Prapul Chandra Mukpalkar & Anr. vs P. Ramachandra Reddy & Anr. on 24 January, 1997
In summary, it may be stated that in a suit for possession based on title the plaintiff is called upon to prove title and nothing more than that
and it is for the defendant to set up the plea of adverse possession and to prove it that the plaintiff was not in possession of the property within twelve years next before the suit and that the defendant had established the title or acquired the title by adverse possession regarding which there must be specific plea that it was "nec vi, nee clam and nec precarium" viz., open, hostile and adverse. The meaning and legal implication in regard to adverse possession are settled and have been dealt with the aid of precedents by this Court in Yarlagadda Venkanna Choudary v. D. Lakshminarayana, 1996 (1) ALD 641, Ahalya Bai v. G. Shankaraiah, and M. Harichandra Prasad v. Chitturi Krishnamurthy, . The summary of law enunciated therein is that if the plaintiff is not found to be in possession at any time within twelve years prior to suit and where a suit is filed for possession based on title by virtue of Article 65 subject to the proof of adverse possession by the other side the suit will be barred by limitation. Mere possession for any length of time of a property belonging to one person by another person would not by itself constitute an adverse possession unless he demonstrates hostile possession by any means with the three fundamental ingredients stated above viz., "nec vi, nec clam and nec precarium". It is possible to prove that where the plaintiff never comes into possession at all in regard to an immovable property for over twelve years and the adversary establishes the right by prescription and not merely by adverse possession the title of the former will be extinguished under Section27 of the Limitation Act and to be read with Article 65 of the Limitation Act the suit will be barred by limitation. It is true that pleas like adverse possession need not be specifically pleaded but with the materials from the pleadings it should get liberal construction and the Court can mould relief taking judicial notice of subsequent events and drawing inferences without violating the fundamental principles of pleading, natural justice and justice in accordance with law. It is also to be noted that the mere possession of the property
belonging to the other for a period of twelve years not amounting to adverse possession will not become adverse possession unless it is hostile to the owner of the properly. In this case the starling point of adverse possession, if any, was 5-5-1980 being the date of the sale deed Ex.B27. The plea or the material that Seshagiri Rao got the possession of the suit plot or that Suryanarayana got it has been negatived for the reasons already afforded above. Even the positive act of the 1st defendant in paying the house tax or obtaining the permission and no objection certificate from the Society were all subsequent to Ex.B27. Even assuming that the period of limitation commences from the date of the sale deed in favour of Sreenivasa Rao under Ex.A1 dated 5-8-1971 the date of the suit being 22-7-1981 it was less than twelve years and even assuming that the owner having not at all come into possession after the sale deed and the adverse possession commencing from that date alleast by the Society for any reason, the suit filed on 22-7-1981 was never barred by limitation under Article 65 of the Limitation Act. There has been a failure of the judicial concern by the learned District Judge in dealing with the question of limitation without reference to the proper law or the facts of the case and this Court is compelled to deprecate it in a matter where the rights of Ihe parties were involved in regard to the immovable properly over which they were litigating with all the bow fide grounds. Even assuming that by the time Ex.A5 notice was issued by the plaintiffs the construction had already been commenced, possibly that being the positive, hostile and open adverse act on the part of the 1st defendant in regard to the suit plot as against the plaintiffs cannot fix the period of limitation under Article 65 of the Limitation Act. The learned District Judge has not even examined these implications of law and facts operating in this case and has led himself into an erroneous finding in regard to the same. Therefore, the learned District Judge has dealt with the matter with judicial impropriety.