Madhya Pradesh High Court
Municipal Corporation Ujjain vs M/S Bachhraj Factory on 7 February, 2018
First Appeal No.43/2003 1
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
BEFORE HON.MR. JUSTICE S.C. SHARMA, JUDGE
First Appeal No.43/2003
Municipal Corporation Ujjain & Ors
Vs.
Bachhraj Factories Limited
Shri B.I. Mehta, learned senior counsel with Shri J.B. Mehta, learned counsel
for the appellants.
Shri Amit Agrawal, learned senior counsel with Shri Arjun Agrawal, learned
counsel for the respondent.
____________________________________________________________________ Judgment ( Passed on this 7th day of February, 2018 ) The present First Appeal is arising out the judgment and decree dated 14.12.2002 passed IXth Additional District Judge (fastrack Court), Ujjain in Civil Suit No.23-A/2002 Bachhraj Factory Limited v/s Nagarpalika Nigam Ujjain and two others.
2. The facts of the case reveal that the respondent/plaintiff has filed a suit for declaration of title and permanent injunction and in the alternative that the plaintiff has become owner of the suit property by virtue of an adverse possession. The plaintiff has also sought relief in the form of mandatory injunction praying that possession of the suit property/part of land be delivered to him.
3. The facts of the case further reveal that the plaintiff Bachhraj Factory Limited is company registered under the Companies Act, has filed a civil suit through his power of attorney holder Mahendra Mehrotra and a suit was filed in respect of land bearing survey No.1332/1/1, area 17 bigha and 30 biswa and out of the aforesaid, it First Appeal No.43/2003 2 was pleaded that the plaintiff / company is owner of the land, having an area 14 bigha and 13 biswa.
4. Undisputedly, on the aforesaid land, as on date the Ujjain Municipal Corporation is in possession and its buildings are in existence over the suit land. It was pleaded in the plaint that the plaintiff has purchased the suit property through a registered sale deed on 10.09.1962 from one Khan Saheb Nazar Mills and the total land purchased vide sale deed dated 10.09.1962, was 41 bigha and 13 biswa. The land in dispute in respect of the civil suit is 14 bigha and 13 biswa.
5. It was further stated that the plaintiff has purchased the land vide sale deed dated 10.09.1962. Apart from the suit land, in respect of the property ad-measuring 27 bigha another civil suit was filed against the State Government i.e. Civil Suit No.10-A/2000 and the same was dismissed on 03.08.2000, against which, a first appeal was preferred and at the relevant point of time, the first appeal was pending.
6. It was further pleaded that the land bearing survey No.52 is comprising out of 17 bigha and 13 biswa out of which, the suit land is 14 bigha 13 biswa and the present survey number of the suit land is 1332/1/1-A. It was also stated that out of the part of property ad-measuring 6 bigha was acquired by the Statement Government by paying a sum of Rs.37,000/- and the plaintiff is in peaceful possession of the suit land on account of sale deed dated 10.09.1962. The plaintiff has further pleaded that he has paid all municipal taxes as well as water taxes from time to time. It was also pleaded that in respect of the same property, notice was issued by the Collector for acquiring the same land under the Land Acquisition Act for construction of a cloth market, and therefore, First Appeal No.43/2003 3 possession of the plaintiff was admitted by the defendants.
7. A prayer was made that the plaintiff is in peaceful possession of the land in question, and therefore, the Municipal Corporation, Ujjain be directed not to interfere with the peaceful possession of the suit property, as the plaintiff is the owner of the property.
8. A written statement was filed in the matter and it was stated that the land in question was exclusively under the ownership of Nagarpalika Nigam, Ujjain and Khan Saheb Nazar Mills was not owner of the suit property..
9. It was also disputed that a part of land was acquired for construction of police housing colony. It was also denied that the plaintiff was the title holder and it was also denied that the predecessor-in-title was having a clear title of the suit property.
