Allahabad High Court
Bhikhari vs D.D.C. & Others on 10 January, 2018
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 34 Case :- WRIT - B No. - 2892 of 1978 Petitioner :- Bhikhari Respondent :- D.D.C. & Others Counsel for Petitioner :- S.N. Srivastava,Sudhanshu Srivastava Counsel for Respondent :- S.C.,G.P. Singh,Gaya Prasad Singh,Sukh Ram Singh,V.R. Verma,V.R.Verma,Vrij Raj Verma Hon'ble Sudhir Agarwal,J.
1. Heard Sri Rajesh Kumar Srivastava, Advocate holding brief of Sri Sudhanshu Srivastava, learned counsel for petitioner and Sri G.P. Singh, learned counsel for respondents.
2. This writ petition under Article 226 of the Constitution of India has arisen from the order dated 23.12.1977 passed by Deputy Director Consolidation (hereinafter to be referred as 'DDC') partly allowing three revisions by a common order passed under Section 48 of U.P. Consolidation of Holdings Act, 1953 (hereinafter to be referred as 'Act, 1953') making alteration in allotment of chak made by Settlement Officer, Consolidation (hereinafter to be referred as 'SOC').
3. Petitioner Bhikhari (now deceased and substituted by legal heirs) claimed to be a chak holder of chak no. 191 while Maharaji (respondent no. 3) (now deceased and substituted by legal heirs) was holder of chak no. 201. Original holding of petitioner's chak consisted of 20 plots with a total area 2.63 acres. It was splitted in two parts therefore, Assistant Consolidation Officer (hereinafter to be referred as 'ACO') allotted a single chak consisting of 21 plots, area 3.3 acres. Respondent 3 filed an objection under Section 20 for change of chak. It was allowed by Consolidation Officer (hereinafter to be referred as 'CO') and position of chak was altered vide order dated 25.03.1975. Aggrieved thereto, appeal was filed by petitioner before SOC which was allowed vide order dated 28.04.1975 where against three revisions were filed which have been decided by impugned order passed by DDC.
4. Learned counsel for petitioner submitted that DDC while allowing revisions under Section 48 of Act, 1953 by means of impugned judgment has made alterations in chak but no reason has been given as to why order passed by SOC was erroneous, warranting interference under Section 48 and therefore, impugned order passed by SOC is patently without jurisdiction.
5. Learned counsel appearing for contesting respondents submitted that chak of respondent 3 was not properly carved out and allotted, hence DDC has made alterations.
6. The scope of power exercised by DDC under Section 48 precedes the condition that it can interfere with the order passed by SOC or any authority below him, only, if there is any manifest error, jurisdictional or otherwise or great injustice has been done. Scope of revisional power of DDC under Section 48 of Act, 1953 has been examined time and again. Scheme of statute contemplates a tentative plan, inviting objection from stake-holder, i.e. tenure holder, and, after considering the same, finalization of plan, i.e., allotment of Chaks. Thereagainst appellate power has been conferred upon SOC under Section 21(2) of Act 1953. The power which is exercised by DDC, is termed "Revision and reference" under Section 48 of Act, 1953.
7. Original Section 48, as enacted, initially read as under:
"48. Revision.- Director of Consolidation may call for the record of any case if the Officer (other than the Arbitrator) by whom the case was decided appears to have exercised a jurisdiction not vested in him by law or to have failed to exercise jurisdiction so vested, or to have acted in the exercise of his jurisdiction illegally or with substantial irregularity and may pass such orders in the case as it thinks fit."
8. It was amended by substitution by U.P. Act No. 24 of 1956 as under:
"48. Powers of Director of Consolidation to call for records and to revise orders.- The Director of Consolidation may call for the record of any case or proceeding if the Officer (other than the Arbitrator) by whom the case was decided or proceeding taken appears to have exercised jurisdiction not vested in him by law or to have failed to exercise jurisdiction so vested, or to have acted in the exercise of his jurisdiction illegally or with substantial irregularity and may pass such orders in the case as it thinks fit."
9. Within a short period, it was again amended by U.P. Amendment Act No.38 of 1958 as under:
"48. Revision.- The Director of Consolidation may call for the record of any case decided or proceedings taken, where he is of opinion that a Deputy Director, Consolidation has -
(i) exercised jurisdiction not vested in him in law, or
(ii) failed to exercise jurisdiction vested in him, or
(iii) acted in the exercise of his jurisdiction illegally or with substantial irregularity, and as a result of which, substantial injustice appears to have been caused to a tenure-holder and he may4, after affording reasonable opportunity of hearing to the parties concerned, pass such order in the case or proceeding as he thinks fit."
10. Section 48 as noted above came on statute book by way of Section 39 of U.P. (Amendment) Act No. VIII of 1963. Major amendment came to be made by U.P. Act No. 20 of 1982 inasmuch as, in sub section(1) the words "other than an interlocutory order" were inserted w.e.f. 10.11.1980. An Explanation was added by Act No. 4 of 1969 with retrospective effect. It was re-numbered as Explanation-(1) by Act No. 20 of 1982 w.e.f. 10.11.1980 and then Explanation(2) was added w.e.f. 10.11.1980.
