Allahabad High Court
Rama Shankar And Another vs Om Prakash Likhdhari And 8 Ors. on 5 April, 2013
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 34 Case :- SECOND APPEAL No. - 304 of 2013 Appellant :- Rama Shankar And Another Respondent :- Om Prakash Likhdhari And 8 Ors. Appellant Counsel :- M.K. Gupta,Pushkar Srivastava Respondent Counsel :- Arvind Srivastava Hon'ble Sudhir Agarwal,J.
1. Heard Sri Pankaj Agarwal, Advocate holding brief on behalf of Sri M.K. Gupta, learned counsel for the appellants and Sri Arvind Srivastava, Advocate for respondents.
2. The following three issues have been raised by Sri Pankaj Agarwal, Advocate, on behalf of the appellants:
(I) The plaintiffs specifically pleaded adverse possession over both the properties, i.e., Chabutara and Khandahar but Lower Appellate Court in a wholly illegal manner has rejected the said plea.
(II) Original Suit No. 703 of 1975 was instituted by Gopal Dharamshala Trust wherein plaintiffs-appellants claimed that they are owner and in possession thereof. The said suit was dismissed. Hence it would operate as res judicata against all the defendants and that issue once operate as res judicata against them, the courts below could not have looked into this aspect of the matter afresh but ought to have granted injunction holding plaintiffs-appellants, owner in respect of both the properties.
(III) That the disputed Chabutara was a part of plot no. 109, as held by Trial Court while deciding issue No. 1, but Lower Appellate Court held plaintiffs only in possession thereof and not as owner, without reversing findings and reasons assigned by Trial Court.
3 Sri Arvind Srivastava, learned counsel for the respondents, on the contrary, submitted that there was no evidence placed by plaintiffs-appellants before courts below to show that Chabutara was part and parcel of plot no. 109. The Trial Court in absence of any evidence, on conjectural basis, decided issue no. 1 which has rightly been discarded and reversed by Lower Appellate Court. With respect to plea of adverse possession, he submitted that, there was no pleading satisfying the legal requirements and, therefore, plaintiffs-appellants could not have been conferred any right on the basis of doctrine of adverse possession. So far as issue of res judicata is concerned, he submitted that the suit was filed only by Trust and other defendants were not parties therein. The suit was dismissed in default. Therefore, it shall not operate as res judicata against all the defendants who were not even party therein.
4. In my view the arguments advanced by learned counsel for appellants though per se, may involve some questions of law but either none is arising in this case, or, well settled and require only application, and in any case cannot be said to be substantial questions of law arising in this case, hence this appeal may deserve to be dismissed in limine under Order 41 Rule 11 of the Code of Civil Procedure (hereinafter referred to as the "Code").
5. Under Section 100 of Code, a second appeal can be entertained by this Court only if it involves substantial question of law. In other words it does not confer any jurisdiction on this Court to interfere with pure questions of fact, which have been considered and adjudicated by courts below after appreciation of evidence recording well considered findings. If there is a finding of fact, based on proper appreciation of evidence, and, material on record, and no perversity, illegality or irregularity in those findings are found, the second appeal is not at all entertainable by this Court under Section 100 of the Code. Even mere illegality or irregularity in findings would not permit interference. They require something more.
6. There are two situations in which, ordinarily, interference with findings of fact is permissible, namely, (a) when material or relevant evidence is not considered, which if considered, would have led to opposite conclusion, and (b) where a finding has been arrived at by court below by placing reliance on inadmissible evidence, which if would have been omitted, an opposite conclusion would have been possible. I derive these principles from some of the authorities of Apex Court and, briefly, it would be appropriate to refer the same.
7. In Dilbagrai Punjabi Vs. Sharad Chandra, AIR 1988 SC 1858, the Court affirmed the observations of High Court that First Appellate Court is under a duty to examine entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue, and the error which arises is of magnitude that it gives birth to a substantial question of law, the High Court would be entitled to set aside the finding.
8. In Jagdish Singh Vs. Nathu Singh, AIR 1992 SC 1604, it was said, where finding by court of facts is vitiated by non consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper finding.
9. In Sri Chand Gupta Vs. Gulzar Singh, AIR 1992 SC 123 the Court upheld interference by High Court in second appeal where the Lower Appellate Court relied an admission of third party treating it as binding on the defendant though it was inadmissible against the said defendant.
10. In Sundra Naicka Vadiyar Vs. Ramaswami Ayyar, AIR 1994 SC 532 the Court said where certain vital documents for deciding the question of possession were ignored, such as compromise, an order of revenue Court relying on oral evidence was unjustified.
11. In Ishwar Dass Jain (Dead) through Lrs. Vs. Sohan Lal (Dead) through Lrs., 2000(1) SCC 434 the Court in paras 11 and 13 of the judgment clearly mentioned two situations in which inference with findings of fact is permissible. It is said:
"11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion. . . . ."
"13. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate Court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. . . ."
12. In Govindaraju Vs. Mariamman, 2005(2) SCC 500 the Court said that existence of substantial question of law is the sine qua non for exercise of jurisdiction under Section 100 of the Code. If a second appeal is entertained under Section 100 without framing substantial questions of law then it would be illegal and would amount to failure or abdication of duty cast on the Court. The Court relied on its earlier decisions in Kshitish Chandra Purkait Vs. Santosh Kumar Purkait & Ors., 1997(5) SCC 438; Panchugopal Barua Vs. Umesh Chandra Goswami 1997(4) SCC 413; and, Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar 1999(3) SCC 722.
13. Section 100 of the Code, first of all, places an obligation upon appellant to precisely state in the memorandum of appeal a substantial question of law involved therein which he proposes to urge before the Court. After hearing him this Court has to satisfy itself that a substantial question of law is involved in the case and it shall formulate that question. This is the next stage. This Court after hearing appellant may come to the conclusion that the question stated in memorandum of appeal itself constitutes a substantial question of law but then it has to be formulated by Court on its own. It will become a substantial question of law only when the Court has satisfied itself and put its seal by formulating it. The mere substantial question of law is not sufficient but it must be one such question which is involved in the case. An abstract question of law may be substantial but unless it is one which is involved in the case concerned, it will not satisfy the requirement of Section 100(4) of the Code.
14. In Santosh Hazari Vs. Purushottam Tiwari, 2001(3) SCC 179 the Court considered what the phrase "substantial question of law" means. It says that the phrase is not defined in the Code. The word "substantial", as qualifying question of law, means-of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with-technical, of no substances or consequence, or academic merely.
15. A Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju, AIR 1951 Madras 969 considered this term and said, "when a question of law is fairly arguable, where there is room for difference of opinion or where the Court thought it necessary to deal with that question at some length and discuss an alternative view, then the question would be a substantial question of law. On the other hand, if the question was practically covered by decision of highest Court or if general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of case, it could not be a substantial question of law."
16. The above observations were affirmed and concurred by a Constitution Bench in Sir Chunilal Mehta and Sons Ltd. Vs. The Century Spinning and Manufacturing Company Ltd. AIR 1962 SC 1314. Referring to above authorities, the Court in Santosh Hazari (supra) said:
"A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."
17. The decision in Santosh Hazari (supra) has been followed in Govindaraju (supra) and Thiagarajan and others Vs. Sri Venugopalswamay B. Koll and others, AIR 2004 SC 1913.
18. In order to satisfy the above requirement, arise in the matter, firstly, it must be shown that there are pleadings on the issue, evidence was led by parties and thereafter the courts below considered and affirmed opinion, one or the other way. Though in my view the issues raised by Sri Pankaj Agrawal, learned counsel for the appellants, prima facie, do not satisfy the requirement of Section 100 C.P.C., i.e, the substantial question of law, having arisen in this case, but since parties are represented, in order to settle the matter finally and to avoid further litigation so that rights of parties may be settled once and for all, I formulate the aforesaid issues as substantial questions of law and proceed herewith to decide the same.
19. The question no. 1 relates to plea of adverse possession. Considering the present case and the issues argued by Sri Pankaj Agrawal, learned counsel for the appellants, I find that in the context of adverse possession, the pleadings are contained in para 3 of plaint. It says that plaintiffs and their ancestors are in possession of disputed property, namely, Khandahar, fore more than 50 years and since the plaintiffs have attained state of understanding, it is almost more than 30 years that they are in possession of Khandahar, openly and without any interruption or interference or obstruction by anyone. It further says that defendants no. 1 to 3 never possessed any right over disputed property and if they had, the same had already extinguished. The moot question would be, can it be said that aforesaid pleadings satisfy the basic requirement, so as to attract principle of adverse possession.
20. The principle of adverse possession though had been recognized in India since the time ancient, but for the purpose of present case it would be appropriate to go in the past only since when the codified law has been enacted, i.e., in British India, by the then rulers. The statute, which is now operating the field, has been enacted, after enforcement and adoption of Constitution, by people of India i.e. after independence.
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 Vs. Oditchurn Paul 1849 (Cases in the Privy Council on Appeal from the East Indies) 43.
22. For British Indian Territory the first codified statute dealing with limitation was Act No. 14 of 1959. It however provided limitation of suits only. It did not contain any recognition of a right of immoveable property by prescription. It was, however, modified by Act 9 of 1871 and, for the first time, gave some recognition to the doctrine of prescription, i.e., the doctrine of extinctive prescription as to land and hereditary offices and of positive prescription as to easement. It lived short and was replaced by Act 15 of 1877 which extended principle of extinctive prescription to moveable property and the principle of positive or acquisitive prescription to profits a prendre.
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.