10. The trial Court has framed following issues and the conclusion arrived at by the trial Court has held as under;-
esjs iwoZ ihBklhu vf/kdkjh prqFkZ vij ftyk U;k;k/kh'k }kjk fuEukafdr okn iz'uksa dh jpuk dhs xbZ ftuds le{k esjs }kjk fudkys x, fu"d"kZ vafdr gS %& okn iz'u fu"d"kZ 1- D;k egsUnz esgjks=k dks oknh dh vksj ls ;g okn izLrqr djus dk vf/kdkj gS \ gkW 2- D;k mTtSu uxj ikfydk fuxe {ks= esa flFkr Hkwfe losZ u- 1332 [kku lkgc gkW utj vyh feYl]mTtSu ds LokfeRo D;k vkf/keR; dh FkhA vkSj vutj vyh fey ds ekfydku [kku lkgc vtjvyh vkykc{k rFkk eksg- vyh bZlkHkkbZ Fks \ 3- D;k [kku lkgc utj vyh fey os ekfyoku us u-ik- ls vuqefr izkIr ij mDr ugh losZ uacj dh Hkwfe es QsDVªh Hkou] xksnke dk fuekZ.k djok;k Fkk \ 4- D;k lu 1958&59 esa jkT; 'kklu ds iqfyl foHkkx ds vkoklh; Hkouksa ds fuekZ.k gkW gsrq mDr losZ u- iss dh okn i= isjk 7 ¼la'kksf/kr½ esa of.kZr Hkwfe vftZr dh tkdj 37000@& :- dk eqvkotk feYl Lokfe;ksa dks fn;k x;k FkkA 5- D;k losZ u- 1332@& is dh 'ks"k 44 ch?kk 19 fclok losZ u- 1332@2 14 gkW fclok dqy 45 ch?kk 13 fcLkok Hkwfe fey ekfydku ds LoRo dh 'ks"k jghA 6- D;k fey ekfydku us dqN Hkkx vU; yksxks dks varfjr dj fn;k i'pkr 41 ch?kk gkW 13 fcLkok Hkwfe fey ikfydku ds LoRo rFkk vkf/keR; esa jgh FkhA 7- D;k fn- 10-09-62 dks losZ u- 1322@1 ,oa 1332@2 dh 'ks"k jgh Hkwfe 41 ch?kk gkW 13 fclok utj vyh feYl ds ekfydku us oknh dks iathdr fodz; i= ds }kjk e; Hkou o QsDVªh;ksa ds foØ; ij nh FkhA rFkk okLrfod vkf/keRo lkSi fn;k Fkk \ 8- D;k Hkwfe losZ u- 1332@1] 1332@2 dk uxj ikfydk dz- 1@1677 rFkk rFkk orZeku gkW esa laifRr dk uxj ikfydk fuxe dk x`g dz- 52 okMZ dz 24 gS \ 9- D;k Hkwfe losZ dz- 1332@1 ds lu 68&69 esa foHkktu fd, tkdj ,d losZ u- 1332@1@1&, jdck 14 ch?kk 13 fcLkok fu/kkZfjr fd;k x;k gksdj ;g Hkwfe oknh ds LoRo rFkk vkf/kiR; dh gS \ 10- D;k oknh fookfnr Hkwfe losZ u- 1332@1@1&, jdck 14 ch?kk 13 fcRok ckcr fojks/kh gkW First Appeal No.43/2003 4 vkf/keR; ds vk/kkj ij Hkwfe Lokeh LoRo vftZr dj pqdk gS \ 11-D;k izfrx.k oknh dks csn[ky djuk pkgrs gS ;fn gkW rks ifj.kke\ gkW A oknh LFkkbZ fu"ks/kkKk ikus dk vf/kdkjh 12- D;k nkos dk {ks=kf/kdkj ,oa U;k;'kqYd gsrq mfpr eqY;kadu fd;k x;k rFkk U;k;'kqYd Ik;kZIr U;k;'kqYd Hkqxrku fd;k x;k gS \ gsrq mfpr eqY;kadu fd;k gS 13- D;k fookfnr Hkwfe uxj ikfydk fuxe mTtSu ds LoRo dh gS vkSj bl dkj.k fl) ugh oknh dksbZ lgk;rk ikus dk vf/kdkjh ugh gS \ 14- lgk;rk ,oa O;; \ nkok Lo;a Lohdkj fd;k x;k 15- D;k fookfnr Hkwfe HkwriwoZ Xokfy;j jkT; us utj vyh feYl dks rkdk;eh fl) ugh dkj[kkuk dk;e djus ds fy, nh Fkh rFkk fey can gks tkus ds dkj.k fookfnr Hkwfe uxj ikfydk mTtSu dh laifRr gks pqdh gksdj utj vyh fey ds ekfydku dks fookfnr Hkwfe fodz; djus dk vf/kdkj ugh Fkk] QyLo:i fookfnr Hkwfe esa oknh dks dksbZ LoRo izkIr ugha gksrs gSA \
11. This Court has carefully gone through the entire evidence available on record and heard the arguments canvassed by learned counsel for the parties.
