IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED...

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 31ST DAY OF OCTOBER, 2015

PRESENT:

THE HON'BLE MR. JUSTICE N.KUMAR

AND

THE HON'BLE MR. JUSTICE B.MANOHAR

R.F.A.NO.847/2011 C/W R.F.A.NOs.588/2011, 589/2011 & 590/2011

IN R.F.A NO.847/2011:

BETWEEN

Mr.Lourd,

(Since Deceased now represented by his Legal

representatives)

a) Mrs. Theresa,

Aged 64 years,

Wife of Late Lourd,

Presently residing at,

Portion of No.17,

Yellamma Koil Street,

Ulsoor,

Bangalore – 560 008.

b) Mr. L.Robert,

Aged 43 years,

Son of Late Lourd,


Portion of No.17,


Ulsoor,


2

c) Mrs. Louisa,

Aged about 40 years,

Wife of Prakash,


Portion of No.17,


Ulsoor,


d) Mrs. Hellen,

Aged 35 years,

Wife of Reuben,

Presently residing at

Portion of No.17,


Ulsoor,


e) Mr. John,

Aged 32 years,

Son of Late Lourd,


Portion of No.17,


Ulsoor,

Bangalore – 560 008. ... Appellants

(By Sri.Arjun Rego for Rego & Rego, Advs.)

3

AND

1. Mr.K.Jyothi,

(Since Deceased now represented

by his legal representatives)

a) Smt. Kokila,


Wife of Late Jyothi,


Portion of No.17,


Ulsoor,


b) Mr.K.Kumareshan,


Son of Late E.Krishnaiah Setty,


Portion of No.17,


Ulsoor,

Bangalore – 560 008. …Respondents

(By Sri. A.Keshava Bhat, Adv.,)

This RFA is filed Under Section 96 of CPC against

the Judgment and Decree dated:19.02.2011 passed in

O.S.15397/2004 on the file of the XXVIII Additional City

Civil Judge, Mayo Hall, Bangalore, decreeing the suit for

the declaration.

4

IN R.F.A NO.588/2011

BETWEEN

Sri. Mani,


S/o Smt. Rajammal,

R/at. Portion of No.17,


Ulsoor,

Bangalore – 560 008. ... Appellant

(By Sri.Muniswamy Gowda for Pramila Associates,

Advs.,)

AND

1. Mr.K.Jyothi,


by his legal representatives )

a) Smt. Kokila,




Portion of No.17,


Ulsoor,


(Amendment Carried out as per

Order dated 02.02.2015)

2. Sri.K.Kumareshan,


5



Portion of No.17,


Ulsoor,


(By Sri. A.Keshava Bhat, Adv.)

This RFA is filed Under Section 96, R/W 0rder 41,

Rule-1 of CPC, against the Judgment and Decree dated:

19.02.2011 passed in O.S.No.15396/2004 on the file of

the XXVIII Additional City Civil Judge, Mayo Hall,

Bangalore, decreeing the suit for declaration and

eviction.

IN R.F.A NO.589/2011

BETWEEN

Sri. Shyam @ Samson,


S/o Late. Mr.Sebastine,

R/at.Portion of No.17,


Ulsoor,


(By Sri. Muniswamy Gowda for

Pramila Associates, Advs.)

6

AND

1. Mr.K.Jyothi,



a) Smt. Kokila,




Portion of No.17,


Ulsoor,








Portion of No.17,


Ulsoor,



This RFA is filed Under Section 96 R/W 0rder 41,





eviction.

7

IN R.F.A NO.590/2011

BETWEEN

Sri. Raja,


S/o Late.Mr. Ponnuswamy,

R/at Portion of No.17,


Ulsoor,


(By Sri, Muniswamy Gowda for

Pramila Associates, Advs.)

AND

1. Mr.K.Jyothi,



a) Smt. Kokila,




Portion of No.17,

Yellamma Koil Street, Ulsoor,







8


Portion of No.17,


Ulsoor,



This RFA is filed Under Section 96 R/W 0rder 41,





eviction. These appeals coming on for Admission, this day,

N.Kumar, J., delivered the following:

J U D G M E N T

These four appeals are preferred by the defendants

in the four suits challenging the judgment and decree

passed separately in the respective cases wherein a

decree for possession is granted. However, evidence

recorded in O.S.No.15398/2004 is read as evidence in

other three suits though separate judgments are written

in all the four suits. Therefore they are taken up for

9

consideration together and all the four appeals are

disposed of by this common judgment.