24. Doctrine of limitation and prescription is based upon two broad considerations. The first, there is a presumption that a right not exercised for a long time is non-existent. Where a person has not been in possession of a particular property for a long time, the presumption is that he is not the owner thereof. The reason is that owners are usually possessors and possessors are usually owners. Possession being normally evidence of ownership, the longer the possession has continued the greater is its evidentiary value. The legislature, it appears, therefore, thought it proper to confer upon such evidence of possession for a particular time, a conclusive force. Lapse of time is recognised as creative and destructive of right instead of merely an evidence for and against their existence. The other consideration on which the doctrine of limitation and prescription may be said to be based is that title to property and matters of right in general should not be in a state of constant uncertainty, doubt and suspense. It would not be in the interest of public at large. The object of the statute of limitation is preventive and not creative but in a matter covered by the principle of "adverse possession" it also creates. It interposes a statutory bar after a certain period and gives a quietus to suits to enforce an existing right.
25. Act 15 of 1877 was replaced by Limitation Act, 1908 (hereinafter referred to as the "LA 1908") and ultimately the Limitation Act, 1963 (hereinafter referred to as the "LA 1963") is holding the field repealing all earlier enactments. The provision dealing with extinction of title after expiry of a particular period due to hostile possession of another and transfer of title to such persons in possession is recognized in Section 28 of LA 1908 and similar provision is contained in Section 27 of LA 1963.
26. The doctrine of limitation is founded on considerations of public policy and expediency. It does not give a right where there exist none, but to impose a bar after a certain period to the remedy for enforcing an existing right. The object is to compel litigants to be diligent for seeking remedies in Courts of law if there is any infringement of their right and to prevent and prohibit stale claims. It fixes a life span for remedy for redressal of the legal injury, if suffered, but not to continue such remedy for an immemorial length of time. Rules of limitation do not destroy rights of the parties and do not create substantive rights if none existed already. However, there is one exception i.e. Section 28 of L.A. 1908 (Section 27 of LA 1963), which provides that at the determination of the period prescribed for instituting suit for possession of any property, his right to such property shall stand extinguished and the person in possession, after expiry of the such period, will stand conferred title. The law of limitation is enshrined in the maxim "interest reipublicae ut sit finis litium" (it is for the general welfare that a period be part to litigation).
27. Mere expiry of limitation could have extinguished remedy but the principle embodied in Section 28 of LA 1908 (Section 27 of LA 1963), extinguishes the right also and thereby makes the said general principle inapplicable. Once the right of getting possession extinguished it cannot be revived by entering into possession again [See Salamat Raj Vs. Nur Mohamed Khan (1934) ILR 9 Lucknow 475; Ram Murti Vs. Puran Singh AIR 1963 Punjab 393; Nanhekhan Vs. Sanpat AIR 1954 Hyd 45 (FB) and Bailochan Karan Vs. Bansat Kumari Naik 1999 (2) SCC 310].
28. Privy Council in Sundar Vs. Parbati, (1889) 12 All 51 agreed with the view of this court that possession is a good title against all the world except the person who can show a better title. By reason of his possession such person has an interest which can be sold or devised.
29. The limitation prescribed for adverse possession is not the limitation for maintainability of suit. The former matures a right in a person on happening of certain events continued for a period prescribed in Act, 1963. It is a consequence of principle of prescription. The later is the period whereafter the remedy for redressal of a grievance is lost to a person. I would elaborate both these aspects to make the two aspects beyond any possible confusion and misunderstanding.
30. To understand the concept of "adverse possession" it would be necessary to have a clear idea about the concept of "possession" and "ownership" in respect of immovable property.
31. In Muslim law, a man in possession of property although by wrongful means has obvious advantages over the possessor. The possessor is entitled to protection against the whole world except the true owner. [The Principles of Mohammedan Jurisprudence (1911)].
32. In 'Ancient Indian Law' possession was nothing but a legal contrivance based on the considerations of dharma. Use and enjoyment of property was restricted and controlled by the holy scriptures. In old Hindu law possession was of two kinds. (a) with title; and (b) without title where possession continued for three generations. Enough importance, however, was given to title (agama) to prove possession. Katyayana said, "there can be no branches without root, and possession is the branch".
33. In Modern era, various jurists have dealt with the term "possession" being an important aspect of individual's rights.
34. "Ihering" defines possession, "whenever a person looks like an owner in relation to a thing he has possession, unless possession is denied to him by rules of law based on convenience". Apparently this definition does not give any explicit idea on the subject. It only states that the concept of possession is an ever changing concept having different meaning for different purposes and different frames of law.
35. "Pollock" says, "In common speech a man is said to be in possession of anything of which he has the apparent control or from the use of which he has the apparent powers of excluding others". The stress laid by Pollock on possession is not on animus but on de facto control.
36. "Savigny" defines possession, "intention coupled with physical power to exclude others from the use of material object." Apparently this definition involves both the elements namely, corpus possesssion is and animus domini.
37. The German Jurist ''Savigny' laid down that all property is founded on adverse possession ripened by prescription. The concept of ownership accordingly as observed by him involve three elements-Possession, Adverseness of Possession, (that is a holding not permissive or subordinate, but exclusive against the world), and Prescription, or a period of time during which the Adverse Possession has uninterruptedly continued.
38. "Holmes" opined that possession is a conception which is only less important than contract.
39. According to Salmond on "Jurisprudence", 12th Edition (1966) (First Edition published in 1902) by P.J. Fitzgerald, Indian Economy Reprint 2006 published by Universal Law Publishing Co. Pvt. Ltd. Delhi (hereinafter referred to as "Salmond's Jurisprudence"), page 51, it says, the concept of "possession" is as difficult to define as it is essential to protect. It is an abstract notion and is not purely a legal concept. It is both a legal and a non-legal or a pre-legal concept. He tried to explain the concept of possession with reference to different factual and legal concepts.
40. The first one is "possession in fact". It is a relationship between a person and a thing. The things one possesses in his hand or which one has in his control like clothes he is wearing, objects he is keeping in his pocket etc. For such things it can be said that he is in possession of the things in fact. To possess one would have to have a thing under his physical control. If one captures a wild animal, he gets possession of it but if the animal escapes from his control, he looses possession. It implies that things not amenable in any manner to human control cannot form the subject matter of possession like one cannot possess sun, moon or the stars etc. Extending the above concept, "Salmond" says that one can have a thing in his control without actually holding or using it at every given moment of time like possession of a coat even if one has taken it off and put down or kept in the cupboard. Even if one falls asleep, the possession of the coat would remain with him. If one is in such a position, has to be able in the normal course of events to resume actual control when one desires, the possession in fact of the thing is there. Another factor relevant to the assessment of control is the power of excluding other people. The amount of power that is necessary varies according to the nature of the object.
41. The possession consisted of a "corpus possessionis" and "animus possidendi". The former comprised both, the power to use the thing possessed and the existence of grounds for the expectation that the possessor's use will not be interfered with. The latter consisted of an intent to appropriate to oneself the exclusive use of the thing possessed.
42. Then comes "possession in law". A man, in law, would possess only those things which in ordinary language he would be said to possess. But then the possessor can be given certain legal rights such as a right to continue in possession free from interference by others. This primary right in rem can be supported by various sanctioning rights in personam against those who violates the possessor's primary right; can be given a right for compensation for interference and a dispossession and the right to have his possession restored from the encroacher.
43. Another facet of possession is "immediate" or "mediate possession". The possession held by one through another is termed "mediate" while that acquired or retained directly or personally can be said to be "immediate or direct". There is a maxim of civil law that two persons could not be in possession of the same thing at the same time. (Plures eandem rem in solidum possidere non possunt). As a general proposition exclusiveness is of the essence of possession. Two adverse claims of exclusive use cannot both be effectually realised at the same time. There are, however, certain exceptions, namely, in the case of mediate possession two persons are in possession of the same thing at the same time. Every mediate possessor stands in relation to a direct possessor through whom he holds. Two or more persons may possess the same thing in common just as they may own it in common.
44. Next is "incorporeal possession". It is commonly called the possession of a right and is distinct from the "corporeal possession" which is a possession of the thing.
45. In "The Elementary Principles of Jurisprudence" by G.W. Keeton, II Edition (1949) published by Sir Isaac Pitman and Sons Ltd. London (First published in 1930), "possession" has been dealt in Chapter XV. It says:
"'Possession,' says an old proverb, "is nine points of law." Put in another way, this implies that he who has conscious control of an object need only surrender his control to one who can establish a superior claim in law."
46. Thus the essentials of possession in the first instance include a fact to be established like any other fact. Whether it exists in a particular case or not will depend on the degree of control exercised by the person designated as possessor. If his control is such that he effectively excludes interference by others then he has possession. Thus the possession in order to show its existences must show "corpus possessionis" and an "animus possidendi".
47. Corpus possessionis means that there exists such physical contact of the thing by the possessor as to give rise to the reasonable assumption that other persons will not interfere with it. Existence of corpus broadly depends on (1) upon the nature of the thing itself, and the probability that others will refrain from interfering with the enjoyment of it; (2) possession of real property, i.e., when a man sets foot over the threshold of a house, or crosses the boundary line of his estate, provided that there exist no factors negativing his control, for example the continuance in occupation of one who denies his right; and (3) acquisition of physical control over the objects it encloses. Corpus, therefore, depends more upon the general expectations that others will not interfere with an individual control over a thing, then upon the physical capacity of an individual to exclude others.