12. In the plaint, it was alleged by the plaintiff that he has purchased the disputed property from legal representatives of Nazar Ali Abbas by a registered sale deed in 1962 and they are in possession thereof. The plaintiffs have claimed the title on the strength of sale deed executed by legal heirs of Nazar Ali Abbas.
13. This Court has minutely scanned the entire evidence and findings arrived at by the trial Court in respect of title of Khan Saheb Nazar Mills in respect of Survey No.1332 are certainly perverse findings. Neither the tile of predecessor-in-title nor the possession was proved at any point of time. On the contrary, the defendant Municipal Corporation was in possession and buildings of the Municipal Corporation, which are in existence of the suit property includes a fire station. The plaintiff came with a plea of ownership as well as of adverse possession. The pleas of ownership and acquisition of rights by adverse possession are mutually destructive and are inconsistent with each other, hence a decree could not have been passed in favour of the plaintiffs in the manner and method it has been done.
First Appeal No.43/2003 514. The Hon'ble apex Court in case of Mohanlal (through LRs) v/s Mirza Abdul Gaffar and another 1996 JLJ 354 in paragraph 3 and 4 has held as under:-
"3. The only question is whether the appellant is entitled to retain possession of the suit property. Two pleas have been raised by the appellant in defence. One is that having remained in possession from March 8, 1956, he has perfected his title by prescription. Secondly, he pleaded that he is entitled to retain his possession by operation of Section 53-A of the Transfer of Property Act, 1882 (for short, 'the Act').
4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., upto completing the period of his title by prescription nec vi nec clam nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant".
In light of the aforesaid judgment, as pleas of ownership and adverse possession was mutually destructive, the judgment and decree passed by the trial Court in the peculiar facts and circumstances of the case deserves to be set aside.
15. The plaintiff was certainly not able to prove the title of predecessor-in-title and was not able to prove his title also. In the considered opinion of this Court, suit of the plaintiff is not maintainable on the ground of acquisition of title by adverse possession as held by the Hon'ble apex Court in the case of Gurudwara Sahib v/s Gram Panchayat Village Sirthala 2014 (3) M.P.L.J. 36 SCC. Paragraph 8 and 9 of the aforesaid judgment has held as under:-
8. However, we also find from the reading of the judgment of the High Court that the High Court has refused the injunction observing that the appellant was not entitled to the same as it is the Gram Panchayat which is the owner of the First Appeal No.43/2003 6 property in dispute and as the appellant is in possession without any right, it has no right to seek injunction against the Gram Panchayat. This finding is totally perverse and, in fact, unnecessary. In the first instance, there was no occasion or reason for the appellant's counsel to seek this prayer in the Second Appeal. As pointed out above, the relief of injunction had already been granted by the Civil Court and this portion of the decree had not been challenged by the respondents. Decree to this extent in favour of the appellant had attained finality. The First Appellate Court also specifically recorded this fact and observed that by not challenging the judgment and decree passed by the learned Civil Judge, the respondents accepted that the appellant was in adverse possession of the land since 13.4.1952. We, thus, clarify that observations of the High Court that the appellant is not entitled to injunction, were unnecessary and beyond the scope of the appeal .
9. As the appellant is in possession of the suit property since 13.4.1952 and has been granted the decree of injunction, it obviously means that the possession of the appellant cannot be disturbed except by due process of law. We make it clear that though the suit of the appellant seeking relief of declaration has been dismissed, in case respondents file suit for possession and/or ejectment of the appellant, it would be open to the appellant to plead in defence that the appellant had become the owner of property by adverse possession. Needless to mention at this stage, the appellant shall also be at liberty to plead that findings of issue No.1 to the effect that the appellant is in possession of adverse possession since 13.4.1952 operates as res- judicata. Subject to this clarification, the appeal is dismissed".
The Apex Court in the aforesaid case has has held that no declaration or title can be sought on the basis of adverse possession.
16. The facts of the case further reveal that the plaintiff has come forward with a case that he has purchased the disputed property by a registered sale deed in 1962 from the owner thereof. The plaintiff has not filed any document to establish as to how the predecessor- in-title got the title, and therefore, in absence of the fact that the plaintiff has miserably failed to prove his title of predecessor, the learned Judge has erroneously passed the judgment and decree in favour of the plaintiffs. It is a well settled proposition of law that in a suit for declaration of title and permanent injunction, the plaintiff is required to prove his title by filing all documents of title.