11. Presently, Section 48 reads as under:
"48. Revision and reference.-(1) The Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings; or as to the correctness, legality or propriety of any order [other than interlocutory order] passed by such authority in the case of proceedings and may, after allowing the parties concerned an opportunity of being heard, make such order in the case of proceedings as he thinks fit.
(2) Powers under Sub-section (1) may be exercised by the Director of Consolidation also on a reference under Sub-section (3).
(3) Any authority subordinate to the Director of Consolidation may, after allowing the parties concerned an opportunity of being heard, refer the record of any case or proceedings to the Director of Consolidation for action under subsection (1).
Explanation (1) - For the purposes of this section, Settlement Officer, Consolidation, Consolidation Officers, Assistant Consolidation Officers, Consolidator and Consolidation Lekhpals shall be subordinate to the Director of Consolidation.
Explanation (2). For the purpose of this section the expression 'interlocutory order' in relation to a case or proceedings, means such order deciding any matter arising in such case or proceeding or collateral thereto as does not have the effect of finally disposing of such case or proceeding.
Explanation (3).- The power under this section to examine the correctness, legality or propriety of any order includes the power to examine any finding, whether of fact or law, recorded by any subordinate authority, and also includes the power to re-appreciate any oral or documentary evidence."
(emphasis added)
12. Section 48 as it was initially enacted came to be considered in Sher Singh (dead) Vs. Joint Director of Consolidation and others (1978) 3 SCC 172 Court observed that a bare reading thereof makes it clear that it is pari materia with Section 115 CPC which confines revisional jurisdiction of High Court to cases of illegal or irregular exercise or non exercise or illegal assumption of jurisdiction by subordinate Courts. If a subordinate court is found to possess jurisdiction to decide a matter, it cannot be said to exercise it illegally or with' material irregularity even it it decides the matter wrongly. Relying on the cases interpreting Section 115 CPC, Court held that whatever revisional jurisdiction was available to High Court under Section 115, same was the scope of revisional jurisdiction of DDC under Section 48 of Act, 1953. It has no jurisdiction to go into errors of facts. Court further said that an erroneous decision on a question of fact or law reached, by subordinate court, which has no relation to question of jurisdiction of that court, cannot be corrected by High Court under Section 115 CPC and same would apply to DDC under Section 48 as it stood originally under Act 1953. Court observed that consolidation authorities, subordinate to Joint Director, possess plenary jurisdiction and competent to go into the question of correctness or otherwise of entries in revenue records. If there are concurrent findings of fact of two Courts, which do not leave any ground, as observed above, with reference to revisional jurisdiction, interference by Joint Director of Consolidation would not be competent. In para 16 of judgement, Court said:
"Thus the subordinate Consolidation authorities not having acted illegally in exercising their jurisdiction, the Joint Director of Consolidation was not competent to interfere with their decisions."
13. Section 48 as amended in 1963 came to be considered in Ramakant Singh Vs. Deputy Director of Consolidation, U.P. and others AIR 1975 All 126 but therein Court confined its consideration to Section 48(1) only to the question, whether Deputy Director of Consolidation once has called for record, is it incumbent on him to decide the matter on merit or it can decline and dismiss revision on any technical ground like lack of impleadment of proper party etc.
14. Amended section 48 in 1963, then came to be considered by Supreme Court in Shanti Prakash Gupta Vs. DDC 1981 SCC (Suppl) 73 and therein Court observed that Section 48 as then stood, vide amendment of 1963, was wider than Section 115 CPC. However, it proceeded to hold that Director should not lightly interfere with discretion of C.O. unless order sought to be reversed is palpably erroneous or likely to cause miscarriage of justice. To the same effect and imposing similar restriction, observations were made in Ram Dular Vs. Dy. Director of Consolidation (1994) Supp(2)SCC 198, which are under:
"It is clear that the Director had power to satisfy himself as to the legality of the proceedings or as to the correctness of the proceedings or correctness, legality or propriety of any order other than interlocutory order passed by the authorities under the Act. But in considering the correctness, legality or propriety of the order or correctness of the proceedings or regularity thereof it cannot assume to itself the jurisdiction of the original authority as a fact-finding authority by appreciating for itself of those facts de novo. It has to consider whether the legally admissible evidence had not been considered by the authorities in recording a finding of fact or law or the conclusion reached by it is based on no evidence, any patent illegality or impropriety had been committed or there was any procedural irregularity, which goes to the root of the matter, had been committed in recording the order or finding."