48. The animus possidendi is the conscious intention of an individual to exclude others from the control of an object.
49. Possession confers on the possessor all the rights of the owner except as against the owner and prior possessors. "Possession in law" has the advantage of being a root of title.
50. There is also a concept of "constructive possession" which is depicted by a symbolic act. It has been narrated with an illustration that delivery of keys of a building may give right to constructive possession of all the contents, to the transferee of the key.
51. There is a distinction between the terms "possession", "occupation" and "control". The distinction between "possession" and "occupation" was considered in Seth Narainbhai Ichharam Kurmi and another Vs. Narbada Prasad Sheosahai Pande and others, AIR 1941 Nagpur 357 and the Court held:
"Bare occupation and possession are two different things. The concept of possession, at any rate as it is understood in legal terminology, is a complex one which need not include actual occupation. It comprises rather the right to possess, and the right and ability to exclude others from possession and control coupled with a mental element, namely, the animus possidendi, that is to say, knowledge of these rights and the desire and intention of exercising them if need be. The adverse possession of which the law speaks does not necessarily denote actual physical ouster from occupation but an ouster from all those rights which constitute possession in law. It is true that physical occupation is ordinarily the best and the most conclusive proof of possession in this sense but the two are not the same. It is also true that there must always be physical ouster from these rights but that does not necessarily import physical ouster from occupation especially when this is of just a small room or two in a house and when this occupation is shared with others. The nature of the ouster and the quantum necessary naturally varies in each case."
52. The distinction between "possession", "occupation" or "control" was also considered in Sumatibai Wasudeo Bachuwar Vs. Emperor, AIR (31) 1944 Bom. 125 and the Court held:
"Some documents containing perjudicial reports were found in a box in the house occupied by the applicant and her husband. When the house was raided by the police, the husband was out and the applicant (wife) produced the keys with one of which the box could be opened. In addition to perjudicial reports, there were some letters in the box addressed to the applicant. Held,. (1) that, prima facie, the box containing the documents would be in the possession of the husband and the mere fact that in his absence he had left the keys with the applicant (wife) would not make her in joint possession with himself; nor did the fact that there were letters in the box addressed to the wife mean that she was in joint possession of all the contents of the box; (2) that the wife was in the circumstances in possession of the box within the meaning of R. 39(1) of the Defence of India Rules; (3) that occupation in R. 39 (2) of the Defence of India Rules meant legal occupation, and the applicant could not be held to be in occupation or control of the house so as to render her guilty under R. 39 of the Defence of India Rules."
53. A person other than owner, if continued to have possession of immoveable property for a period as prescribed in a Statute providing limitation, openly, without any interruption and interference from the owner, though he has knowledge of such possession, would crystallise in ownership after the expiry of the prescribed period or limitation, if the real owner has not taken any action for re-entry and he shall be denuded of his title to the property in law. 'Permissible possession' shall not mature a title since it cannot be treated to be an 'adverse possession'. Such possession, for however length of time be continued, shall not either be converted into adverse possession or a title. It is only the hostile possession which is one of the condition for adverse possession.
54. Ordinarily an owner of property is presumed to be in possession and such presumption is in his favour where there is nothing to the contrary. But where a plaintiff himself admits that he has been dispossessed by the defendant and no longer in proprietary possession of the property in suit at the time of institution of the suit, the Court shall not start with the presumption in his favour that the possession of property was with him. Mere adverse entry in revenue papers is not relevant for proof of adverse possession. Possession is prima facie evidence of title and has to be pleaded specifically with all its necessary ingredients namely, hostile, open, actual and continuous.
55. The consequences and conditions precedent as also the requirement of law in an action founded on the plea of adverse possession have been discussed by Courts time and again and a retrospect of some of the important decisions which provides binding guidelines on the aforesaid aspects may be referred to hereinbelow.
56. In Gunga Gobind Mundul Vs. Collector of the 24-pergunnahs 11 Moore's I.A., 345 it was observed by the Privy Council that continuous possession for more than twelve years not only bars the remedy, but practically extinguishes the title of the true owner in favour of the possessor. This was followed by a Division Bench of Calcutta High Court in Gossain Das Chunder Vs. Issur Chunder Nath 1877 III ILR 3 (Cal.) 224.
57. In Gossain Das Chunder (supra) the High Court held that 12 years continuous possession of land by wrong doer not only bars the remedy but also extinguishes the title of the rightful owner. It confers a good title upon the wrong doer.
58. In Bhupendra Narayan Sinha Vs. Rajeswar Prosad Bhakat & Ors. AIR 1931 Privy Council 162 the Privy Council held where a person without any colour of right wrongfully takes possession as a trespasser of a property of another, any title which he may require by adverse possession will be strictly limited to what he has actually so possessed. That was an interesting case of dispute of ownership in respect to subsoil. It was held that there can be separate ownership of different strata of subsoil, at all events where minerals are involved. If a grant of surface right was given by the owner and the licensee is given possession to carry out the said right, by quarrying stones etc. possession of subsoil in the eyes of law remain with the owner though it is only a constructive possession but in the absence of anything to show that with the knowledge of the owner the licensee held possession of subsoil and minerals therein and continued with that possession for statutory period of limitation to continue its ownership such plea of adverse possession in respect to subsoil cannot be accepted.
59. In Basant Kumar Roy Vs. Secretary of State for India & others AIR 1917 PC 18, it was held:
"An exclusive adverse possession for a sufficient period may be made out, in spite of occasional acts done by the former owner on the ground for a specific purpose from time to time. Conversely; acts which prima facie are acts of dispossession may under particular circumstances fall short of evidencing any kind of ouster. They may be susceptible of another explanation, bear some other characters or have some other object. ... If, as their Lordships think, no dispossession occurred, except possibly within twelve years before the commencement of this suit, article 144 is the article applicable, and not article 142."
60. In Board Nageshwar Bux Roy Vs. Bengal Coal Co. AIR 1931 PC 18 the observation in respect of adverse possession similar to what has been noted above were made and the said judgement was followed in Bhupendra Narayan Sinha (supra).
61. The law in respect of adverse possession, therefore, is now well settled. It should be nec vi nec clam nec precario. (Secretary of State for India Vs. Debendra Lal Khan, AIR 1934 PC 23, page 25). This decision has been referred and followed by the Apex Court in P. Lakshmi Reddy Vs. L.Lakshmi Reddy AIR 1957 SC 314 (para 4). The Court further says that the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. [Radhamoni Debi Vs. Collector of Khulna, 27 Ind App. 136 at p. 140 (PC)]. The case before the Apex Court in P. Lakshmi Reddy (supra) was that of co-heirs where the plea of adverse possession was set up. In this regard it was held:
"But it is well settled in order, to establish adverse possession of one-co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of the joint title. The co-heir in possession cannot render his possession adverse to the other co-heir, not in possession, merely by any secret hostile animus of his own part in derogation of the other co-heir title. It is settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster."
62. In Thakur Kishan Singh Vs. Arvind Kumar, AIR 1995 SC 73 the Court said:
"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."
63. In Sheo Raj Chamar & another Vs. Mudeer Khan & others AIR 1934 All. 868, it was held:
""If, indeed it did, the defendants have acquired a right by sheer adverse possession held and maintained for more than 12 years. The adverse possession to be effective need not be for the full proprietary right."
64. In Saroop Singh Vs. Banto and others, 2005(8) SCC 330 the Court held in para 30:
"30. Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. . . . ."
65. In T. Anjanappa and others Vs. Somalingappa and another 2006 (7) SCC 570 the pre-conditions for taking plea of adverse possession has been summarised as under:
"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 to as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverese possession are that such possession in denial 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."
66. In P.T. Munichikkanna Reddy & Ors. Vs. Revamma & Ors. AIR 2007 SC 1753 it was held:
"It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper-owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper-owner."
67. In the above case the Apex Court discussed the law in detail and observed:
"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." (Para 5) "Efficacy of adverse possession law in most jurisdictions depend on strong limitation statutes by operation of which right to access the court expires through effluxion of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title."(Para 6) "Therefore, to assess a claim of adverse possession, two pronged enquiry is required:
1. Application of limitation provision thereby jurisprudentially "willful neglect" element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.
2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property" (Para 9)
68. In para 12 of the judgment, referring to its earlier decision in T. Anjanappa (supra), the Court held that if the defendants are not sure who is the true owner, the question of their being in hostile possession and the question of denying title of the true owner do not arise. It also referred on this aspect its earlier decision in Des Raj and others vs. Bhagat Ram(Dead) by LRs. And others 2007(3) SCALE 371 and Govindammal v. R. Perumal Chettiar and others JT 2006(1) SC 121.
69. In Annakili Vs. A. Vedanayagam and others, AIR 2008 SC 346 the Court pointed out that a claim of adverse possession has two elements (i) the possession of the defendant becomes adverse to the plaintiff; and (ii) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi is held to be a requisite ingredient of adverse possession well known in law. The Court held:
"It is now a well settled principle of law that mere possession of the land would not ripen into possessor title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more do not ripen into a title."
70. In Secretary of State Vs. Debendra Lal Khan (supra) it was held that the period of possession of a series of independent trespassers cannot be added together and utilized by the last possessor to make up the statutory total period of adverse possession. This was followed in Wahid Ali & another Vs. Mahboob Ali Khan (supra).
71. In (Sm.) Bibhabati Devi Vs. Ramendra Narayan Roy & others AIR 1947 Privy Council 19 it was observed that in order to claim a right of ownership applying the principle of adverse possession it is a condition precedent that the possession must be adverse to a living person. Herein the appellant was possessing the property under a mosque after the death of the defendant, it was held that the possession cannot be said to be adverse.