First Appeal No.43/2003 717. The Hon'ble apex Court in the case of Chief Executing Officer v/s Surendar Kumar Vakil and others 1999 (1) JLJ 373 SC in paragraph-15 has held as under:-
"15. It is true that the appellants were also required to maintain a file/register of grants. They have not produced the file. The appellants, however, have led evidence to show that the concerned file of grants was stolen in the year 1985. They were, therefore, unable to produce the file pertaining to this grant. They do, however, have in their possession general land registers maintained under the Cantonment Land Administration Rules of 1925 in which they are required by these rules to maintain a record, inter alia, of the nature of the grant in respect of cantonment lands and the person in whose favour such grant is made. Both these registers are very old registers. They bear the endorsement of the officer who has maintained these registers in the regular course. These registers also show any subsequent changes made in respect of the lands under the relevant columns. Both these registers clearly show that the land is held on old grant basis by Mukherjee. The High Court seems to have rejected the record contained in the land grants registers on the ground that the terms of the grant have not been established because the document of grant itself has not been produced. The terms of the grant, however, are statutorily regulated under order No.179 of the Governor General in Council of 1836. The administration of lands in Cantonment areas is further regulated by the Cantonment Act, 1924 and the Cantonment Land Administration Rules of 1925. The 1836 Regulations expressly provide that the title to the land in cantonment areas cannot be transferred. But only occupancy rights can be given in respect of the land which remains capable of being resumed by the Government in the manner set out therein. There is no evidence to the contrary led by the respondents. In fact, under the amendment/admission deeds executed on 4/5.8.1983 the Vendors as well as the purchasers have stated that the site is wrongly mentioned as lease hold site instead of 'old grant' site in the four sale deeds. The mistake is being rectified by the execution of the four amending deeds clarifying that the Bungalow No.39 is held on 'old grant'. Undoubtedly, this was later retracted when cancellation deed was executed cancelling the amendment/admission deeds. Nevertheless, all the statutory provisions clearly indicate that the land being in the cantonment area was held by Mukherjee only as an occupant/licensee and that any transfer of the bungalow and other constructions on the said land required prior approval of the defence establishment. The power of attorney holder also corresponded with the Defence establishment and asked for mutation in favour of the purchasers.First Appeal No.43/2003 8
In the aforesaid judgment, the apex Court has held that in case plaintiff is filing a suit for declaration of title, all documents should be produced by him. Similar view has been taken by the Hon'ble apex Court in the case of Sebastiao Luis Fernandes v/s K.V.P. Shastri and others (2013) 15 SCC 161. The apex Court in paragraphs31, 32 and 36 has held as under:-
"31. After having heard learned Counsel for the plaintiff-appellants as well as defendants-respondents, we have to hold that the High Court has rightly held to the effect that it was primarily and essentially necessary for the plaintiff- appellants to establish their claim of ownership before they could invite the Court to address itself to the issue of their challenge to the title of the defendants-respondents to the suit schedule property. The plaintiff-appellants having failed to do so, their entire claim was liable to be rejected. The High Court further recorded the finding, that the factum of registration of the suit schedule property under No.16413 in favour of the defendants-respondents is not in dispute, yet the plaintiff- appellants have not produced on the record any document of inscription of the suit schedule property in their name. Therefore, the High Court has rightly come to the conclusion and held that the answer to the first substantial question of law is to be answered in the negative and held that since plaintiff- appellants have not produced any document of title in relation to the suit schedule property, the grant of decree in favour of them is erroneous in law.
32. Further, on the second substantial question of law, the High Court has rightly answered in favour of the defendants in the affirmative for the reason that the Courts below, without considering the denial made by the defendant No. 1 with regard to the ownership claim made by the plaintiff-appellants in respect of the suit schedule property, have come to the erroneous conclusion that there is no pleading of fact by the defendants-respondents and lack of evidence in favour of the plaintiff-appellants to prove their title to the suit schedule property. Therefore, the High Court has arrived at the right conclusion and held that the Courts below committed serious error in holding that there was admission of defendants in the pleadings with respect to ownership of 1/3rd of the suit schedule property by the plaintiff.