2. Sri.K.Jyothi and Sri.K.Kumareshan are the

plaintiffs in all the four suits. In O.S.No.15396/04 one

Mani is the tenant; in O.S.No.15397/04 one Lourd is

the tenant; in O.S.No.15398/04 Raja is the tenant and

in O.S.No.15399/04 one Shyam @ Samson is the

tenant.

3. The parties are referred to as they are

referred to in the original suits.

4. The subject matter of these four suits is a

portion of property bearing registration No.17,

Yellamma Koil Street, Ulsoor, Bengaluru-8 measuring

East to West approximately 93 feet and North to South

22 feet which is more particularly described in the

schedule to each plaint and referred to as ‘A’ schedule

property. In other words, A schedule property is

10

common in all the four suits. The property which is in

occupation of each of the tenants are more particularly

described in each plaint as ‘B’ schedule properties.

5. The case of the plaintiffs’ is that plaint ‘A’

schedule property originally belong to Sri. Muniswamy

Chettiar who after purchase of the property had put up

construction. The said Muniswamy Chettiar was having

only one son by name Sundresh Chettiar who got

married to Amruthammal. They had one daughter by

name Sarojammal. Said Sarojammal was got married to

Krishnaiah Chettiar. Plaintiffs are the children of said

Sarojammal and Krishnaiah Chettiar. After the death of

Sarojammal and Krishnaiah Chettiar, the plaintiffs have

succeeded to their estate as they died intestate. The

plaintiffs are residing in a portion of the ‘A’ Schedule

property for the last more than 30 years. Their grand

father Sundresh Chettiar in order to go back to his

native place temporarily handed over A schedule

11

property to the custody of one Rajammal wife of Gopal

as a care taker on the condition that whenever

Sundresh Chettiar returned from his native place, he

shall take over the possession of the suit schedule

property from the custody of Rajammal and then he

started living in it. They submit that after the death of

their parents, to their shock and surprise they came to

know that the said Rajammal who used to conduct free

tuitions for the school children in the schedule property,

with an ulterior motive illegally started to induct the

defendants in the said four suits as tenants in portion

of A schedule property. The said portions in which the

defendants are inducted are B schedule properties.

Because of this conspiracy and illegal acts of Rajammal,

the defendants managed to live in B schedule property.

The defendants even during the life time of plaintiffs’

grand father and grand mother viz., Late Sundresh

Chettiar and Sarojammal, never used to pay any rents

12

in spite of demand made by them. Thereafter the

plaintiffs lodged a police complaint in the year 1970.

The defendants along with other illegal occupants of the

suit property not only threatened the plaintiffs with dire

consequences, but also used Rowdies. The police

intervened and even obtained an undertaking from the

defendants and other illegal occupants that they shall

not indulge in such illegal activities. Even after the

death of parents of the plaintiffs, the defendants never

bothered to pay rents or hand over vacant possession of

the premises even though the plaintiffs on several

occasions demanded to do so. Plaintiffs father expired

during 1988 and mother expired during 2003.

Defendants have no right to continue to stay in the B

schedule property. Defendants are nothing but

trespassers in the suit B schedule properties.

Defendants cannot enjoy the property without paying a

single pie. The efforts of the plaintiffs and their parents

13

to evict the respondents went in vain. Therefore the

plaintiffs have now come forward before this Court to

evict the defendants from B schedule property. They got

a legal notice issued to the defendants calling upon

them to hand over B schedule property. On receipt of

the same they have sent an untenable reply refusing to

vacate. Therefore plaintiffs were constrained to file a

suit for a direction to the defendants to vacate, quit and

hand over vacant possession to the plaintiffs for bona-

fide occupation of the plaintiffs and for a declaration

that the plaintiffs are the owners of A and B schedule

properties and for other consequential reliefs.