72. In Chhote Khan & others Vs. Mal Khan & others AIR 1954 SC 575, the Court observed that no question of adverse possession arises where the possession is held under an arrangement between the co-sharers.
73. The Court in P. Lakshmi Reddy (supra) quoted with approval Mitra's Tagore Law Lectures on Limitation and Prescription (6th Edition) Vol. I, Lecture VI, at page 159, quoting from Angell on Limitation:
"An adverse holding is an actual and exclusive appropriation of land commenced and continued under a claim of right, either under an openly avowed claim, or under a constructive claim (arising from the acts and circumstances attending the appropriation), to hold the land against him (sic) who was in possession. (Angell, sections 390 and 398). It is the intention to claim adversely accompanied by such an invasion of the rights of the opposite party as gives him a cause of action which constitutes adverse possession."
74. It further held:
"Consonant with this principle the commencement of adverse possession, in favour of a person, implies that that person is in actual possession, at the time, with a notorious hostile claim of exclusive title, to repel which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until site animus."
75. In Karbalai Begum Vs. Mohd. Sayeed (1980) 4 SCC 396 in the context of a co-sharer, it was held:
"...It is well settled that mere non- participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession."
76. In Annasaheb Bapusaheb Patil Vs. Balwant (1995) 2 SCC 543 the Court, in para 15, 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."
77. In Vidya Devi Vs. Prem Prakash (1995) 4 SCC 496 the Court in paras 27 and 28 held:
"27...it will be seen that in order that the possession of co-owner may be adverse to others, it is necessary that there should be ouster or something equivalent to it. This was also the observation of the Supreme Court in P. Lakshmi Reddy case which has since been followed in Mohd. Zainulabudeen v. Sayed Ahmed Mohideen.
28. 'Ouster' does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law."
78. In making above observations, the Court also relied on its earlier decisions in P. Lakshmi Reddy (supra) and Mohd. Zainulabudeen Vs. Sayed Ahmad Mohideen (1990) 1 SCC 345.
79. In Roop Singh Vs. Ram Singh (2000) 3 SCC 708 it was held that if the defendant got the possession of suit land as a lessee or under a batai agreement then from the permissive possession, it is for him to establish by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of the real owner. Mere possession for a long time does not result in converting permissive possession into adverse possession. The Court relied on its earlier decisions in Thakur Kishan Singh (supra).
80. In Darshan Singh Vs. Gujjar Singh (2002) 2 SCC 62 in para 7 and 9, the Court held:
"...It is well settled that if a co-sharer is in possession of the entire property, his possession cannot be deemed to be adverse for other co-sharers unless there has been an ouster of other co-sharers."
"9. In our view, the correct legal position is that possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he possesses the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of the other co-sharers was denied."
81. In Amarendra Pratap Singh Vs. Tej Bahadur Prajapati and others, AIR 2004 SC 3782 = (2004) 10 SCC 65 considering as to what is adverse possession, the Court in para 22 observed :
"What is adverse possession? Every possession is not, in law, adverse possession. Under Article 65 of the Limitation Act, 1963, a suit for possession of immovable property or any interest therein based on title can be instituted within a period of 12 years calculated from the date when the possession of the defendant becomes adverse to the plaintiff. By virtue of Section 27 of the Limitation Act, at the determination of the period limited by the Act to any person for instituting a suit for possession of any property, his right to such property stands extinguished. The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. A person, though having no right to enter into possession of the property of someone else, does so and continues in possession setting up title in himself and adversely to the title of the owner, commences prescribing title into himself and such prescription having continued for a period of 12 years, he acquires title not on his own but on account of the default or inaction on part of the real owner, which stretched over a period of 12 years results into extinguishing of the latter's title. It is that extinguished title of the real owner which comes to vest in the wrongdoer. The law does not intend to confer any premium on the wrong doing of a person in wrongful possession; it pronounces the penalty of extinction of title on the person who though entitled to assert his right and remove the wrong doer and re-enter into possession, has defaulted and remained inactive for a period of 12 years, which the law considers reasonable for attracting the said penalty. Inaction for a period of 12 years is treated by the Doctrine of Adverse Possession as evidence of the loss of desire on the part of the rightful owner to assert his ownership and reclaim possession."
82. However, the Court further observed that if property, by virtue of some statutory provisions or otherwise, is alienable, the plea of adverse possession may not be available and held. :
"23. The nature of the property, the nature of title vesting in the rightful owner, the kind of possession which the adverse possessor is exercising, are all relevant factors which enter into consideration for attracting applicability of the Doctrine of Adverse Possession. The right in the property ought to be one which is alienable and is capable of being acquired by the competitor. Adverse possession operates on an alienable right. The right stands alienated by operation of law, for it was capable of being alienated voluntarily and is sought to be recognized by doctrine of adverse possession as having been alienated involuntarily, by default and inaction on the part of the rightful claimant, who knows actually or constructively of the wrongful acts of the competitor and yet sits idle. Such inaction or default in taking care of one's own rights over property is also capable of being called a manner of 'dealing' with one's property which results in extinguishing one's title in property and vesting the same in the wrong doer in possession of property and thus amounts to 'transfer of immovable property' in the wider sense assignable in the context of social welfare legislation enacted with the object of protecting a weaker section."
83. From the above discussion what boils down is that the concept of adverse possession contemplates a hostile possession, i.e., a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's right and in fact deny the same. A person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. In order to determine whether the act of a person constitutes adverse possession is 'animus in doing that act' and it is most crucial factor. Adverse possession commences in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of owner's right excluded him from the enjoyment of his property. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to be adverse if it can be referred to a lawful title. The persons setting up adverse possession may have been holding under the rightful owner's title, i.e., trustees, guardians, bailiffs or agents, such person cannot set up adverse possession. Burden is on the defendant to prove affirmatively.
84. An occupation of reality is inconsistent with the right of the true owner. Where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner, i.e., with the intention of excluding all persons from it, including the rightful owner, he is in adverse possession of it. Where possession could be referred to a lawful title it shall not be considered to be adverse. The reason is 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 other's title make his possession adverse so as to give himself the benefit of the statute of limitation. 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.
85. Adverse possession is of two kinds. (A) Adverse from the beginning or (B) that become so subsequently. If a mere trespasser takes possession of A's property, and retains it against him, his possession is adverse ab initio. But if A grants a lease of land to B, or B obtains possession of the land as A's bailiff, or guardian, or trustee, his possession can only become adverse by some change in his position. Adverse possession not only entitles the adverse possessor, like every other possessor, to be protected in his possession against all who cannot show a better title, but also, if the adverse possessor remains in possession for a certain period of time produces the effect either of barring the right of the true owner, and thus converting the possessor into the owner, or of depriving the true owner of his right of action to recover his property although the true owner is ignorant of the adverse possessor being in occupation.
86. In Hari Chand Vs. Daulat Ram, AIR 1987 SC 94 the Court held if the encroachment was not new one but the structure was in existence prior to acquiring title over the property, the decree on the basis of adverse possession cannot be granted in favour of the plaintiff. Paras 10 and 11 of the judgment read as under:
"10. On a consideration of these evidences it is quite clear that the disputed kachha wall and the khaprail over it is not a new construction, but existed for over 28 years and the defendant has been living therein as has been deposed to by Ramji Lal vendor of the plaintiff who admitted in his evidence that the land in dispute and the adjoining kachha walls had been affected by salt and the chhappar over the portion shown in red was tiled roof constructed about 28 years back. This is also supported by the evidence of the defendant, D.W. 1, that the wall in dispute was in existence when the partition was effected i.e., 28 years before. On a consideration of these evidences the Trial Court rightly held that the defendant had not trespassed over the land in question nor he had constructed a new wall or khaprail. The trial court also considered the report 57C by the court Amin and held that the wall in question was not a recent construction but it appeared 25-30 years old in its present condition as (is) evident from the said report. The suit was therefore dismissed. The lower appellate court merely considered the partition deed and map Exts. 3/1 and 3/2 respectively and held that the disputed property fell to the share of the plaintiff's vendor and the correctness of the partition map was not challenged in the written statement. The court of appeal below also referred to Amin's map 47 A which showed the encroached portion in red colour as falling within the share of plaintiff's vendor, and held that the defendant encroached on this portion of land marked in red colour, without at all considering the clear evidence of the defendant himself that the wall and the khaprail in question existed for the last 28 years and the defendant has been living there all along. P.W. 1 Ramji Lal himself also admitted that the wall existed for about 28 years as stated by the defendant and the kachha walls and the khaprail has been effected by salt. The lower appellate court though held that P.W. 1 Ramji Lal admitted in cross-examination that towards the north of the land in dispute was the khaprail covered room of Daulat Ram in which Daulat Ram lived, but this does not mean that the wall in dispute exists for the last any certain number of years, although it can be said that it is not a recent construction. Without considering the deposition of defendant No. 1 as well as the report of the Amin 57 C the IInd Addl. Civil Judge, Agra wrongly held that the defendant failed to prove that the wall in dispute and the khaprail existed for the last more than 12 years before the suit. The Civil Judge further held on surmises as "may be that the wall and khaprail have not been raised in May, 1961 as is the plaintiff's case, but they are recent constructions." This decision of the court of appeal below is wholly incorrect being contrary to the evidences on record."
