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According to the High Court though the defendants were in possession under the mistaken assumption of title with themselves or with the Government, same cannot be a ground to hold that the possession is not a hostile possession from the standpoint of the real owner. It was further held that the real owner when dispossessed under Article 64 of the Indian Limitation Act, 1963 (in short the 'Limitation Act') has to seek possession within 12 years from the date of dispossession. It was therefore held that the findings of the court below i.e. first appellate Court that the defendants had failed to prove the plea of adverse possession is perverse and contrary to law and evidence on record. After holding so, it was further held that though the documents produced by the defendants do not fully establish the case of adverse possession to the full extent of 15' x 75', yet the stand of the defendants about actual physical possession read with the admission of the plaintiffs sufficiently establish that the defendants were in adverse possession of 15' x 75'. It was further held that even otherwise, the suit for possession to that extent was not filed within 12 years of dispossession and therefore grant of decree for declaration of the title and possession to that extent in favour of plaintiffs (appellants herein) is bad in law and liable to be set aside.

Learned counsel for the appellants submitted that the High Court's approach is clearly unsustainable in law. The concept of adverse possession has been clearly misunderstood by the High Court.

Learned counsel for the respondents on the other hand submitted that in view of the accepted position that the defendants were in possession for more than 12 years and that actual physical possession was with them the High Court cannot be faulted.

The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property.

Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to he adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful Owner's title e.g. trustees, guardians, bailiffs or agents. Such persons cannot set up adverse possession.

"Adverse possession" means a hostile possession which is expressly or impliedly in denial of title of the true owner. Under Article 65 of the Limitation Act, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. (See Annasaheb v. B.B. Patil (AIR 1995 SC 895 at

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 (that is, with the intention of excluding all persons from it, including the rightful owner), he is in adverse possession of it. Thus, if A is in possession of a field of B's, he is in adverse possession of it unless there is something to show that his possession is consistent with a recognition of B's title. (See Ward v. Carttar (1866) LR 1 Eq.29). Adverse possession is of two kinds, according as it was adverse from the beginning, or has become so subsequently. Thus, if a mere trespasser takes possession of A's property, and retains it against him, his possession is adverse ab initio. But if A grants a lease of land to B, or B obtains possession of the land as A's bailiff, or guardian, or trustee, his possession can only become adverse by some change in his position. Adverse possession not only entitled the adverse possessor, like every other possessor, to be protected in his possession against all who cannot show a better title, but also, if the adverse possessor remains in possession for a certain period of time produces the effect either of barring the right of the true owner, and thus converting the possessor into the owner, or of depriving the true owner of his right of action to recover his property and this although the true owner is ignorant of the adverse possessor being in occupation. (See Rains v. Buxion (1880 (14) Ch D 537).