(emphasis added)
15. A slight different form of observation came to be made in Preetam Singh Vs. Assistant Director of Consolidation and others (1996) 2 SCC 270 where Court said:
"When the matter was in revision before the Assistant director (Consolidation), he had the entire matter before him and his jurisdiction was unfettered. While in seisin of the matter in his revisional jurisdiction, he was in complete control and in position to test the correctness of the order made by the Settlement Officer (Consolidation) effecting remand. In other words, in exercise of revisional jurisdiction the Assistant Director (Consolidation) could examine the finding recorded by the Settlement Officer as to the abandonment of the land in dispute by those tenants who had been recorded at the crucial time in the Khasra of 1359 Fasli. That power as a superior court the Assistant Director (Consolidation) had, even if the remand order of the Settlement Officer had not been specifically put to challenge in separate and independent proceedings. It is noteworthy that the Court of the Assistant Director (Consolidation) is a court of revisional jurisdiction otherwise having suo moto power to correct any order of the subordinate officer. In this situation the Assistant Director (Consolidation) should not have felt fettered in doing complete justice between the parties when the entire matter was before him. The war of legalistics fought in the High Court was of no material benefit to the appellants. A decision on merit covering the entire controversy was due from the Assistant Director (Consolidation). (para -6) (emphasis added)
16. Yet in Ram Avtar Vs. Ram Dhani, AIR 1997 SC 107, the Court, in para 8, observed:
"This Court has repeatedly pointed out that howsoever wide the power under statutory revision may be in contrast to Section 115 of the Code of Civil Procedure, still while exercising that power the authority concerned cannot act as a Court of appeal so as to appreciate the evidence on record for recording findings on question of fact."
(emphasis added)
17. These observations again put the things in the shape, bringing scope of jurisdiction under Section 48, nearer to jurisdiction as contained in Section 115 CPC.
18. Section 48(1) as it stood before its amendment in 1963 and subsequent thereto, both came to be noticed in Sheshmani and another vs. The Deputy Director of Consolidation, District Basti, U.P. and others 2000(2)SCC 523. Referring to earlier decision in Sher Singh Vs. Joint Director of Consolidation (supra) and Ram Dular Vs. DDC (supra), and, the intervening amendment, Court followed the observations made in Ram Dular Vs. DDC (supra), as noticed above, and then upheld order passed by DDC holding that orders of CO and Additional Settlement Consolidation Officer were against settled principles of law, therefore, DDC was justified in exercise of revisional power, for coming to a different conclusion.
19. It is in these circumstances, Legislature intervened by inserting Explanation-3 vide U.P. Act No. 3 of 2002, giving effect from 10.11.1980. In Karan Singh Vs. DDC 2003(94)RD 382, this Court, however, said that even after addition of Explanation-3, DDC cannot substitute its own finding in place of subordinate authorities.
20. In a recent decision in Jagdamba Prasad Vs. Kripa Shankar (2014) 5 SCC 707, Court has considered Section 48 as amended in 1963, but thereafter in para 15, following earlier decision in Sher Singh Vs. Joint Director of Consolidation (supra), has said as under:
"15. According to the legal principle laid down by this Court in the case mentioned above, the power of the Revisional Authority under Section 48 of the Act only extends to ascertaining whether the subordinate courts have exceeded their jurisdiction in coming to the conclusion. Therefore, if the Original and Appellate Authorities are within their jurisdiction, the Revisional Authority cannot exceed its jurisdiction to come to a contrary conclusion by admitting new facts either in the form of documents or otherwise, to come to the conclusion. Therefore, we answer point no. 1 in favour of the appellants by holding that the Revisional Authority exceeded its jurisdiction under Section 48 of the Act by admitting documents at revision stage and altering the decision of the subordinate courts."
(emphasis added)
21. It is thus difficult to observe that Explanation III to Section 48 has brought scope of revision at par with appellate jurisdiction so as to assess evidence on pure issue of fact and recording findings de novo. Revisional power is not a power of first or second appellate Court which are Courts of fact. The findings recorded therein would be possible to be interfered under Section 48 only on the grounds, discussed in Ram Dular (Supra), Sheshmani (Supra) and Jagdamba Prasad (supra).
22. Recently, this Court has examined power of revisional authority in detail in Ram Udit Vs. D.D.C. & others (Writ S/S no. 885 of 2001) (Lucknow Bench), decided on 24.09.2014. This Court in para 26 of the jdugment, has observed:
"....... From a bare and plain reading of Section 48(1) it is evident that Director of Consolidation has been given power to call for and examine any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself (i) to the regularity of the proceedings and (ii) to the correctness, legality or propriety of any order."
23. From record what transpired is that there was an agreement dated 28.09.1930, claimed to have been executed by Smt. Jairaji, (respondent no.2), relinquishing her rights in entire holdings in favour of Hanuman. However, the fact that she instituted Original Suit No. 39 of 1939 against Hanuman in respect of the same holdings, which resulted in a compromise decree dated 21.12.1940, wherein there was a conditional relinquishment of right of respondent no.2 in respect of entire holdings, subject to payment of maintenance @ Rs. 10/-per month, leaves no manner of doubt that alleged agreement dated 28.09.1930 did not result in so-called relinquishment of rights of respondent no.2 in respect of holdings in question, otherwise, there could not have been any occasion or reason for Hanuman to go for a compromise in the aforesaid suit. Suit having not been decided in favour of Hanuman on the basis of alleged agreement dated 28.09.1930, but through a compromise decree, it is not necessary for this Court at this stage to look back upon the legal status of said agreement, since compromise decree dated 21.12.1940, between the same parties, is already holding the field and would have its own legal consequence. Therefore, rights of parties would have to be governed therewith and not on the basis of any earlier document.