"11. On a consideration of all the evidences on record it is clearly established that the alleged encroachment by construction of kuchha wall and khaprail over it are not a recent construction as alleged to have been made in May 1961. On the other hand, it is crystal clear from the evidences of Ramji Lal P.W. 1 and Daulat Ram D.W. 1 that the disputed wall with khaprail existed there in the disputed site for a long time, that is 28 years before and the wall and the khaprail have been affected by salt as deposed to by these two witnesses. Moreover the court Amin's report 57 C also shows the said walls and khaprail to be 25-30 years old in its present condition. The High Court has clearly came to the finding that though the partition deed was executed by the parties yet there was no partition by metes and bounds. Moreover there is no whisper in the plaint about the partition of the property in question between the co-sharers by metes and bounds nor there is any averment that the suit property fell to the share of plaintiff's vendor Ramji Lal and Ramji Lal was ever in possession of the disputed property since the date of partition till the date of sale to the plaintiff. The plaintiff has singularly failed to prove his case as pleaded in the plaint."
87. In Maharaja Sir Kesho Prasad Singh Bahadur Vs. Bahuria Mt. Bhagjogna Kuer and others AIR 1937 Privy Council 69 the Hon'ble Privy Council has held that mere receipt of rent by persons claiming adversely is not sufficeint to warrant finding of adverse possession. The possession of persons or their predecessors-in-title claiming by adverse possession must have "all the qualities of adequacy, continuity and exclusiveness" necessary to displace the title of the persons, against whom, they claim. Relevant extracts from page 78 of the said judgment reads as follows:
"the mere fact that many years after the sale the Gangbarar maliks or persons depriving title from them are obtaining rent for the land is in itself very significant. Even in a locality exposed to dilution by the action of the river this circumstance alone might be given considerable weight. But without sufficient proof to cover the intervening years it was most reasonably held by the learned Subordinate Judge to be insufficient. The circumstance that the Maharaja was not in possession or in receipt of rent is, it need hardly be said, insufficient under Art. 144 to warrant a finding of adverse possession on behalf of the respondents or their predecessors-in-title. Their Lordships are of opinion that on the materials produced it cannot be contended that the learned Subordinate Judge was obliged in law to find that the possession of the principal respondents had "all the qualities of adequacy, continuity and exclusiveness" (per Lord Shaw 126 CWN 66610 at p. 673) necessary to displace the title of the Maharaja, and they think that no reason in law exists why his finding of fact in this respect should not be final."
88. Pleadings are ncessary. Recently, the Apex Court has considered in detail the various authorities on the question of adverse possession in Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan & Others AIR 2009 SC 103 and in para 18 observed that 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.
89. The Court also referred to its earlier decision in D. N. Venkatarayappa & Anr. Vs. State of Karnataka & Ors. 1997 (7) SCC 567 observing :
"Therefore, in the absence of crucial pleadings, which constitute adverse possession and evidence to show that the petitioners have been in continuous and uninterrupted possession of the lands in question claiming right, title and interest in the lands in question hostile to the right, title and interest of the original grantees, the petitioners cannot claim that they have perfected their title by adverse possession."
90. In D.N. Venkatarayappa (Supra), the Court emphasized the importance of pleading as also the pre requisites of plea of adverse possession and said :
"3. ...What requires to be pleaded and proved is that the purchaser disclaimed his title under which he came into possession, set up adverse possession with necessary animus of asserting open and hostile title to the knowledge of the true owner and the later allowed the former, without any let or hindrance, to remain in possession and enjoyment of the property adverse to the interest of the true owner until the expiry of the prescribed period. The classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario."
"... ordinary classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario and the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor."
"apart from the actual and continuous possession which are among other ingredients of adverse possession, there should be necessary animus on the part of the person who intends to perfect his title by adverse possession."
"A person who under the bona fide belief thinks that the property belongs to him and as such he has been in possession, such possession cannot at all be adverse possession because it lacks necessary animus for perfecting title by adverse possession."
"... one of the important ingredients to claim adverse possession is that the person who claims adverse possession must have set up title hostile to the title of the true owner."
"...there is not even a whisper in the evidence of the first petitioner with regard to the claim of adverse possession set up by the petitioners. It is not stated by the petitioners that they have been in continuous and uninterrupted possession of the lands in question."
"But, the crucial facts to constitute adverse possession have not been pleaded. Admittedly, the appellant came into possession by a derivative title from the original grantee. It is seen that the original grantee has no right to alienate the land. Therefore, having come into possession under colour of title from original grantee, if the appellant intends to plead adverse possession as against the State, he must disclaim his title and plead his hostile claim to the knowledge of the State and that the State had not taken any action thereon within the prescribed period. Thereby, the appellant's possession would become adverse. No such stand was taken nor evidence has been adduced in this behalf. The counsel in fairness, despite his research, is unable to bring to our notice any such plea having been taken by the appellant."
"Therefore, in the absence of crucial pleadings, which constitute adverse possession and evidence to show that the petitioners have been in continuous and uninterrupted possession of the lands in question claiming right, title and interest in the lands in question hostile to the right, title and interest of the original grantees, the petitioners cannot claim that they have perfected their title by adverse possession"
"...person, who comes into possession under colour of title from the original grantee if he intends to claim adverse possession as against the State, must disclaim his title and plead his hostile claim to the knowledge of the State and the State had not taken any action thereon within the prescribed period."
"5. ... in claiming adverse possession certain pleas have to be made such as when there is a derivative title as in the present case, if the appellants intend to plead adverse possession as against the State, they must disclaim their title and plead this hostile claim to the knowledge of the State and that the State had not taken any action within the prescribed period, it is only in those circumstances the appellants' possession would become adverse. There is no material to that effect in the present case. Therefore, we are of the view that there is no substance in any of the contentions advanced on behalf of the appellants."
91. In Mahesh Chand Sharma Vs. Raj Kumari Sharma AIR 1996 SC 869, the necessity of pleading was emphasized and the Court in para 36 said :
"In this connection, we may emphasise that 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 the facts necessary to establish his adverse possession. For all the above reasons, the plea of limitation put forward by the appellant, or by Defendants Nos. 2 to 5 as the case may, be is rejected."
92. In Prabhu Narain Singh Vs. Ram Niranjan & Ors. AIR 1983 All 223 in para 6 the Court observed :
"A person claiming title to any land by adverse possession has to be very specific about the area of the land and the period over which he has been in possession."
93. In Ramzan & Ors. Vs. Smt. Gafooran Ors. AIR 2008 All 37 the Court observed :
"27. It is, therefore, explicit that unless there is specific plea and proof that adverse possessor has disclaimed his right and asserted title and possession to the knowledge of the true owner within a statutory period and the true owner has acquiesced to it, the adverse possessor cannot succeed to have it established that he has perfected his right by prescription."
"29. As pointed out above, where the defendants are not sure who is the true owner and question of their being in hostile possession then the question of denying title of true owner does not arise. At the most, the defendants have claimed and which is found to be correct by the trial court that they have been in possession of the disputed property since the inception of the sale deeds in their favour. They came in possession, according to their showing, as owner of the property in question. It follows that they exercised their right over the disputed property as owner and exercise of such right, by no stretch of imagination, it can be said that they claimed their title adverse to the true owner."
94. The pleading must be specific to the date when possession become adverse. In Ram Charan Das Vs. Naurangi Lal & Ors. AIR 1933 Privy Council 75 the property of a Mutt was alienated by Mahant by executing a Mukararri (permanent lease) in favour of one Munshi Naurangi Lal. The sale deed of the land in dispute was also executed to another one and both the documents contain a stipulation that they were executed to meet expenses and necessities of Mutt. After the death of Mahant, a suit was filed by successor in office against the lessee and purchaser etc. claiming possession of property in dispute to Mutt. The defendants besides others, took the plea of adverse possession also. The question was, did possession of the concerned defendant became adverse to Mutt or Mahant representing the Mutt on the date of relevant assurance or date of death of the concerned Mahant. The trial court held latter date to be correct while the High Court took a contrary view and upheld the former date. The Privy Council held:
"In other words a mahant has power (apart from any question of necessity) to create an interest in property appertaining to the Mutt which will continue during his own life, or to put it perhaps more accurately, which will continue during his tenure of office of mahant of the mutt, with the result that adverse possession of the particular property will only commence when the mahant who had disposed of it ceases to be mahant by death or otherwise. If this be right as it must be taken to be, where the disposition by the mahant purports to be a grant of a permanent lease, their Lordships are unable to see why the position is not the same where the disposition purports to be an absolute grant of the property nor was any logical reason suggested in argument why there should be any difference between the two cases. In each case the operation of the purported grant is effective and endures only for the period during which the mahant had power to create an interest in the property of the mutt." (emphasis added)
95. The pleading is necessary since burden also lies on the person who claims adverse possession. In Smt. Bitola Kuer Vs. Sri Ram Charan & Ors. AIR 1978 All 555 in para 16 the Court said:
"It is well settled that title ordinarily carries with it the presumption of possession and that when the question arises is to who was in possession of land, the presumption is that the true owner was in such possession. In other word" possession follows title. The inevitable Corollary from this principle is that the burden lies on the person who claims to have acquired title by adverse possession to prove his case."
96. In T. Anjanappa and others Vs. Somalingappa and another 2006 (7) SCC 570 the pre-conditions for taking plea of adverse possession has been summarised as under:
"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 to as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverese possession are that such possession in denial 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."
97. In order to defeat title of a plaintiff on the ground of adverse possession it is obligatory on the part of the respondent to specifically plead and prove as to since when their possession came adverse. If it was permissive or obtained pursuant to some sort of arrangement, the plea of adverse possession would fail. In Md. Mohammad Ali Vs. Jagadish Kalita & Ors. (2004) 1 SCC 271 with reference to a case dealing with such an issue amongst co-sharers it was observed that "Long and continuous possession by itself, it is trite, would not constitute adverse possession. Even non-participation in the rent and profits of the land to a co-sharer does not amount to ouster so as to give title by prescription.