6. After service of summons in all the four

suits, defendants entered appearance, engaged a

counsel and filed written statements. The said written

statement are almost identical. They contend that the

plaintiffs have filed the suit by suppressing the facts by

claiming title and possession in respect of suit schedule

14

property. They denied the allegation that the entire

property bearing No.17, Yellamma Koil Street, Ulsoor,

Bengaluru-8 was purchased by the plaintiffs’ great

grand father - Muniswamy Chettiar and he had put up

construction over the said property. They also denied

the allegation that Muniswamy Chettiar had only one

son by name Sundresh Chettiar and that he was

married to Smt.Amruthammal. They also denied the

allegation that they had a daughter by name

Sarojammal who was married to Krishnaiah Chettiar.

They also denied that plaintiffs were children of said

Sarojammal and Krishnaiah Chettiar. They asserted

that no person by the name Muniswamy Chettiar or

Sundresh Chettiar, Amruthammal or Krishnaiah

Chettiar have been owners in respect of ‘A’ schedule

property and at no point of time have they been living in

or been in possession of the ‘A’ schedule property. The

allegation in the plaint that Sundresh Chettiar wanted

15

to go back to his native place and temporarily he

handed over the custody of the schedule property to one

Smt.Rajamma wife of Shri Gopal as a care taker, and

whenever Sundresh Chettiar returned from the native

place, he shall take over the property was denied as

false and baseless. They contended that at no point of

time Sundresh Chettiar lived in Schedule ‘A’ property.

They denied that they were tenants under the

predecessor in title to the plaintiffs. They asserted that

at no point of time the defendants were the tenants in

respect of B schedule property. The defendants were

not paying the rents even during the life time of

Sundresh Chettiar and Sarojammal. The defendants

have been in uninterrupted physical possession and

enjoyment of the schedule property since more than 40

years. The defendants had not paid rents even to the

parents of the plaintiffs. There is no relationship of land

lord and tenant between the plaintiffs and defendants.

16

Defendants have been in uninterrupted physical

possession and enjoyment of the schedule property

since more than 40 years and accordingly, defendants

have perfected their title by way of adverse possession.

Since the defendants have perfected their title by way of

adverse possession, the plaintiffs have no right to seek

this portion of the suit schedule property from the

schedule premises. Plaintiffs are not the owners of the

schedule property. The plaint does not disclose the

property under the occupation of the defendants. When

the plaintiffs have not succeeded in the suit property

requisition of the plaintiffs seeking for the relief of

declaration that they are legal owners of the schedule A

property are unfounded and baseless. Plaintiffs have

not paid proper court fee. The defendants have not

received the legal notice as alleged in the plaint. There

is no merit in the suit.

17

7. This written statement was filed on

19.6.2004. On the basis of the aforesaid pleadings the

trial court framed issues on 28.2.2005. After framing of

the issues with the change of the counsel, the written

statement was amended. The plea taken in the

amended written statement is that one Lingappa

Kalappa and Palani were inducted through one

Smt.Rajammal who was in possession of the schedule

property, though having no right, title or interest over

the schedule property. In turn, the defendants were

inducted into possession of the schedule ‘B’ property in

the year 1956 by the said Rajammal and the defendants

continued in possession and enjoyment of the suit

schedule property. Till today, the defendants and his

family members are in possession and enjoyment of the

suit schedule B property. The defendants nor his family

members have paid any amount or rent to anybody

whomsoever while they were enjoying the possession of

18

the schedule property to the knowledge of the plaintiffs,

openly, continuously and adversely from the year 1956.

The defendants had been enjoying B schedule property

openly, adversely and continuously for more than 60

years without any interference from any person and

thereby perfected their title by adverse possession and

being adverse and hostile to the real owner. Inasmuch

as possession of defendants against plaintiffs is from

the day when the defendants were inducted into

schedule B property by Smt.Rajammal, who had no title

as on the date of induction and possession from 1956 is

that of adverse to the true owner i.e., Late Muniswamy

Chettiar and to the whole world including the plaintiffs.