24. Vachaspati and Kamla Devi, both are offshoots of Hanuman. Therefore, their rights would flow from Hanuman and they cannot go beyond that. If Hanuman would have his own rights over the property in dispute, same could have been carried by his offshoots and not otherwise and also not beyond that what he himself possessed, if any. Therefore, compromise decree dated 21.12.1940 would hold the field and agreement dated 28.09.1930 would have to pave way to that extent.
25. Then comes another Suit No. 268 of 1949 filed by respondent 2. Therein also respondent 2 succeeded. It is not in dispute that in the aforesaid suit, amount of maintenance payable to respondent 2 was increased to Rs. 25/-, per month. Revisional Court has held that amount of maintenance was not paid to respondent 2 and, therefore, she continued to remain in possession of disputed holdings. In order to accept her possession, he has referred to certain Revenue record and admission of Vachaspati as also the fact that suit under section 209 of UPZA and LR Act, was instituted by Kamla Devi, but dismissed. DDC has recorded a finding that continuous possession of respondent 2 stands proved and nothing trustworthy or credible evidence could be led by petitioners to justify, any view, otherwise. To this extent, I find no illegality in what has been held and said by DDC.
26. Having said so, however, Revisional Court then has held that on the basis of 'adverse possession', respondent 2 is entitled to right over plots in dispute i.e., plots no. 30/2, 37/1, 43/1, 43/2 and 87. Grove land has been dealt with differently and, therefore, is not governed by the aforesaid finding. In my view, application of 'adverse possession' in favour of respondent 2, without considering nature of possession and other ingredients of doctrine of adverse possession, is clearly misconceived, and an erroneous approach on the part of DDC and inapplicable in the case in hand. On this aspect, unfortunately, nothing has been discussed except of referring and holding adverse possession . Before giving a finding on adverse possession, Court is obliged to consider all integral facets, which constitute the said kind of possession, having effect of extinction of title of real owner, transferring it to the person who held land in hostile possession.
27. 'Adverse possession' is a substantive plea of fact and law. It needs specific pleadings and evidence. Law of 'adverse possession' is no more res integra and has been dealt with in detail, time and again.
28. To understand the concept of "adverse possession" it would be necessary to have an in depth idea about the concept of "possession" and "ownership" in respect to immovable property.
29. A retrospect of ancient past, would reveal that the concept of possession in ancient laws in different civilizations was known to the mankind. A comparative study, I find, in the work of "Sir Henry Sumner Maine" (in short 'Maine') who wrote 'Ancient Law'. He is considered to be the founder of comparative jurisprudence of ancient laws. Much earlier, in 1861 AD, comparative jurisprudence under the heading "Ancient Law"-Its connection with the Early History of Society and its Relation to Modern Ideas, was written by "Sir Henry Sumner Maine". The edition before Court is one published by Dorset Press in 1986 at United States of America.
30. The concept of possession has been discussed by "Sir Maine" in Chapter-VIII under the heading "The Early History of Property". Referring to "natural modes of acquiring property", known in Roman law, he has said:
"The wild animal which is snared or killed by the hunter, the soil which is added to our field by the imperceptible deposits of a river, the tree which strikes its roots into our ground, are each said by the Roman lawyers to be acquired by us naturally." (Page 203)
31. One of the mode of possession is occupation or occupancy. "Sir Maine" further says :
"Occupancy is the advisedly taking possession of that which at the moment is the property of no man, with the view (adds the technical definition) of acquiring property in it for yourself. The objects which the Roman lawyers called res nullius--things which have not or have never had an owner--can only be ascertained by enumerating them. Among things which never had an owner are wild animals, fishes, wild fowl, jewels disinterred for the first time, and lands newly discovered or never before cultivated. Among things which have not an owner are moveables which have been abandoned, lands which have been deserted, and (an anomalous but most formidable item) the property of an enemy. In all these objects the full rights of dominion were acquired by the Occupant, who first took possession of them with the intention of keeping them as his own--an intention which, in certain cases, had to be manifested by specific acts." (Page 203) "If the Roman law of Occupancy is to be taxed with having had permicious influence on any part of the modern Law of Nations, there is another chapter in it which may be said, with some reason, to have been injuriously affected. In applying to the discovery of new countries the same principles which the Romans had applied to the finding of a jewel, the Publicists forced into their service a doctrine altogether unequal to the task expected from it. Elevated into extreme importance by the discoveries of the great navigators of the 15th and 16th centuries, it raised more disputes than it solved. The greatest uncertainty was very shortly found to exist on the very two points on which certainty was most required, the extent of the territory which was acquired for his sovereign by the discoverer, and the nature of the acts which were necessary to complete the adprehensio or assumption of sovereign possession. Moreover, the principle itself, conferring as it did such enormous advantages as the consequence of a piece of good luck, was instinctively mutinied against by some of the most adventurous nations in Europe, the Dutch, the English, and the Portuguese. Our own countrymen, without expressly denying the rule of International Law, never did, in practice, admit the claim of the Spaniards to engross the whole of America south of the Gulf of Maxico, or that of the King of France to monopolise the valleys of the Ohio and the Mississippi. From the accession of Elizabeth to the accession of Charles the Second, it cannot be said that there was at any time thorough peace in the American waters, and the encroachments of the New England Colonists on the territory of the French King continued for almost a century longer. Bentham was so struck with the confusion attending the application of the legal principle, that he went out of his way of eulogise the famous Bull of Pope Alexander the Sixth, dividing the undiscovered countries of the world between the Spaniards and Portuguese by a line drawn one hundred leagues West of the Azores; and, grotesque as his praises