98. It was also observed in para 21 that for the purpose of proving adverse possession/ouster, the defendant must also prove animus possidendi.
99. In L.N. Aswathama & another Vs. V.P. Prakash JT 2009 (9) 527 the Court, in para 17 and 18 said:
"17. The legal position is no doubt well settled. To establish a claim of title by prescription, that is adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence."
"18. ...When a person is in possession asserting to be the owner, even if he fails to establish his title, his possession would still be adverse to the true owner. Therefore, the two pleas put forth by the defendant in this case are not inconsistent pleas but alternative pleas available on the same facts. Therefore, the contention of the plaintiffs that the plea of adverse possession is not available to defendant is rejected."
100. Where a plea of adverse possession is taken, the pleadings are of utmost importance and anything, if found missing in pleadings, it may be fatal to such plea of adverse possession. Since mere long possession cannot satisfy the requirement of adverse possession, the person claiming it, must prove as to how and when the adverse possession commenced and whether fact of adverse possession was known to real owner. (R.N. Dawar Vs. Ganga Saran Dhama AIR 1993 Del. 19). In Parwatabai Vs. Sona Bai 1996 (10) SCC 266, it was stressed upon by the Apex Court that to establish the claim of adverse possession, one has to establish the exact date from which adverse possession started. The claim based on adverse possession has to be proved affirmatively by cogent evidence and presumptions and probabilities cannot be substituted for evidence. The plea of adverse possession is not always a legal plea. It is always based on facts which must be asserted, pleaded and proved. A person pleading adverse possession has no equities in his favour since he is trying to defeat the right of the true owner and, therefore, he has to specifically plead with sufficient clarity when his possession became adverse and the nature of such possession. [See Mahesh Chand Sharma (supra)].
101. In Parsinnin Vs. Sukhi (1993) 4 SCC 375, it said that burden of proof lies on the party who claims adverse possession. He has to plead and prove that his possession is nec vi, nec clam, nec precario i.e., peaceful, open and continuous.
102. Besides, alternative plea may be permissible, but mutually destructive pleas are not permissible. The defendants may raise inconsistent pleas so long as they are not mutually destructive as held in Biswanath Agarwalla Vs. Sabitri Bera & others JT 2009 (10) SC 538.
103. In Gautam Sarup Vs. Leela Jetly & others (2008) 7 SCC 85, the Court said that a defendant is entitled to take an alternative plea but such alternative pleas, however, cannot be mutually destructive of each other.
104. In Ejas Ali Qidwai & Ors. Vs. Special Manager, Court of Wards, Balrampur Estate & Ors. AIR 1935 Privy Council 53 certain interesting questions cropped up which also attracted certain consequences flowing from annexation of province of Oudh in 1857 by the British Government. It appears that one Asghar Ali and his cousin Muzaffar Ali granted a mortgage by conditional sale of the entire estate of Ambhapur (commonly known as the Taluka of Gandara) and certain villages to the then Maharaja of Balrampur. The mortgaged property situated in District Bahraich, which was in the Province of Oudh. The mortgagee brought an action to enforce his right, got a decree in his favour and ultimately possession of the property in 1922. The sons of Asghar Ali thereafter brought an action in civil court for recovery of their share of the mortgaged property on the ground that it was the absolute property of their father and on his death devolved on all the persons who were his heirs under the Mahomedan Law. They challenged Iqbal Ali's right to mortgage the whole of estate and impeached the mortgaged transaction on various grounds. The claim was resisted on the ground that succession to the estate was governed by the rule of primogeniture according to which the whole of the estate descended first to Asghar Ali and after his death to his eldest son Iqbal Ali. The defence having been upheld the claim was negatived by the trial court as well as the court of appeal. Before the Privy Council the only question raised was whether the succession to the property was regulated by the rule of primogeniture or by Mahomedan Law.
105. The Privy Council while considering the above question observed that the Province of Oudh was annexed by the East India Company in 1856 but in 1857 during the first war of independence by native Indians much of its part was declared independent. Soon after it was conquered by the British Government and it got reoccupation of the entire province of Oudh. Thereafter in March 1858 the British Government issued a proclamation confiscating, with certain exceptions "the proprietary right in the soil of the Province" and reserved to itself the power to dispose of that right in such manner as to it may seem fit. On 10th October 1859 the British Government (the then Government of India) declared that every talukdar with whom a summary settlement has been made since the re-occupation of the Province has thereby acquired a permanent, hereditary and transferable proprietary right, namely in the taluka for which he has engaged, including the perpetual privilege of engaging with the Government for the revenue of the taluka. Pursuant to that declaration, Wazir Ali with whom a summary settlement of Taluka has already been made was granted a Sanad which conferred upon him full proprietary right, title and possession of the estate or Ambhapur. In the said grant, there contained a stipulation that in the event of dying intestate or anyone of his successor dies intestate, the estate shall descend to the nearest male heir according to rule of primogeniture. Subsequently, in order to avoid any further doubt in the matter, Oudh Estates Act I of 1869 was enacted wherein Wazir Ali was shown as a Tallukdar whose estate according to the custom of the family on or before 13.2.1856 ordinarily devolved upon a single heir. However, having noticed this state of affairs, the Privy Council further observed that this rule was not followed after the death of Wazir Ali and the Taluka was mutated in favour of his cousin Nawazish Ali. He was recorded as owner of Taluka. Thereafter in 1892 Samsam Ali entered the joint possession with Nawazish Ali and after death of Nawazish Ali, Samsam Ali was recorded as the sole owner. The system of devolution of the property was explained being in accordance with the usage of the family and when the name of Asghar Ali was recorded, he also made a similar declaration. Faced with the situation the appellant sought to explain the possession of Nawazish Ali as adverse possession but the same was discarded by the Privy Council observing:
"The principle of law is firmly established that a person, who bases his title on adverse possession, must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed."
106. In S.M. Karim Vs. Mst. Bibi Sakina AIR 1964 SC 1254 the Hon'ble Apex Court has held that the alternative claim must be clearly made and proved, adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point on limitation against the party affected can be found. A mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "a possible title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and prayer clause is not a substitute for a plea. Relevant paras 3 to 5 of the said judgment read as follows:
"3. In this appeal, it has been stressed by the appellant that the findings clearly establish the benami nature of the transaction of 1914. This is, perhaps, true but the appellant cannot avail himself of it. The appellant's claim based upon the benami nature of the transaction cannot stand because S. 66 of the Code of Civil Procedure bars it. That section provides that no suit shall be maintained against any person claiming title under a purchase certified by the Court on the ground that the purchase was made on behalf of the plaintiff or on behalf of someone through whom the plaintiff claims. Formerly, the opening words were, no suit shall be maintained against a certified purchaser and the change was made to protect not only the certified purchaser but any person claiming title under a purchase certified by the Court. The protection is thus available not only against the real purchaser but also against anyone claiming through him. In the present case, the appellant as plaintiff was hit by the section and the defendants were protected by it."
"4. It is contended that the case falls within the second sub-section under which a suit is possible at the instance of a third person who wishes to proceed against the property, though ostensibly sold to the certified purchaser, on tie ground that it is liable to satisfy a claim of such third person against the real owner. Reliance is placed upon the transfer by Syed Aulad Ali in favour of the appellant which is described as a claim by the transferee against the real owner. The words of the second sub-section refer to the claim of creditors and not to the claims of transferees. The latter are dealt with in first sub-section, and if the meaning sought to be placed on the second sub-section by the appellant were to be accepted, the entire policy of the law would be defeated by the real purchaser making a transfer to another and the first sub-section would become almost a dead letter. In our opinion, such a construction cannot be accepted and the plaintiff's suit must be held to be barred under S. 66 of the Code."
"5. As an alternative, it was contended before us that the title of Hakir Alam was extinguished by long and uninterrupted adverse possession of Syed Aulad Ali and after him of the plaintiff. The High Court did not accept this case. Such a case is, of course, open to a plaintiff to make if his possession is disturbed. If the possession of the real owner ripens into title under the Limitation Act and he is dispossessed, he can sue to obtain possession, for he does not then rely on the benami nature of the transaction. But the alternative claim must be clearly made and proved. The High Court held that the plea of adverse possession was not raised in the suit and reversed the decision of the two courts below. The plea of adverse possession is raised here. Reliance is placed before us on Sukan v. Krishanand, ILR 32 Pat 353 and Sri Bhagwan Singh and others v. Ram Basi Kuer and others, AIR 1957 Pat 157 to submit that such a plea is not necessary and alternatively, that if a plea is required, what can be considered a proper plea. But these two cases can hardly help the appellant. No doubt, the plaint sets out the fact that after the purchase by Syed Aulad Ali, benami in the name of his son-in-law Hakir Alam Ali continued in possession of the property but it does not say that this possession was at any time adverse to that of the certified purchaser. Hakir Alam was the son-in-law of Syed Aulad Ali and was living with him. There is no suggestion that Syed Aulad Ali ever asserted any hostile title against him or that a dispute with regard to ownership and possession had ever arisen. Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea. The cited cases need hardly be considered, because each case must be determined upon the allegations in the plaint in that case. It is sufficient to point out that in Bishun Dayal v. Kesho Prasad, A.I.R. 1940 P.C. 202 the Judicial Committee did not accept an alternative case based on possession after purchase without a proper plea."