36. In the matter of onus of proof and burden of proof as per Secs. 101 and 102 of the Evidence Act, we have to hold that it was upon the plaintiff-appellants to furnish proof regarding ownership of 1/3rd share of the suit schedule property and discharge their burden of proof as per the afore-mentioned Sections".First Appeal No.43/2003 9
In light of the aforesaid judgment, it can severely be gathered that in case the plaintiff is filing a suit for declaration of title, he is certainly required to furnish proofs regarding ownership of the suit property and is required to discharge the burden to prove those documents. In the present case, neither title documents have been filed nor have been proved by the plaintiff.
18. Again, in the case of Union of India and others v/s Vasavi Co-operative Housing Society Limited and others 2014 (2) SCC 269, a similar view has been taken by the apex Court in paragraph 15 and 19, meaning thereby, a person who is claiming title, has to prove his title by filing all documents and by adducing evidence.
19. Apart from the aforesaid, a plaintiff can succeed only if he proves his case fully and cannot rely upon the weaknesses of the defendants. In the present case, the title documents were not proved. The plaintiff has miserably failed to prove his title and an adverse inference should have been drawn against the plaintiff for not filing the documents of title of his predecessor. The Hon'ble Apex Court in the case of State of Madhya Pradesh v/s Maharani Usha Devi AIR 2015 SC 2699 has taken the aforesaid view.
20. Mere long possession is not enough for proving the adverse possession and in particular in the present case, when the plaintiff came forward with the case that he has purchased the land and his possession is permissible. Apart from this, the plaintiff is also required to plead and prove since when his possession became adverse.
21. The Hon'ble Apex Court in the case of P.T. Munichikkanna Reddy v/s Revamma reported in A.I.R 2007 SC 1753 in paragraph- 12 has held as under:-
12. This brings us to the issue of mental element in adverse possession cases-intention.First Appeal No.43/2003 10
1. Positive Intention The aspect of positive intention is weakened in this case by the sale deeds dated 11.04.1934 and 5.07.1936. Intention is a mental element which is proved and disproved through positive acts. Existence of some events can go a long way to weaken the presumption of intention to dispossess which might have painstakingly grown out of long possession which otherwise would have sufficed in a standard adverse possession case.. The fact of possession is important in more than one ways: firstly, due compliance on this count attracts limitation act and it also assists the court to unearth as the intention to dispossess.
At this juncture, it would be in the fitness of circumstances to discuss intention to dispossess vis-`-vis intention to possess. This distinction can be marked very distinctively in the present circumstances. Importantly, intention to possess can not be substituted for intention to dispossess which is essential to prove adverse possession. The factum of possession in the instant case only goes on to objectively indicate intention to possess the land. As also has been noted by the High Court, if the appellant has purchased the land without the knowledge of earlier sale, then in that case the intention element is not of the variety and degree which is required for adverse possession to materialize.
The High Court observed:
"It is seen from the pleadings as well in evidence that the plaintiff came to know about the right of the defendants', only when disturbances were sought to be made to his possession."
In similar circumstances, in the case of Thakur Kishan Singh (dead) v. Arvind Kumar [(1994) 6 SCC 591] this court held:
"As regards adverse possession, it was not disputed even by the trial court that the appellant entered into possession over the land in dispute under a licence from the respondent for purposes of brick-kiln. The possession thus initially being permissive, the burden was heavy on the appellant to establish that it became adverse. A possession of a co-owner or of a licencee 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 permissible possession into adverse possession. Apart from it, the Appellate Court has gone into detail and after considering the evidence on record found it as a fact that the possession of the appellant was not adverse."
The present case is one of the few ones where even an unusually long undisturbed possession does not go on to prove First Appeal No.43/2003 11 the intention of the adverse possessor. This is a rare circumstance, which Clarke LJ in Lambeth London Borough Council v Blackburn (2001) 82 P & CR 494, 504 refers to: "I would not for my part think it appropriate to strain to hold that a trespasser who had established factual possession of the property for the necessary 12 years did not have the animus possidendi identified in the cases. I express that view for two reasons. The first is that the requirement that there be a sufficient manifestation of the intention provides protection for landowners and the second is that once it is held that the trespasser has factual possession it will very often be the case that he can establish the manifested intention. Indeed it is difficult to find a case in which there has been a clear finding of factual possession in which the claim to adverse possession has failed for lack of intention."
On intention, The Powell v. Macfarlane (1977) 38 P & CR (Property, Planning & Compensation Reports) 452 472 is quite illustrative and categorical, holding in the following terms: "If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ('animus possidendi')." .