may appear at first sight, it may be doubted whether the arrangement of Pope Alexander is absurder in principle than the rule of Public Law, which gave half a continent to the monarch whose servants had fulfilled the conditions required by Roman jurisprudence for the acquisition of property in a valuable object which could be covered by the hand." (Page 206-207) "To all who pursue the inquiries which are the subject of this volume Occupancy is pre-eminently interesting on the score of the service it has been made to perform for speculative jurisprudence, in furnishing a supposed explanation of the origin of private property. It was once universally believed that the proceeding implied in Occupancy was identical with the process by which the earth and its fruits, which were at first in common, became the allowed property of individuals. The course of thought which led to this assumption is not difficult to understand, if we seize the shade of difference which separates the ancient from the modern conception of Natural Law. The Roman lawyers had laid down that Occupancy was one of the Natural modes of acquiring property, and they undoubtedly believed that, were mankind living under the institutions of Nature, Occupancy would be one of their practices. How far they persuaded themselves that such a condition of the race had ever existed, is a point, as I have already stated, which their language leaves in much uncertainty; but they certainly do seem to have made the conjecture, which has at all times possessed much plausibility, that the institution of property was not so old as the existence of mankind. Modern jurisprudence, accepting all their dogmas without reservation, went far beyond them in the eager curiosity with which it dwelt on the supposed state of Nature. Since then it had received the position that the earth and its fruits were once res nullius, and since its peculiar view of Nature led it to assume without hesitation that the human race had actually practised the Occupancy of res nullius long before the organisation of civil societies, the inference immediately suggested itself that Occupancy was the process by which the 'no man's goods' of the primitive world became the private property of individuals in the world of history." (Page 207-208) (emphasis added)
32. Explaining "occupancy", Maine observes :
"Occupancy first gave a right against the world to an exclusive but temporary enjoyment, and that afterwards this right, while it remained exclusive, became perpetual. Their object in so stating their theory was to reconcile the doctrine that in the state of Nature res nullius became property through Occupancy, with the inference which they drew from the Scriptural history that the Patriarchs did not at first permanently appropriate the soil which had been grazed over by their flocks and herds." (Page 209-210) (emphasis added)
33. Referring to 'Savigny', 'Sir Maine' observed:
"It is not wonderful that property began in adverse possession. It is not surprising that the first proprietor should have been the strong man armed who kept his goods in peace. But why it was that lapse of time created a sentiment of respect for his possession--which is the exact source of the universal reverence of mankind for that which has for a long period de facto existed--are questions really deserving the profoundest examination, but lying far beyond the boundary of our present inquiries." (Page 212) "Occupancy is the advised assumption of physical possession; and the notion that an act of this description confers a title to 'res nullius', so far from being characteristic of very early societies, is in all probability the growth of a refined jurisprudence and of a settled condition of the laws. It is only when the rights of property have gained a sanction from long practical inviolability, and when the vast majority of the objects of enjoyment have been subjected to private ownership, that mere possession is allowed to invest the first possessor with dominion over commodities in which no prior proprietorship has been asserted. The sentiment in which this doctrine originated is absolutely irreconcilable with that infrequency and uncertainty of proprietary rights which distinguish the beginnings of civilisation. Its true basis seems to be, not an instinctive bias towards the institution of Property, but a presumption, arising out of the long continuance of that institution, that everything ought to have an owner. When possession is taken of a 'res nullius', that is, of an object which is not, or has never been, reduced to dominion, the possessor is permitted to become proprietor from a feeling that all valuable things are naturally the subjects of an exclusive enjoyment, and that in the given case there is no one to invest with the right of property except the Occupant. The Occupant in short, becomes the owner, because all things are presumed to be somebody's property and because no one can be pointed out as having a better right than he to the proprietorship of this particular thing." (Page 212-213) (emphasis added)
34. Referring to "laws of ownership" followed in India by Hindus, 'Sir Maine' says:
"The Roman jurisprudence will not here assist in enlightening us, for it is exactly the Roman jurisprudence which, transformed by the theory of Natural Law, has bequeathed to the moderns the impression that individual ownership is the normal state of proprietary right, and that ownership in common by groups of men is only the exception to a general rules. There is, however, one community which will always be carefully examined by the inquirer who is in quest of any lost institution of primeval society. How far soever any such institution may have undergone change among the branch of the Indo-European family which has been settled for ages in India, it will seldom be found to have entirely cast aside the shell in which it was originally reared. It happens that, among the Hindoos, we do find a form of ownership which ought at once to rivet our attention from its exactly fitting in with the ideas which our studies in the Law of Persons would lead us to entertain respecting the original condition of property. The Village Community of India is at once an organised patriarchal society and an assemblage of co-proprietors. The personal relations to each other of the men who compose it are indistinguishably confounded with their proprietary rights, and to the attempts of English functionaries to separate the two may be assigned some of the most formidable miscarriages of Anglo-Indian administration. The Village Community is known to be of immense antiquity. In whatever direction research has been pushed into Indian history, general or local, it has always found the Community in existence at the farthest point of its progress. A great number of intelligent and observant writers, most of whom had no theory of any sort to support