LAW FOR ALL

Letters Patent (as applicable to the High Court of Andhra Pradesh): Clause 10 - Letters Patent Appeal - Power of Division Bench of High Court - HELD: Power of Division Bench, hearing a Letters Patent appeal from judgment of a Single Judge in a first appeal, is not limited only to a question of law u/s 100, 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. Adverse Possession: Suit for recovery of possession - Defendants' pleas that they purchased the property and, alternatively, perfected title by adverse possession claiming to have come in possession under agreement of sale - HELD: Both the pleas have not been substantiated - Neither the purported sale deed nor the agreement of sale have been placed on record. Adverse possession - Ingredients of - Explained - HELD: Animus possidendi is a requisite ingredient of adverse possession - Mere possession does not ripen into possessory title until possessor holds property adverse to the title of true owner for a period of 12 years - 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 that the possession was open and undisturbed - A person pleading adverse possession has no equities in his favour and he has to plead and establish clearly all necessary facts to establish adverse possession - Plea of adverse possession is not a pure question of law but a blended one of facts and law - Equities - Pleadings. Plaintiffs no. 1 and 2, the mother and the son, filed a suit against the brother and the sister of plaintiff no. 2 (defendants no. 1 and 2, respectively) for recovery of possession in respect of certain properties, including four acres of land pertaining to R.S. No. 44/3 (the land in dispute) situate in their village. Their case was that defendant No. 1 was looking after the land in dispute, but when he declined to deliver possession of the land in dispute, they filed a suit for recovery of possession and mesne profit. The plea of defendant no. 1 was that he purchased the land in dispute under a stamped agreement from `VR', the father of plaintiff no. 1 and husband of plaintiff no. 2, for Rs.1600/-; that he paid Rs.1,000/- to `VR' and a sum of Rs.225/- to one `BC' who was the tenant and in possession of the land in dispute and the said tenant relinquished his possession and delivered the land to defendant No. 1; and that he had perfected his title by adverse possession. Though no issue of adverse possession was framed, but the trial court dismissed the suit, holding that title to the plaintiffs even if proved, got extinguished by adverse possession. The appeal filed by the plaintiffs was dismissed by the Single Judge of the High Court. However, their Letters Patent Appeal was allowed by the Division Bench of the High Court and the suit was decreed. In the appeal filed by the heirs and legal representatives of defendant No.1, it was contended for the appellants 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; and 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 Letters Patent Appeal.- Dismissing the appeal, the Court HELD: 1. The Division Bench of the High Court rightly held that the "power of the Division Bench hearing a Letters Patent appeal under Clause 10 from the judgment of a Single Judge in a first appeal is not limited only to a question of law u/s 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. [para 10] [932-E-F] Asha Devi v. Dukhi Sao 1975 (1) SCR611= AIR 1974 SC 2048: (1974) 2 SCC 492 - relied on. 2.1. 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 publicity 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 he does that, the burden shifts on the defendant to establish that he has perfected his title by adverse possession. [para 14] [935-B-D] 2.2. 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, is 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 that the possession was open and undisturbed. [para 14] [935-E-F] T. Anjanappa v. Somalingappa 2006 (5 ) Suppl. SCR200 = (2006) 7 SCC 570 - relied on. 2.3. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, therefore, it is for him to plead and establish clearly 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. [para 14] [935-G-H] Karnataka Board of Wakf vs. Government of India and Ors. 2004 (1) Suppl. SCR255 = (2004) 10 SCC 779 - relied on. 2.4. In the instant case, the appellants have miserably failed to prove that they have perfected their title by adverse possession. It is significant to note that initial plea of the appellants was that they had purchased the property from the original owner, alternatively, by virtue of agreement of sale they came in possession of the property. Both these pleas have not been substantiated. Neither the purported sale deed nor agreement of sale have been placed on record. [para 15] [936-B] 2.5. As regards the plea of adverse possession, the appellants' case is that out of the consideration money of Rs.1,600/-, defendant no. 1 paid Rs.1,000/- to the owner and on payment of Rs. 225/- to the tenant in possession, namely, `BC', 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. The appellants are required to prove that their possession was adverse to the true owner. [para 15] [936-D] 2.6. The plea of the appellants on the basis of the purported order dated 18.2.1954 of the Settlement Officer directing for issuance of Patta in favour of defendant no. 1 also does not advance their case. It is not the appellants' case that plaintiffs were party before the Settlement Officer. Further, it is not in dispute that no Patta was issued in favour of the defendant no. 1, on the other hand, and in fact, rough Patta was issued in favour of plaintiff no. 2. Thus, the appellants have not proved the necessary ingredients to establish their title by adverse possession. The Division Bench of the High Court is absolutely right in rejecting the appellants' plea of adverse possession and decreeing the plaintiffs' suit. [para 15] [936-E-F] Case Law Reference: 1975 (1) SCR611 relied on para 10 2006 (5) Suppl. SCR200 relied on para 12 2004 (1) Suppl. SCR255 relied on para 13 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6039 of 2003. From the Judgment & Order dated 19.12.2001 of the High Court of Andhra Pradesh at Hyderabad in LPA No. 438 of 1988. Ananga Bhattacharya, Rohit R. (for V.G. Pragasam) for the Appellants. Abid Ali Beeran, Neeru Vaid for the Respondent.