The possession of the defendants was adverse from the

beginning till today as they have not taken the suit

schedule property of the plaintiffs or his parents and

they have not been inducted by the plaintiffs as tenants

and the defendants have always admitted the superior

19

title of Late Muniswamy Chettiar. The defendants have

been in possession adversely against the true owner and

thereby acquired rights against the true owner and the

defendants have kept the plaintiff out of possession over

the statutory period. The plaintiffs were aware that the

defendants was/is in possession of the schedule B

property. Thus the possession of the defendants is

adverse to the plaintiffs as the defendants have been in

openly, adversely and continuously enjoying the

schedule properties to the knowledge of the plaintiffs.

Therefore they sought for dismissal of the suit.

8. This amendment was allowed on 28.6.2010.

Thereafter an additional issue regarding adverse

possession has been framed. Thus in all the four cases

the following issues were framed.

Issues in O.S.No.15396/2004:

1. Whether the plaintiffs prove that they have succeeded to the schedule properties?

20

2. Whether the plaintiffs prove that

defendant trespassed into the schedule property and is illegally occupying the schedule B property?

3. Whether the defendant proves that he

has perfected his title over the suit schedule

property by way of adverse possession? 4. Whether the defendant proves that the

Court fee paid by the plaintiff is insufficient? 5. Whether plaintiff is entitled for

possession of schedule B property as sought for?

6. To what order or decree?


1. Whether the plaintiffs prove that they are the absolute owners of suit schedule A property?

2. Whether the plaintiffs prove that defendant trespassed into the schedule B property and is in illegal occupation of the same?

3. Whether the Court fee paid by the

plaintiff is insufficient?

4. Whether the plaintiffs are entitled for possession of schedule B property?

21

5. What order or decree?

Additional .Issue No.1:-

Whether the defendant proves that he perfected title to the suit properties by

adverse possession? Issues in O.S.No.15398/2004:

1. Whether the plaintiffs prove that they have

succeeded to the schedule properties?

2. Whether the plaintiffs prove that defendant

trespassed into the schedule property and is illegally occupying the schedule B property?

3. Whether the defendant proves that he has perfected his title over the suit schedule property by way of adverse possession?

4. Whether the defendant proves that the

Court fee paid by the plaintiff is insufficient?

5. Whether plaintiff is entitled for possession

of schedule B property as sought for?

6. To what order or decree?

22

Additional.Issue No.1:-

Whether the plaintiffs prove that they are the absolute owners of the suit perfected title to the suit properties on the date of suit?


1. Whether plaintiff proves that schedule ‘A’

property was purchased by plaintiffs grandfather Sri.Muniswamy Chettiyar?

2. Whether plaintiffs proves that the

plaintiffs succeeded to Sch. ‘A’ property after the death of their mother Smt.Sarojammal?

3. Whether plaintiffs prove that defendant

trespassed into Sch. ‘B’ property and is

illegally occupying the same?

4. Whether defendant proves that he has perfected his title by way of adverse possession in respect of Sch. ‘B’ property?

5. Whether the Court fee paid is insufficient?

6. Whether the plaintiffs are entitled for declaration as sought for?

7. Whether the plaintiffs are entitled for

possession of Sch. ‘B’ property as sought for?

8. What order or decree?

23

9. The plaintiff in order to substantiate the

claim examined the second plaintiff K.Kumareshan as

PW.1 and they have produced 30 documents which are

marked as Exs.P.1 to P.30. The defendants were

examined as DW.1 and they have produced 70

documents which are marked as Exs.D.1 to D.70. As

stated earlier, common evidence was recorded in

O.S.No.15398/04 which was read as evidence in all the

four suits.