If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.
In my judgment it is consistent with principle as well as authority that a person who originally entered another's land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner.
What is really meant, in my judgment, is that the animus possidendi involves the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow."
Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving (willful) or omission (negligent or otherwise) of right to defend or care for the integrity of property on the part First Appeal No.43/2003 12 of the paper owner of the land. Adverse possession statutes, like other statutes of limitation, rest on a public policy that do not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence.
While dealing with the aspect of intention in the Adverse possession law, it is important to understand its nuances from varied angles.
Intention implies knowledge on the part of adverse possessor. The case of Saroop Singh v. Banto and Others [(2005) 8 SCC 330] in that context held:
"29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendants possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak)
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. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd. Mohd. Ali v. Jagadish Kalita, SCC para
21.)"
A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by this Court in Karnataka Board of Wakf v. Government of India and Others [(2004) 10 SCC 779] in the following terms:
"Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show:
( a) on what date he came into possession,
(b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and ( e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession"
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 First Appeal No.43/2003 13 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.
In Narne Rama Murthy v. Ravula Somasundaram and Others [(2005) 6 SCC 614], this Court held:
"However, in cases where the question of limitation is a mixed question of fact and law and the suit does not appear to be barred by limitation on the face of it, then the facts necessary to prove limitation must be pleaded, an issue raised and then proved. In this case the question of limitation is intricately linked with the question whether the agreement to sell was entered into on behalf of all and whether possession was on behalf of all. It is also linked with the plea of adverse possession. Once on facts it has been found that the purchase was on behalf of all and that the possession was on behalf of all, then, in the absence of any open, hostile and overt act, there can be no adverse possession and the suit would also not be barred by limitation. The only hostile act which could be shown was the advertisement issued in 1989. The suit filed almost immediately thereafter."
The test is, as has been held in the case of R. v.
Oxfordshire County Council and Others, Ex Parte Sunningwell Parish Council [1999] 3 ALL ER 385; [1999] 3 WLR 160:
Bright v. Walker (1834) 1 Cr. M. & R. 211, 219, "openly and in the manner that a person rightfully entitled would have used it. . ." The presumption arises, as Fry J. said of prescription generally in Dalton v. Angus (1881) 6 App.Cas. 740, 773, from acquiescence.
The case concerned interpretation of section 22(1) of the Commons Registration Act 1965. Section 22(1) defined "town or village green" as including " land on which the inhabitants of any locality have indulged in [lawful] sports and pastimes as of right for not less than 20 years."
It was observed that the inhabitants' use of the land for sports and pastimes did not constitute the use "as of right". The belief that they had the right to do so was found to be lacking. The House held that they did not have to have a personal belief in their right to use the land. The court observed: "the words 'as of right' import the absence of any of the three characteristics of compulsion, secrecy or licence 'nec vi, nec clam, nec precario', phraseology borrowed from the law of easements."
Later in the case of Beresford, R (on the application of) v. City of Sunderland [2003] 3 WLR 1306, [2004] 1 All ER 160 same test was referred to.
Thus the test of nec vi, nec clam, nec precario i.e., "not by First Appeal No.43/2003 14 force, nor stealth, nor the license of the owner" has been an established notion in law relating to the whole range of similarly situated concepts such as easement, prescription, public dedication, limitation and adverse possession.
In Karnataka Wakf Board (Supra), the law was stated, thus:
"In the eye of 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. (See : S M Karim v. Bibi Sakinal AIR 1964 SC 1254, Parsinni v. Sukhi ( 1993 ) 4 SCC 375 and D N Venkatarayappa v. State of Karnataka (1997) 7 SCC567.) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and
(e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour.
Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."
2. Inquiry into the particulars of Adverse Possession Inquiry into the starting point of adverse possession i.e. dates as to when the paper owner got dispossessed is an important aspect to be considered. In the instant case the starting point of adverse possession and Other facts such as the manner in which the possession operationalized, nature of possession:
whether open, continuous, uninterrupted or hostile possession
- have not been disclosed. An observation has been made in this regard in S.M. Karim v. Mst. Bibi Sakina [AIR 1964 SC 1254]: "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 First Appeal No.43/2003 15 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." Also mention as to the real owner of the property must be specifically made in an adverse possession claim. In Karnataka Wakf Board (Supra), it is stated: "Plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. In P Periasami v. P Periathambi ( 1995 ) 6 SCC 523 this Court ruled that -
"Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property." The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar ( 1996 ) 1 SCC 639 that is similar to the case in hand, this Court held: "As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right there under 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. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.""