107. In B. Leelavathi Vs. Honnamma and another, (2005) 11 SCC 115 the Hon'ble Supreme Court has held that the adverse possession is a question of fact which has to be specifically pleaded and proved and in the absence of any plea of adverse possession, framing of an issue and adducing evidence it would not be held that the plaintiffs had perfected towards the title by way of adverse possession. Para 11 of the judgment read as follows:
"11. Plea of adverse possession had been taken vaguely in the plaint. No categorical stand on this point was taken in the plaint. No issue had been framed and seemingly the same was not insisted upon by the plaintiff-respondent. Adverse possession is a question of fact which has to be specifically pleaded and proved. No evidence was adduced by the plaintiff-respondent with regard to adverse possession. Honnamma, the plaintiff in her own statement did not say that she is in adverse possession of the suit property. We fail to understand as to how the High Court, in the absence of any plea of adverse possession, framing of an issue and evidence led on the point, could hold that the plaintiff-respondent had perfected her title by way of adverse possession."
108. In Dharamarajan & Ors. Vs. Valliammal & Ors., 2008 (2) SCC 741 the Hon'ble Supreme Court has held that in a claim of adverse possession openness and adverse nature of the possession has to be proved against the owner of the property in question. Relevant para 11 of the said judgment reads as follows:
"11. In our opinion none of these questions could be said to be either question of law or a substantial question of law arising out of the pleadings of the parties. The first referred question of law could not and did not arise for the simple reason that the plea of adverse possession has been rightly found against the plaintiff. Karupayee Ammal's possession, even if presumed to be in a valid possession in law, could not be said to be adverse possession as throughout it was the case of the appellant Dharmarajan that it was a permissive possession and that she was permitted to stay on the land belonging to the members of the Iyer family. Secondly it has nowhere come as to against whom was her possession adverse. Was it adverse against the Government or against the Iyer family? In order to substantiate the plea of adverse possession, the possession has to be open and adverse to the owner of the property in question. The evidence did not show this openness and adverse nature because it is not even certain as to against whom the adverse possession was pleaded on the part of Karupayee Ammal. Further even the legal relationship of Doraiswamy and Karupayee Ammal is not pleaded or proved. All that is pleaded is that after Karupayee Ammal's demise Doraiswamy as her foster son continued in the thatched shed allegedly constructed by Karupayee Ammal. There was no question of the tacking of possession as there is ample evidence on record to suggest that Doraiswamy also was in the service of Iyer family and that he was permitted to stay after Karupayee Ammal. Further his legal heirship was also not decisively proved. We do not, therefore, see as to how the first substantial question of law came to be framed. This is apart from the fact that ultimately High Court has not granted the relief to the respondents on the basis of the finding of this question. On the other hand the High Court has gone into entirely different consideration based on reappreciation of evidence. The second and third questions are not the questions of law at all. They are regarding appreciation of evidence. The fourth question is regarding the admissibility of Exhibit A-8. In our opinion there is no question of admissibility as the High Court has found that Exhibit A-8 was not admissible in evidence since the Tehsildar who had issued that certificate was not examined. Therefore, there will be no question of admissibility since the document itself was not proved. Again the finding of the High Court goes against the respondent herein. Even the fifth question was a clear cut question of fact and was, therefore, impermissible in the Second Appeal."
109. In A.S. Vidyasagar Vs. S. Karunanandam 1995 Supp (4) SCC 570 the Hon'ble Supreme Court has held that permissive possession is not adverse possession and can be terminated at any time by the rightful owner. Relevant para 5 of the judgment reads as follows:
"5. Adverse possession is sought to be established on the supposition that Kanthimathi got possession of the premises as a licensee and on her death in 1948, the appellant who was 4 years of age, must be presumed to have become a trespasser. And if he had remained in trespass for 12 years, the title stood perfected and in any case, a suit to recovery of possession would by then be time-barred. We are unable to appreciate this line of reasoning for it appears to us that there is no occasion to term the possession of Kanthimathi as that of a licensee. The possession was permissive in her hands and remained permissive in the hands of the appellant on his birth, as well as in the hands of his father living then with Kanthimathi. There was no occasion for any such licence to have been terminated. For the view we are taking there was no licence at all. Permissible possession of the appellant could rightfully be terminated at any moment by the rightful owners. The present contesting respondents thus had a right to institute the suit for possession against the appellant. No oral evidence has been referred to us which would go to support the plea of openness, hostility and notoriety which would go to establish adverse possession. On the contrary, the Municipal Tax receipts, Exts. B-39 and 40, even though suggestedly reflecting payment made by the appellant, were in the name of Kuppuswami, the rightful owner. This negates the assertion that at any stage did the appellant assert a hostile title. Even by examining the evidence, at our end, we come to the same view as that of the High Court. The plea of adverse possession thus also fails. As a result fails this appeal. Accordingly, we dismiss the appeal, but without any order as to costs."
110. In Goswami Shri Mahalaxmi Vahuji Vs. Shah Ranchhoddas Kalidas, AIR 1970 SC 2025 the Hon'ble Supreme Court held that a party cannot be allowed to set up a case wholly inconsistent with that pleaded in its written statement. Relevant para 8 of the said judgment reads as follows:
"8. We may now proceed to examine the material on record for finding out 'the true character of the suit properties viz. whether they are properties of a public trust arising from their dedication of those properties in favour of the deity Shree Gokulnathji or whether the deity as well as the suit properties are the private properties of Goswami Maharaj. In her written statement as noticed, earlier, the Ist defendant took up the specific plea that the idol of Shree Gokulnathji is the private property of the Maharaj the Vallabh Cult does not permit any dedication in favour of an idol and in fact there was no dedication in favour of that idol. She emphatically denied that the suit properties were the properties of the deity Gokulnathji but in this Court evidently because of the enormity of evidence adduced by the plaintiffs, a totally new plea was taken namely that several items of the suit properties had been dedicated to Gokulnathji but the deity being the family deity of the Maharaj, the resulting trust is only a private trust. In other words the plea taken in the written statement is that the suit properties were the private properties of the Maharaj and that there was no trust, private or public. But the case argued before this Court is a wholly different one viz., the suit properties were partly the properties of a private trust and partly the private properties of the Maharaj. The Ist defendant cannot be permitted to take up a case which is wholly inconsistent with that pleaded. This belated attempt to bypass the evidence adduced appears to be more a manor than a genuine explanation of the documentary evidence adduced. It is amply proved that ever since Mathuranathji took over the management of the shrine, two sets of account books have been maintained, one relating to the income and expenses of the shrine and the other relating to that of the Maharaj. These account books and other documents show that presents and gifts used to. be made to the deity as well as to the Maharaj. The two were quite separate and distinct. Maharaj himself has been making gifts to the deity. He has been, at times utilising the funds belonging to. the deity and thereafter reimbursing the same. The account books which have been produced clearly go to show that the deity and the Maharaj were treated as two different and distinct legal entities. The evidence afforded "by the account books is tell-tale. In the trial court it was contended on behalf of the Ist defendant that none of the account books produced relate exclusively to the affairs of the temple. They all record the transactions of the Maharaj, whether pertaining to his personal dealings or dealings in connection with the deity. This is an obviously untenable contention. That contention was given up in the High Court. In the High Court it was urged that two sets of account books were kept, one relating to the income and expenditure of the deity and the other of the Maharai so that the Maharai could easily find out-his financial commitments relating to the affairs of the deity. But in this Court Mr. Narasaraju, learned Counsel for the appellant realising the untenability of the contention advanced in the courts below presented for our consideration a totally new case and that is that Gokulnathji undoubtedly is a legal personality; in the past the properties had been dedicated in favour of that deity; those properties are the properties of a private trust of which the Maharaj was the trustee. On the basis of this newly evolved theory he wanted to explain away the effect of the evidence afforded by the account books and the documents. We are unable to accept this new plea. It runs counter to the case pleaded in the written statement. This is not a purely legal contention. The Ist defendant must have known whether there was any dedication in favour of Shri Gokulnathji and whether any portion of the suit properties were the properties of a private trust. She and her adviser's must have known at all relevant times the true nature of the accounts maintained. Mr. Narasaraju is not right in his contention that the plea taken by him in this Court is a purely legal plea. It essentially relates to questions of fact. Hence we informed Mr. Narasaraju that we will not entertain the plea in question."
111. In the matter of plea of adverse possession, mutually inconsistent or mutually destructive pleas must not be taken in the plaint. Whenever the plea of adverse possession is raised, it pre supposes that onwer is someone else and the person taking the plea of adverse possession is not the actual owner but has perfected his title by prescription since the real owner failed to initiate any proceeding for restoring the possession within the prescribed period under the statute.
112. In P. Periasami Vs. P.Periathambi & Ors., 1995 (6) SCC 523 it was said:
"Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property."
113. In Mohan Lal v. Mirza Abdul Gaffar (1996) 1SCC 639, the Court said"
"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 his title by prescription nec vi, nec clam, nec precario."
114. In Karnataka Board of Wakf Vs. Government of India & others (2004) 10 SCC 779, the Court held that whenever the plea of adverse possession is projected, inherent therein is that someone else is the owner of the property. In para 12 it said:
"The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced."
115. The decision in Mohal Lal (supra) has also been followed in Karnataka Board of Wakf (supra) and in para 13, the Court said:
"As we have already found, the respondent obtained title under the provisions of the Ancient Monuments Act. The element of the respondent's possession of the suit property to the exclusion of the appellant with the animus to possess it is not specifically pleaded and proved. So are the aspects of earlier title of the appellant or the point of time of disposition. Consequently, the alternative plea of adverse possession by the respondent is unsustainable."