concerning its nature and origin, agree in considering it the least destructible institution of a society which never willingly surrenders any one of its usages to innovation. Conquests and revolutions seem to have swept over it without disturbing or displacing it, and the most beneficient systems of government in India have always been those which have recognised it as the basis of administration. The mature Roman law, and modern jurisprudence following in its wake, look upon co-ownership as an exceptional and momentary condition of the rights of property. This view is clearly indicated in the maxim which obtains universally in Western Europe, Nemo in communione potest invitus detineri ('No one can be kept in co-proprietorship against his will'). But in India this order of ideas is reversed, and it may be said that separate proprietorship is always on its way to become proprietorship in common. The process has been adverted to already. As soon as a son is born, he acquires a vested interest in his father's substance, and on attaining years of discretion he is even, in certain contingencies, permitted by the letter of law to call for a partition of the family estate. As a fact, however, a division rarely takes place even at the death of the father, and the property constantly remains undivided for several generations, though every member of every generation has a legal right to an undivided share in it. The domain thus held in common is sometimes administered by an elected manager, but more generally, and in some provinces always, it is managed by the eldest agnate, by the eldest representative of the eldest line of the stock. Such an assemblage of joint proprietors, a body of kindred holding a domain in common, is the simplest form of an Indian Village Community, but the Community is more than a brotherhood of relatives and more than an association of partners. It is an organized society, and besides providing for the management of the common fund, it seldom fails to provide, by a complete staff of functionaries, for internal government, for police, for the administration of justice, and for the apportionment of taxes and public duties." (Page 215-217) (emphasis added)
35. Thus in brief, the concept of 'possession' in ancient laws is that Possession in Roman law recognised two degrees of possession, one is being "detentio" (or "possessio naturalise") of the object/thing; and the other is "possessio strictly" or "possessio civilise". Roman law appears to be mainly concerned with developing a theory to distinguish between "detention" and "possession" from each other. Physical control of an object by sale, a bailee or an agent was considered only as "detention" and all other kinds of physical control were treated as "possession".
36. 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)].
37. 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 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".
38. "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.
39. "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.
40. "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'.
41. 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 Adverse Possession has uninterruptedly continued.
42. "Holmes" opined that possession is a conception which is only less important than contract.
43. 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, says that 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.
44. 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 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.
45. Thus 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.
46. 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.
47. 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 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.
48. Then comes "incorporeal possession". It is commonly called possession of a right and is distinct from "corporeal possession" which is a possession of the thing.
49. 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."
(emphasis added)
50. The essentials of possession in the first instance includes 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 possession in order to show its existences must show "corpus possessionis" and an "animus possidendi".
51. Corpus possession is 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 depend 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.
52. The animus possidendi is the conscious intention of an individual to exclude others from the control of an object.
53. 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.
54. 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 all the contents to the transferee of the key.
55. 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 crystallize 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.
56. Ordinarily an owner of property is presumed to be in possession and such presumption is in his favour where there is nothing to be 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, Court shall not start with the presumption in his favour that 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.
57. In Gunga Gobind Mundul Vs. Collector of 24-pergunnahs 11 Moore's I.A., 345 it was observed by Privy Council that continuous possession for more than twelve years not only bars the remedy, but practically extinguishes title of 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.
58. In Gossain Das Chunder (supra), High Court held that 12 years continuous possession of land by wrong doer not only bars the remedy but also extinguishes title of rightful owner. It confers a good title upon the wrong doer.
59. In Basant Kumar Roy Vs. Secretary of State for India and 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. The law in respect to 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 in P. Lakshmi Reddy Vs. L.Lakshmi Reddy AIR 1957 SC 314 (para 4). Court further says that 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 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."
(emphasis added)
61. 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."
62. 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. . . . ."
63. In T. Anjanappa and others Vs. Somalingappa and another 2006 (7) SCC 570, pre-conditions for taking plea of adverse possession has been summarized 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."
(emphasis added)
64. In P.T. Municipal 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."
(emphasis added)
65. In the above case, Court discussed 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) (emphasis added)
66. In para 12 of the judgment, referring to its earlier decision in T. Anjanappa (supra), Court held that if defendants are not sure who is the true owner, question of their being in hostile possession and question of denying title of true owner do not arise. Court 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.