10. The trial court on appreciation of the

aforesaid oral and documentary evidence on record held

that though initially the defendants denied that

Muniswamy Chettiar was the owner of the schedule

properties subsequently in view of their admission that

he was the owner of the property, the title of the

schedule property in the name of Muniswamy Chettiar

is established. Thereafter it held that Muniswamy

24

Chettiar died leaving behind his son Sundresh Chettiar

who died leaving behind his daughter Sarojammal and

on the death of Sarojammal and her husband

Krishnaiah Chettiar, plaintiffs filed P & SC

No.15010/2005 for Letters of Administration in respect

of the schedule property. In the said proceedings,

evidence was recorded. In fact these defendants

impleaded themselves as parties in the said

proceedings. The impleading application came to be

rejected on the ground that as in the said P and SC case

the court is not deciding the ownership of the schedule

property, they are not necessary parties. However after

appreciating the evidence on record, it held that

plaintiffs are children of Sarojammal and Krishnaiah

Chettiar. Sarojammal was daughter of Sundresh

Chettiar and Sundresh Chettiar was the son of

Muniswamy Chettiar. The said order has become final

and therefore, when once defendants admit that the

25

schedule property belongs to Muniswamy Chettiar the

plaintiffs being great grand children of Muniswamy

Chettiar are entitled to the said property. Thereafter it

proceeded to look into the evidence on record in respect

of adverse possession and has recorded a categorical

finding of open and continuous possession of the

property by the defendants would not amount to

adverse possession as the evidence on record and

pleadings in the written statement clearly demonstrate

that defendants were inducted into the property

through one Rajammal, their possession was not hostile

to the title of the true owner and merely because they

are in possession from 1970 onwards by itself is not

sufficient to hold that they perfected their title by

adverse possession. When title of the property of

Muniswamy Chettiar is admitted coupled with the fact

that defendants have produced Exs.D.1 to D.30 -

records from Survey Department and tax paid receipts

26

by Muniswamy Chettiar etc. Therefore it did not result

in possession of the plaintiffs being adverse. Therefore

as the suit is for recovery of possession based on title,

title is admitted and proved, the defendants have failed

to prove that they have perfected title to the suit

property by way of adverse possession, their possession

amounts to trespasser without any right, title or interest

over the same and plaintiffs being the owners of the

suit property are entitled to recover possession of the

same from the defendants. Aggrieved by the judgment

and decree of the court below, all the four defendants

filed these four appeals.

11. Learned counsel for the defendants

(appellants herein) assailing the impugned judgment

and decree contended that the suit is one for

declaration, title and possession. Though an issue

regarding declaration was framed but the court below

has not given any finding on this issue. It is contended

27

that in a case where there is no issue regarding

declaration of title and on the basis of the said evidence

finding is recorded on the other three issues, therefore

impugned judgment and decree is vitiated.

12. Secondly they contended that plaintiffs have

not proved that they are the owners of the suit property.

They have also not proved the relationship of landlord

and tenant with the defendants. In spite of the same,

the court committed an error in decreeing the suit of the

plaintiffs. Further it was contended that when

admittedly, the defendants are in possession of the

property from the year 1948 and from 1970 they are not

paying rents to any one and the police complaint was

lodged at that point of time as suit was not filed for

recovery immediately thereafter, they perfected their

title by way of adverse possession. They also contended

that the suit is barred by law of limitation as in 1970

when police complaints were lodged at least within 12

28

years therefrom the suit ought to have been filed. It was

also contended that the case of the plaintiffs is to be

believed, the defendants are tenants and tenants have

not paid rents by virtue of Article 66, the suit ought to

have been filed within 12 years there from. Therefore

seen from any angle the suit is barred by limitation.

The trial court has not appreciated these findings and

committed an error.

13. Per contra, learned counsel for the

respondents – plaintiffs submit that the admission in

the pleadings and evidence on record coupled with the

registered sale deed clearly establishes that Muniswamy

Chettiar was the original owner of the property. The

order passed by the District Court in P and SC show the

relationship between the plaintiffs and Muniswamy

Chettiar and therefore when once the title of the

Muniswamy Chettiar is admitted, the plaintiffs being

the great grand children of Muniswamy Chettiar are the

29

owners of the schedule properties. The specific plea

taken in the written statement is that the defendants

were inducted into the schedule B property by one

Smt.Rajammal. Therefore it is a case of permissive

possession. Defendants have never asserted the title of

Rajammal. Defendants do not admit plaintiffs’ title over

the property. In the written statement filed in 2004,

they did not admit title of Muniswamy Chettiar either.