3. New Paradigm to Limitation Act The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned: once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession. The ingredients of adverse possession have succinctly been stated by this Court in S.M. Karim v. Mst. Bibi Sakina [AIR 1964 SC 1254] in the following terms:
"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 First Appeal No.43/2003 16 limitation against the party affected can be found"
[See also M. Durai v. Madhu and Others 2007 (2) SCALE 309] The aforementioned principle has been reiterated by this Court in Saroop Singh v. Banto and Others [(2005) 8 SCC 330] stating: "29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendants possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak)
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. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd. Mohd. Ali v. Jagadish Kalita, SCC para
21.)"
In Mohammadbhai Kasambhai Sheikh and Others v. Abdulla Kasambhai Sheikh [(2004) 13 SCC 385], this Court held: "But as has been held in Mahomedally Tyebally v. Safiabai the heirs of Mohammedans (which the parties before us are) succeed to the estate in specific shares as tenants-in-common and a suit by an heir for his/her share was governed, as regards immovable property, by Article 144 of the Limitation Act, 1908. Article 144 of the Limitation Act, 1908 has been materially re-enacted as Article 65 of the Limitation Act, 1963 and provides that the suit for possession of immovable property or any interest therein based on title must be filed within a period of 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. Therefore, unless the defendant raises the defence of adverse possession to a claim for a share by an heir to ancestral property, he cannot also raise an issue relating to the limitation of the plaintiffs claim"
The question has been considered at some length recently in T. Anjanappa and Others v. Somalingappa and Another [(2006) 7 SCC 570], wherein it was opined :
"The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. 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. Above being the position the High Court's judgment is clearly unsustainable".
22. In the case of Ramdas v/s Sitabai and others (2009) SCC (7) First Appeal No.43/2003 17 444, it has been held by the apex Court that the predecessor could not have a better title than what his vendor had and a person cannot transfer title beyond his own right. Paragraph-14 to 19 and 21 to 25 reads as under:-
"14. We have considered the aforesaid contentions in the light of the relevant records. All the four properties which constitute the suit property belonged to Sukha who was the absolute owner of the said four property. After the death of Sukha, all the aforesaid four property was jointly owned and possessed by the plaintiff-Sitabai and defendant No.1-Sudam as the natural heirs and legal representatives of the deceased Sukha.
15. It could not also be disputed that all the aforesaid 4 plots of land which are the suit property were joint property and therefore, the plaintiff-Sitabai and defendant No. 1-Sudam owned and possessed half undivided share each in all the 4 properties. The defendant No.1- Sudam who is the brother of the plaintiff-Sitabai could not have therefore sold the entire Gat No. 19 area admeasuring 2.56H of Mouza Padoli in favour of the defendant No. 3-Ramdas (appellant herein) in as much as the aforesaid land was undivided and the plaintiff-Sitabai and defendant No. 1-Sudam were two co-sharers in the said property. In that view of the matter, the High Court was correct and legally justified in declaring the plaintiff-Sitabai as the owner and holder of half of the shares in all the four aforesaid properties which are undivided. The defendant No.1- Sudam being a co-sharer could not have sold by a registered sale deed more than his share nor could he have delivered possession till the said property is partitioned by the parties amicably or through the intervention of the Court according to their share.
16. It is settled law under the Transfer of Property Act, that a purchaser cannot have a better title than what his vender had. The possession which is claimed by the defendant No. 3- Ramdas (appellant herein) in respect of the entire land bearing Gat No. 19 area admeasuring 2.56H of Mouza Padoli was also illegal and without proper sanction of law. So long as the property is joint and not- partitioned, the defendant no. 3- Ramdas (appellant herein) is not entitled to get possession of the said land. Even otherwise, the appellant herein having purchased the land from defendant No.1- Sudam could be entitled to be declared at the most to the extent of half share of the said piece of land having stepped into the shoes of his vendor and could not have asked for and claimed ownership and possession over the entire land of Gat No. 19 admeasuring 2.56 H.R.