67. In Annakili Vs. A. Vedanayagam and others, AIR 2008 SC 346, Court pointed out that a claim of adverse possession has two elements (i) Possession of defendant becomes adverse to 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. 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."
(emphasis added)
68. In Vishwanath Bapurao Sabale Vs. Shalinibai Nagappa Sabale and others, JT 2009(5) SC 395, Court said:
". . . . 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."
69. In Chhote Khan & others Vs. Mal Khan & others AIR 1954 SC 575, Court observed that no question of adverse possession arises where the possession is held under an arrangement between the co-sharers.
70. 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."
71. Court 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."
72. 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."
73. In Annaliese Bapusaheb Patil Vs. Balwant (1995) 2 SCC 543, 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."
(emphasis added)
74. In Vidya Devi Vs. Prem Prakash (1995) 4 SCC 496, 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."
(emphasis added)
75. In Roop Singh Vs. Ram Singh (2000) 3 SCC 708 it was held that if the defendant got 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 real owner. Mere possession for a long time does not result in converting permissive possession into adverse possession. Court relied on its earlier decisions in Thakur Kishan Singh (supra).
76. In Darshan Singh Vs. Gujjar Singh (2002) 2 SCC 62 in para 7 and 9, 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."
(emphasis added)
77. 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."
(emphasis added)
78. It was also observed in para 21 that for the purpose of proving adverse possession/ouster, defendant must also prove "animus possidendi".
79. 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, 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."
(emphasis added)
80. However, Court further observed that if property, by virtue of some statutory provisions or otherwise, is in 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."
(emphasis added)
81. In L.N. Aswathama & another Vs. V.P. Prakash JT 2009 (9) 527, 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."
(emphasis added)
82. Further, in para 25 the Court said :
"25. When defendant claimed title and that was proved to be false or fabricated, then the burden is heavy upon him to prove actual, exclusive, open, uninterrupted possession for 12 years. In this case we have already held that he did not make out such possession for 12 years prior to the suit."
(emphasis added)
83. 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 requirement of adverse possession, the person claiming it must prove as to how and when 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).
84. In Parwatabai Vs. Sona Bai 1996 (10) SCC 266, it was stressed upon by 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. 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 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)].
85. If the chain of possession or continued possession ceased or interrupted, particularly at the time of filing of the suit, adverse possession extinguishes and earlier long possession, may be of more than the statutory period, would not give any advantage if the possession has been lost at the time of filing of suit.
86. Besides, alternative plea may be permissible, but mutually destructive pleas are not permissible. 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.
87. In Gautam Sarup Vs. Leela Jetly & others (2008) 7 SCC 85, Court said that a defendant is entitled to take an alternative plea but such alternative pleas, however, cannot be mutually destructive of each other.
88. The question of effect of gap in continuous possession came to be considered in Devi Singh Vs. Board of Revenue for Rajasthan and others, (1994) 1 SCC 215 and in para 5, Court held as under:
"The salutary principle of appreciation of evidence in possessory matters is that when a state of affairs is shown to have existed for a long course of time but a gap therein puts to doubt its continuity prudence requires to lean in favour of the continuity of things especially when some plausible explanation of the gap is forthcoming."
89. In Raja Rajgan Maharaja Jagatjit Singh Vs. Raja Partab Bahadur Singh AIR 1942 Privy Council 47 it was held that the defendant-appellant has to establish that the title to the land in suit held by owner under First Settlement of 1865 had extinguished under Section 28 of Limitation Act due to adverse possession of defendant-appellant or his predecessors for appropriate statutory period of limitation and completed prior to the possession taken under attachment by Tehsildar who thereafter held it for the true owner. It also says:
"It is well established that adverse possession against an existing title must be actual and cannot be constructive."
(emphasis added)
90. In Md. Mohammad Ali Vs. Jagdish Kalita (supra) also the change brought in Limitation Act 1963 under Article 65 qua earlier Limitation Act, 1908 was pointed out and Court observed:
"By reason of the Limitation Act, 1963 the legal position as was obtaining under the old Act underwent a change. In a suit governed by Article 65 of the 1963 Limitation Act, the plaintiff will succeed if he proves his title and it would no longer be necessary for him to prove, unlike in a suit governed by Articles 142 and 144 of the Limitation Act, 1908, that he was in possession within 12 years preceding the filing of the suit. On the contrary, it would be for the defendant so to prove if he wants to defeat the plaintiffs claim to establish his title by adverse possession."
(emphasis added)
91. 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.
92. 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 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 adverse possessor, like every other possessor, to be protected in his possession against all who cannot show a better title, but also, if 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 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.
93. In Maharaja Sir Kesho Prasad Singh Bahadur Vs. Bahuria Mt. Bhagjogna Kuer and others AIR 1937 Privy Council 69, Privy Council has held that mere receipt of rent by persons claiming adversely is not sufficient 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 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."
94. In Ramzan & Ors. Vs. Smt. Gafooran Ors. AIR 2008 All 37, this Court has held 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 true owner has acquiesced to it, adverse possessor cannot succeed to have it established that he has perfected his right by prescription. Where the adverse possessor was not sure as to who was true owner and question of his being in hostile possession, then the question of denying title of true owner does not arise. Relevant paras 27, 29 and 30 of the said judgment read as follows:
"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."