It is only by way of amendment to the written statement

title of Muniswamy Chettiar was admitted. Therefore

plea of adverse possession is not established because

there is no plea of forcible possession being taken by the

defendants with regard to inception and continuous

possession for a statutory period with hostility with the

knowledge of the owner. Therefore the trial court held

that the case of adverse possession set up by

defendants were not established.

30

14. Insofar as limitation is concerned, it is a suit

for possession based on title. Therefore it is only when

the title of the plaintiff is specifically denied and when

the possession of the defendants become adverse to the

plaintiffs, the suit is required to be filed within 12 years.

Whereas in the instant case, the defendants even to this

day have not denied the title in the case of the plaintiff.

Hence, the question of limitation does not arise.

15. In the light of the aforesaid facts and the

rival contentions, the points that arise for our

consideration in these appeals are as under:

(1) Whether the finding of the trial court

that the plaintiffs have established the title

calls for interference?

(2) Whether the finding of the trial court

that the defendant has not proved adverse

possession perfecting the title by way of

adverse possession is erroneous?

(3) Whether the suit is barred by law of

limitation as contended by the defendants?

31

16. Point No.1:

The plaintiffs in order to establish the title relied

on Ex.P.25 which is certified copy of a registered sale

deed dated 13.2.1922 under which Late Muniswamy

Chettiar purchased the schedule A property. The

defendants have produced Ex.D.2 the records

maintained by the Survey Department which shows that

A schedule property stands in the name of Muniswamy

Chettiar. Similarly, Ex.D.3 is yet another document

produced by the defendants issued by the Survey

Department. It shows Muniswamy Chettiar is the

owner of the property. Ex.D.5 is the tax paid receipt

showing that the tax was received on behalf of

Muniswamy Chettiar in respect of A schedule property.

Ex.D.6 is a notice issued by the Muniswamy Chettiar by

the land records calling upon him to pay the requisite

fee and take Sanad. Ex.D.7 is revenue extract issued by

Bengaluru Mahanagara Palike which shows that the

32

said property stands in the name of Muniswamy

Chettiar. Ex.D.8 is also to that extent. Ex.D.9 is a

document issued by the office of the Assistant Revenue

Officer to Muniswamy Chettiar claiming for recovery of

tax in respect of A schedule property. Exs.D.10 to D.31

are tax paid receipts on behalf of Muniswamy Chettiar.

From these unimpeachable records, it is clearly

established that the A schedule property belongs to

Muniswamy Chettiar. The plaintiffs’ after the death of

their parents approached Bengaluru City Civil Court

under Section 278 of the Indian Succession Act praying

for Letters Of Administration in respect of suit schedule

property. In the said proceedings they produced ration

card, Voter Identity card, College Identity card,

Domestic Gas Consumer Card, Post office Savings

Account, Employment card, death certificate of their

mother Sarojammal and Krishnaiah Chettiar, certified

copy of sale deed in respect of A schedule property,

33

Encumbrance certificate and endorsements issued by

Bengaluru Mahanagara Palike and also marriage

invitation card of the first plaintiff. On consideration of

the aforesaid material, the IV Additional City Civil

Judge, Mayo Hall Unit in S and PC No.15010/05 by

order dated 25.9.2006 allowed the petition, granted the

Letters Of Administration as prayed for jointly in the

name of the petitioners and recitals of the said

document clearly establishes that Muniswamy Chettiar

was having only one son i.e., Sundresh Chettiar. He

was married to Amruthammal. They had one daughter

by name Sarojammal who was married to Krishnaiah

Chettiar and after the death of Sarojammal and

Krishnaiah Chettiar, the plaintiffs who are their sons

have succeeded to the estate. Thus these documents

clearly establish that the A schedule property was

acquired by Muniswamy Chettiar in the year 1922

under a registered sale deed and plaintiffs are grand

34

children of Muniswamy Chettiar and admittedly, the

plaintiffs are in possession of a portion of the ‘A’ suit

schedule property. B schedule property in all the four

suits are different portions of ‘A’ schedule property

which is in occupation of these defendants. Over and

above that by amendment in the year 2008, the

defendants admit that the property belongs to

Muniswamy Chettiar. Therefore the finding recorded by

the trial court that the plaintiffs have established their

title to the property is based on legal evidence and

cannot be found fault with and therefore we affirm the

said finding of the court below in so far as title of the

property is concerned.

