compelling evidence that he had the requisite animus
possidendi in any case where his use of the land was
equivocal, in the sense that it did not necessarily, by
itself, betoken an intention on his part to claim the land
as his own and exclude the true owner .
xxx
What is really meant, in my judgment, is that the
animus possidendi involves the intention, in one's own
3 (1977) 38 P & CR (Property, Planning and Compensation Reports) 452
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name and on one's own behalf, to exclude the world at
large, including the owner with the paper title if he be not
himself the possessor, so far as is reasonably practicable
and so far as the processes of the law will allow. "
19. Thus, there must be intention to dispossess. And it needs to
be open and hostile enough to bring the same to the knowledge
and plaintiff has an opportunity to object. After all adverse
possession right is not a substantive right but a result of the
waiving (willful) or omission (negligent or otherwise) of right to
defend or care for the integrity of property on the part of the
paper owner of the land. Adverse possession statutes, like other
statutes of limitation, rest on a public policy that do not promote
litigation and aims at the repose of conditions that the parties
have suffered to remain unquestioned long enough to indicate
their acquiescence.�
(emphasis in original)
11. Thus, it is important to assess whether such intention to
dispossess is apparent to the actual owner or not. The intention of the
adverse user must be communicated atleast impliedly to the actual
owner of the property. His hostile attitude should be open to the
knowledge of the real owner. It follows that the intention and
possession of the adverse possessor must be hostile enough to give
rise to a reasonable notice to the actual owner.
12. Applying the test of nec vi, nec clam, nec precario i.e., 'without
force, without secrecy, without permission ' as an established test for
finding adverse possession, we find that the defendants have not
proved their possession to be adverse to that of the real owner
inasmuch as they entered into possession as licensees to begin with
and there is nothing on record to show as to when the permissive
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possession became adverse to the interest of the real owner. � Animus
possidendi � is one of the ingredients of adverse possession, and unless
the person possessing the property has the requisite hostile animus,
the period of prescription does not commence. Virtually, the
defendants are required to prove the possession to be adequate in
continuity, adequate in publicity and to adequately show that their
possession is adverse to that of the true owner. It must start with
wrongful dispossession of the rightful owner and be actual, visible,
exclusive, hostile and continued over the statutory period.
The physical fact of exclusion, possession and animus possidendi
to hold as owner, in exclusion to the actual owner, are the most
important factors to prove adverse possession.
A person pleading adverse possession has no equities in his
favour. Since he is trying to take away the rights of the true owner, it
is for him to clearly plead and establish all the facts necessary to
establish his adverse possession.
13. It is an established position of law that insofar as Articles 64 and
65 of the Limitation Act are concerned, once a party proves its title,
the onus of proof would be on the other party to prove the claim of title
by adverse possession. In this case, it is an admitted fact that the
ownership of the said suit property rests with the plaintiffs. In this
given scenario, it is our considered view that the defendants have not
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proved the onus of adverse possession against the plaintiffs.
14. This court in the case of Hemaji Waghaji vs. Bhikhabhai
Khengarbhai and Ors. , 4
has opined that there is an urgent need for a
fresh look regarding the law on adverse possession by observing thus :
" 32 . 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
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.
33. We fail to comprehend why the law should place
premium on dishonesty by legitimising possession of a rank
trespasser and compelling the owner to lose his 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.�
This aforementioned observation was reiterated by this Court in a
subsequent judgment of State of Haryana v. Mukesh Kumar, 5
wherein
the Court observed that the law of adverse possession needs a re-look,
holding the right to property to be a human right, in addition to it
being a constitutional or a statutory right.
4 (2009) 16 SCC 517
5 (2011) 10 SCC 404
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15. In light of the above observations of this Court, we find that there
is no absolute requirement to deem the mere possession of the suit
property by the defendants to amount to adverse possession over the
suit property. This would be in clear violation of the basic rights of the
actual owner of the property. There is nothing on record to show that
the defendants� permissive possession over the property became
adverse to the interest of the real owner, at any point of time. On the
contrary, the records reveal that the permissive possession of the
defendants continued till the filing of the suit.
16. The defendants have relied upon certain paid tax receipts and
khatian extracts. The Trial Court has, on facts, specifically found that
these documents do not disclose the khatian and plot number, and
even the tax receipts do not relate to the suit house. Also, the
chaukidari receipts (A1 to A16) do not contain the khatian of the suit
house. These receipts have been unfortunately believed to prove that
the defendants are in adverse possession of the disputed land. Even
assuming that those documents relate to the suit house, they, at the
most, depict the possession of the defendants and not their adverse
possession.
17. Having regard to the totality of the facts, in our considered
opinion, the First Appellate Court as well as the High Court are not
justified in arriving at the conclusion that the contesting defendants
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have perfected their title by adverse possession. In view of the same,
the judgment of the High Court as also the judgment of the 9 th
Additional District Judge, Bhojpur at Arrah are set aside.
18. The judgments of the Trial Court i.e. the Court of Munsif III,
Arrah (Bhojpur) in Title Suit No.64/89 is restored. Appeal is allowed
accordingly.
..������������..��.J.
[N.V. RAMANA]
..���������������.J.
[MOHAN M. SHANTANAGOUDAR]
NEW DELHI;
AUGUST 21, 2018.
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ITEM NO.104 COURT NO.7 SECTION XVI
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 7266/2013
RAM NAGINA RAI & ANR. Appellant(s)
VERSUS
DEO KUMAR RAI (D) BY LRS. & ANR. Respondent(s)
Date : 21-08-2018 This appeal was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE N.V. RAMANA
HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR
For Appellant(s)
Mr. Dhruv Paul, Adv.
Mr. Ranjan Mukherjee, AOR (Not present)
For Respondent(s)
Mr. Vijay Kumar, Adv.
Mr. Thomas O., Adv.
For Mr. Vishwajit Singh, AOR
UPON hearing the counsel the Court made the following
O R D E R
This appeal is allowed in terms of the signed order.
(SUKHBIR PAUL KAUR) (RAJ RANI NEGI)
AR CUM PS ASSISTANT REGISTRAR
(Signed order is placed on the file)