"30. Viewed as above, on the facts of the present case, the possession of the contesting defendants is not of the variety and degree which is required for adverse possession to materialise."
(emphasis added)
95. In Qadir Bux v. Ramchand AIR 1970 All 289, this Court has held that the term "dispossession" applies when a person comes in and drives out others from the possession. It implies ouster; a driven out of possession against the will of the person in actual possession. The term "discontinuance" implies a voluntary act and openness of possession followed by the actual possession of another. It implies that a person discontinuing as owner of land and left it to be dispossessed by any one who has not to come in. Relevant para 30 of the said judgment reads as follows:
"30. The main point for consideration is whether in such circumstances it can be said that the plaintiff had been dispossessed or had discontinued his possession within the meaning of Article 142 of the First Schedule to the Indian Limitation Act. The term "dispossession" applies when a person comes in and drives out others from the possession. It imports ouster: a driving out of possession against the will of the person in actual possession. This driving out cannot be said to have occurred when according to the case of the plaintiff the transfer of possession was voluntary, that is to say, not against the will of the person in possession but in accordance with his wishes and active consent. The term "discontinuance" implies a voluntary act and abandonment of possession followed by the actual possession of another. It implies that the person discontinuing has given up the land and left it to be possessed by anyone choosing to come in. There must be an intention to abandon title before there can be said to be a discontinuance in possession, but this cannot be assumed. It must be either admitted or proved. So strong in fact is the position of the rightful owner that even when he has been dispossessed by a trespasser and that trespasser abandons possession either voluntarily or by vis major for howsoever short a time before he has actually perfected his tittle by twelve years' adverse possession the possession of the true owner is deemed to have revived and he gets a fresh starting point of limitation - vide Gurbinder Singh v. Lal Singh, AIR 1965 SC 1553. Wrongful possession cannot be assumed against the true owner when according to the facts disclosed by him he himself had voluntarily handed over possession and was not deprived of it by the other side."
(emphasis added)
96. In Dharamarajan & Ors. Vs. Valliammal & Ors., 2008 (2) SCC 741, 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."
(emphasis added)
97. In A.S. Vidyasagar Vs. S. Karunanandam 1995 Supp (4) SCC 570, 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."
(emphasis added)
98. In Goswami Shri Mahalaxmi Vahuji Vs. Shah Ranchhoddas Kalidas, AIR 1970 SC 2025 the 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."
99. In the matter of plea of adverse possession, mutually inconsistent or mutually destructive pleas must not be taken in the plaint. Whenever plea of adverse possession is raised, it pre supposes that onwer is someone else and the person taking plea of adverse possession is not the actual owner but has perfected his title by prescription since real owner failed to initiate any proceeding for restoring the possession within the prescribed period under the statute.
100. 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."
101. 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."
(emphasis added)
102. In Karnataka Board of Wakf Vs. Government of India & others (2004) 10 SCC 779, Court held that whenever 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."
103. In Vishwanath Bapurao Sabale (supra), Court in 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."
104. What should have been pleaded and what a person claiming adverse possession has to show has been laid down categorically in Karnataka Board of Wakf (supra), as under:
"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 possdendi 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."
(emphasis added)
105. Earlier also, a three-Judges Bench of Apex Court in Parsinnin Vs. Sukhi (1993) 4 SCC 375 laid down following three requisites for satisfying 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."
(emphasis added)
106. The exposition of law, as discussed, therefore, makes the entire things very clear. To me it appears that DDC has not appreciated legal position with respect to adverse possession while recording his finding, without discussing and considering its necessary ingredients, pleadings and material. A total non-speaking observation and finding in respect of "adverse possession", which is a substantial issue cannot be accepted to be a basis for deciding a matter. Therefore, order of DDC, so far as it has recorded findings on the basis of "adverse possession", I find it difficult to subscribe and approve.
106. With regard to grove land, finding recorded by DDC is that it was not a part of compromise decree. In 1330 Fasli, husband of respondent no.2 was shown as co-grove holder. The same thing was recorded in 1328 Fasli also. No evidence was led by petitioner to show that grove was developed independently by predecessors of petitioners. Therefore, in respect of grove, respondent 2 has rights of co-tenure holder. On this aspect nothing otherwise has been shown by petitioners and, therefore, it warrants no interference.
107. In the present case, DDC while partly allowing revision has not given any reason whatsoever and simply has allowed change in the allotment of chak by interfering with the order of SOC. The observation on adverse possession also cannot be sustained
108. In view of above discussion, impugned order of DDC in so far as it has simply made alterations in Chak and has made observations with regard to adverse possession of respondents, cannot be sustained and to this extent writ petition has to be allowed. With respect to findings of grove land that it was not part of compromise decree, I find no reason to interfere.
109. In the result, writ petition is allowed to the extent as above and order of DDC dated 23.12.1977 to that extent is set aside the order of SOC dated 28.04.1975 shall stand restored.
Order Date :- 10.1.2018 IrfanUddin