17. Without there being any physical formal partition of an undivided landed property, a co-sharer cannot put a vendee in First Appeal No.43/2003 18 possession although such a co-sharer may have a right to transfer his undivided share. Reliance in this regard may be placed to a decision of this Court in M.V.S. Manikayala Rao Vs. M. Narasimhaswami & Ors. [AIR 1966 SC 470], wherein this Court stated as follows:
"Now, it is well settled that the purchaser of a co- parcener's undivided interest in the joint family property is not entitled to possession of what he had purchased. His only right is to sue for partition of the property and ask for allotment to him of that which, on partition, might be found to fall to the share of the co- parcener whose share he had purchased."
18. It may be mentioned herein that the aforesaid findings and the conclusions were recorded by the Supreme Court by placing reliance upon an earlier judgment of this Court in Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh & Ors. [AIR 1953 SC 487], wherein this Court held as under:-
"All that (vendee) purchased at the execution sale, was the undivided interest of co-parcener in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work-out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour (Emphasis added)
19. In view of the aforesaid position there could be no dispute with regard to the fact that an undivided share of co-sharer may be a subject matter of sale, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds amicably and through mutual settlement or by a decree of the Court".
21. Therefore, what the appellant has claimed is only half share of the said property. The said issue has been considered at length by the High Court in its impugned judgment. The High Court has recorded the statement made by the counsel appearing for the defendant No.3- Ramdass (appellant herein) that the action of the Additional District Judge in declaring that the said sale deed as null and void was not proper to the extent of the shares of plaintiff- Sitabai in the Gat No. 19 area admeasuring 2.56H of Mouza Padoli. Therefore, the fact that the plaintiff-Sitabai was entitled to her half share in the aforesaid property is an admitted position and on that basis the consent decree was passed. Even otherwise, we are of the considered opinion that the appellant herein having purchased only undivided share in the aforesaid property could not have purchased, owned and claimed for more than half share in the said property nor the appellant could have claimed possession First Appeal No.43/2003 19 in respect of the entire property.
22. The appellant herein has further claimed relief on the ground of equity. However, we do not find any reason to hold in favour of the appellant even on the ground of equity as the appellant herein himself is responsible for his act in purchasing undivided share in a part of the suit property without the knowledge and consent of the co- sharer. Besides, indisputably and as held by the Trial Court, the land in Gat No. 19 is extremely valuable and, therefore, the question of equity does not arise as we would be doing injustice to one having title and ownership if we accept the prayer of the appellant.
23. Consequently, we find no reason to interfere with the judgment and order passed by the High Court and therefore we are of the considered view that the decrees passed by the first appellate court and the High Court are in accordance with law. The same are affirmed.
24. Accordingly, we issue a direction to appellant herein to handover possession of field Gat No. 19 area admeasuring 2.56H of Mouza Padoli, Tahsil & Distt., Chandrapur to the plaintiff-Sitabai within a period of three months from today failing which the plaintiff-Sitabai would be entitled to initiate appropriate proceedings for execution of the decree in which case possession of the half portion of the aforesaid property shall be made and given in favour of the plaintiff-Sitabai.
25. In terms of the aforesaid observations and directions this appeal is dismissed with costs.
In light of the aforesaid judgment, as the plaintiff has miserably failed to prove the title of his predecessor and his title, the question of granting a decree in the peculiar facts and circumstances of the case doesn't arise and judgment and decree passed by the trial Court deserves to be set aside.
23. Another important aspect of the case is that the plaintiff has taken shelter of certain proceedings initiated by the Collector for acquiring the suit property.
24. Exhibit-P/51 is a letter requesting the Collector by the Municipal Corporation to acquire a part of the land for construction of cloth market. Even if such a letter has been written by the Municipal Corporation, it will not confer title upon the plaintiff. Not only this, any proceedings initiated by Land Acquisition First Appeal No.43/2003 20 Officer erroneously, contrary to law for acquiring the land, which is exclusively under the ownership of the State of Government or its instrumentality will not confer the title upon the plaintiff or upon the predecessor-in-title.
Therefore, in the considered opinion of this Court, the judgment and decree passed by the trial Court deserves to set aside, and accordingly, set aside. Suit is dismissed and a decree be drawn accordingly.
Certified copy as per rules.
(S.C. Sharma) Judge Ravi Ravi Digitally signed by Ravi Prakash DN: c=IN, o=High Court of Madhya Pradesh, ou=Administration, postalCode=452001, st=Madhya Pradesh, Prakash 2.5.4.20=8c41d94e3639781a0083754cf332 13a20de4d0ca6c70fb2b3437951134024cc 4, cn=Ravi Prakash Date: 2018.02.10 11:19:46 +05'30'