116. It would be useful to refer certain observations of a Single Judge of this Court in Abdul Halim Khan Vs. Raja Saadat Ali Khan and others, AIR 1928 Oudh 155, which, in my view, squarely applies to the facts and pleadings of this case and I am in respectful agreement therewith:
"One of the general principles governing the law of limitation is that a person can only be considered to be barred, if he has a right to enter and does not exercise that right within the period fixed by the Limitation Act. The maxim of law is contra non valentem agree nulla currit praescriptio (prescription does not run against a party who is unable to act); vide Broom's Legal Maxims, 9th edn., p. 576. Accordingly possession cannot become adverse against a person as long as he is not entitled to claim immediate possession. Ex facie it must follow that a person who is not in existence cannot be considered to be in a position to claim whether immediate or otherwise. It is evident that in the eyes of the law the plaintiff did not come into existence as long as he was not adopted. His adoption took place on 27th July 1914. He must be deemed to have come into existence only then. It was, therefore, obviously not possible for him to claim possession of the property before that date, and if he was not in a position to claim it at all, having not been then in existence, it would be absurd to say that another person was in possession adversely to him. One might fairly ask: "Adverse against whom?" It certainly cannot be adverse against the plaintiff, who was not then in existence. It may have been adverse against any other person, but we are not concerned with such person unless the plaintiff can be shown to have derived his title from such person." (page189-190)
117. Recently, in Vishwanath Bapurao Sabale Vs. Shalinibai Nagappa Sabale and others, JT 2009(5) SC 395, the Apex Court, with respect to a claim of title, based on the pleading of adverse possession, said as under:
"for claiming title by adverse possession, it was necessary for the plaintiff to plead and prove animus possidendi.
A peaceful, open and continuous possession being the ingredients of the principle of adverse possession as contained in the maxim nec vi, nec clam, nec precario, long possession by itself would not be sufficient to prove adverse possession."
118. What should have been pleaded and what a person claiming adverse possession has to show, has been laid down by the Apex Court categorically in Karnataka Board of Wakf (supra):
"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 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. ..... Physical fact of exclusive possession and the animus posdendi 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 true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."
119. Earlier also, a three-Judges Bench of Apex Court in Parsinni & another Vs. Sukhi (supra) laid down the following three requisites for satisfying the claim based on adverse possession:
"5. The appellants claimed adverse possession. The burden undoubtedly lies on them to plead and prove that they remained in possession in their own right adverse to the respondents. .... Possession is prima facie evidence of title. Party claiming adverse possession must prove that his possession mast be "nee vi nee clam nee precario" i.e. 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."
120. In Maharaja Sir Kesho Prasad Singh Bahadur (supra), it was held that in order to obtain a favourable finding of adverse possession, one must have to satisfy all the qualities of adequacy, continuity and exclusiveness. Reliance was placed on Kuthali Moothavur Vs. P. Kunharankutty AIR 1922 PC 181.
121. In the present case, in a very vague and cryptic manner, the plea of adverse possession has been taken in the plaint. The plaintiffs themselves are not aware as to against whom they or their ancestors, as claimed, were holding property in dispute as alleged hostile possession. The exact time is also not there. It appears that the understanding of plaintiffs was that mere long period of time of possession, if pleaded, would satisfy the requirement of adverse possession, if above period is more than 12 years. This is apparently against the well established legal requirement, as discussed in great detail above.
122. In the circumstances, in my view, the plea of adverse possession neither has been taken with sufficient facts pleaded in the plaint nor any question can arise to lead evidence for something which is not pleaded. The Lower Appellate Court has rightly observed that adverse possession has not been proved. In fact, the Lower Appellate Court has found that from own admission of plaintiffs, it was evident that the land in question was being used for staking construction material and that was not a kind of possession with intention to hold the land, adverse, against true owner, so as to acquire prescriptive right of title, if, such possession continued for more than a period of limitation prescribed in LA 1963. Nothing has been shown otherwise in the pleadings and, therefore, in my view, the question of adverse possession, from pleadings, does not arise at all. The pleadings, in fact, lack necessary, requisite ingredients. In absence of requisite pleadings, there is no question to make any detailed investigation on the question of adverse possession.
123. Since the Trial Court completely failed to consider basic requirement to attract principle of adverse possession, therefore, on this aspect its decision was clearly in the teeth of well established exposition of law. It has thus rightly been reversed by Lower Appellate Court though it has basically confined itself on the ground that plaintiffs failed to prove their continuous possession with animus possidendi on the property in dispute so as to give an advantage of prescriptive right on the property in dispute.
124. I, therefore, find no substance in the argument raised by learned counsel for the appellants on the question of adverse possession.
125. Then comes the question of res judicata. It is admitted that Original Suit No. 703 of 1975 was instituted only by a Trust, namely, Gopal Dharamshala Trust, i.e., defendant no. 2. The suit was dismissed in default. There is no adjudication of issues therein. It is evident from record that aforesaid suit was contested by defendants therein (plaintiffs in the case in hand) on the ground that the suit was not maintainable at the instance of Gopal Dharamshala Trust since it is not a legal entity. The dismissal of suit without deciding any issue, if operates res judicata, on the question that suit itself was not maintainable, it cannot be said that other issues raised by defendants therein can be said to operate as res judicata in the present case. Be that as it may the present suit has been filed against six defendants and except of Sri Gopal Dharamshala Trust, none else was the party in earlier proceedings, therefore, it cannot be said that earlier proceedings would operate as res judicata.
126. Then comes the third question that disputed Chabutara was held a part of plot no. 109 by Trial Court, but, Lower Appellate Court, though has recognized possession of plaintiffs-appellants, but not the fact that it is a part of plot no. 109 and, instead, has observed that it is a part of plot no. 109, and, therefore, defendants-respondents are free to take such recourse in law as permissible for dispossession of plaintiffs. The submissions is that Lower Appellate Court could not have reversed the finding of Trial Court without recording its own findings to demonstrate that findings recorded by Trial Court are perverse, illegal or contrary to record.
127. The submission is quite attractive inasmuch as it is founded on well established exposition of law but in substance, I find, on closure scrutiny, that whatever has been argued is not correct. The Trial Court while observing that Chabutara is a part of Plot No. 109 has not relied on any evidence led by plaintiffs except of their oral statement. Counsel for plaintiffs-appellants could not dispute that in order to prove that Chabutara was a part of Plot no. 109, except oral statement of PW-1 and 2, and lack of evidence adduced by defendants, except statement of DW-1 that Chabutara was a part of Plot No. 108 no other evidence was considered by Trial Court. The Lower Appellate Court however has said that site map of Plot No. 109 and its area etc., must have been available with plaintiffs for the reason that they had got the map sanctioned from local authority before raising construction but the same was not adduced. When the best evidence was not adduced by plaintiffs to prove their case, an adverse inference against them was justified. This aspect has completely been ignored by Trial Court and this finding of Lower Appellate Court gives a valid reason to reverse the finding of Trial Court on this aspect. It cannot be said that Lower Appellate Court has not given any reason for reversing the finding of Trial Court on issue no. 1.
128. Before parting, it would be necessary to observe that in a dispute like the present one, heavy and onerous duty is cast upon the Trial Court to look into evidence in its entirety and also the provisions of Evidence Act, 1872 to find out whether the plaintiffs have been able to prove their case or not. The plaintiffs in order to claim relief, have to stand on their own legs and cannot get advantage of a weak defence or no defence. The provisions of Section 101 to 104 of Evidence Act clearly shows that onus lie upon plaintiffs to succeed and otherwise the suit has to fail.
129. In respect of immoveable property, whenever there can be existence of a documentary evidence, to prove a fact, one or the other way, the Trial Court must examine as to who must be in possession thereof ordinarily and whether such party has placed before Court the best evidence, it possessed, or not. When such document is in possession or must be in possession of plaintiffs but they fail to adduce such evidence, the claim is bound to fail, for the reason, that an adverse inference necessarily must be taken in such a case, unless explained otherwise satisfactory. The Trial Court, therefore, while discussing the issues, being the first court of fact, must look into every aspect, factually as well as legally, both. The facts and evidence also have to be examined in the light of statutory provisions and not otherwise. Similarly, the First Appellate Court, being the last court of fact, should also reflect its conscious application of mind while deciding appeal. It cannot pass a cryptic order and, that too, when passing a decree of reversal.
130. It has been observed by this Court, time and again, that task of an Appellate Court, affirming findings of Trial Court, is a bit easier than the judgment of reversal. The Appellate Court, according with the view of Trial Court, need not restate the effect of the evidence or reiterate reasons given by trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice. This is how the Court expressed its views in Girijanandini Devi & Ors. Vs. Bijendra Narain Choudhary, AIR 1967 SC 1124. However, in Santosh Hazari (supra) the Court relying on its earlier two decisions in Sarju Pershad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain Singh & Ors., AIR 1951 SC 120 and Madhusudan Das Vs. Smt. Narayani Bai & Ors., AIR 1983 SC 114 said:
"Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact. . . . . . . The rule is -- and it is nothing more than a rule of practice -- that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact. . . . . Secondly, while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one."
131. This Court hopes and trust that Courts of fact while dealing with the trial at the initial level, or the first appeal, shall always keep in mind the above principles.
132. Coming back to the present case, looking to the discussion made above, I find that all the three issues raised by appellants, have to be returned against them. The second appeal, in the result, fails and is accordingly dismissed with costs throughout.
Order Date :- 05.04.2013 AK