17. Point No.2:

In order to establish a plea of adverse possession

what law requires is that the person who is claiming

adverse possession should show,

35

(a) on what date he came into possession?

(b) what was the nature of his possession?

(c) whether the factum of possession was not

informed to the other party i.e., is the

plaintiffs?

(d) how long this possession is continued?

(e) whether this possession was open,

continuous and undisturbed;

18. This court had an occasion to consider these

aspects in the case of Janatadal Party, Bangalore VS.

the Indian National Congress and others reported in ILR

2014 KAR 4726 where after reviewing the entire case

law on the point held as under:

“ADVERSE POSSESSION

116. 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

36

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 color of title. Simple

application of Limitation shall not be enough by

itself for the success of an adverse possession

claim. The operation of the statute is merely

negative, it extinguished the right and title of

the dispossessed owner and leaves the

occupant with a title gained by the fact of

possession and resting on the infirmity of the

right of the others to eject him.

117. The Indian Law of Limitation as

contained in the Limitation Act, 1963 contains

37

a specific provision in Section 27 of the Act,

which deals with extinguishment of right to

property. It reads as under:

“27. Extinguishment of right to

property.- At the determination of the

period hereby limited to any person for

instituting a suit for possession of any

property, his right to such property shall be

extinguished.”

The general principle is that limitation bars

only the remedy and does not extinguish the

right itself. This Section is an exception to this

general principle so far as suits for possession

of property are concerned. It provides that the

bar of the remedy shall operate to extinguish

the right also. The law of limitation as regards

possession and dispossession of property has

always been a law of prescription. The words

‘at the determination of the period hereby

limited to any person for instituting a suit for

possession’ imply that limitation has began to

run against the person for instituting the suit

referred to and has expired. It follows that

where a person could not or need not have

38

sued for possession, there is no question of any

determination of the period limited to him for

instituting a suit for possession and

consequently, no question of the applicability

this Section. The full period prescribed for a

suit for possession must have expired,

otherwise, the title of the true owner is not

extinguished in favour of the wrong doer.

Thus, an owner of property does not lose his

right to it merely because he happens not to be

in possession of it for twelve years. His right is

extinguished only when somebody else is in

possession against whom a suit for possession

could have been filed but had not been filed

within the time prescribed. The institution of

the suit itself within the period of limitation is

sufficient to bar the operation of this Section

though the decree for possession is passed

beyond the period. This Section, in terms,

applies only where suits for possession of

property become barred by limitation. Section

27 of the Limitation Act does not change the

legal position of the person claiming title. The

suit for possession referred to in the Section is

39

a suit in respect of which the period of

limitation is prescribed by the schedule to the

Limitation Act. This is clear from the words

‘period hereby limited’ in the Section. A suit for

possession by the owner of the property will

not be barred if the defendant’s possession is

not adverse to him. The Section does not

provide as to in whom the title that gets

extinguished gets vest. Where a person who

could have sued for possession of property

allows the period of limitation prescribed for

the suit to expire, his title is, under this Section,

destroyed. The extinguishment of the title of

the rightful owner will operate to give a good

title to the wrongdoer because title to

immovable property cannot remain in vaccum.

The acquisition of the title by the wrongdoer is

thus the corresponding effect of the right to the

property being extinguished. If one does not

take place, the other does not. The right that is

extinguished cannot also be anything more

than what the rightful owner had in the

property.

40

118. Possession is one of the few

phenomena considered to be the most complex

in the legal labyrinth and it becomes all the

more abstruse when the term is prefixed by the

epithet ‘adverse’ and no body finds it simple to

understand which is by nature adverse. The

most outstanding feature to the complexity of

the concept is that the claimant placing his foot

on the plea of adverse possession claims his

own title to a property to which the title of

another is not disputed. The concept of adverse

possession involves three elements, namely, (1)

property, the subject of adverse possession; (2)

possession of that property by a person having

no right to its possession and (3) the

possession being adverse to the true owner.

Possession to be adverse must be possession

by a person who does not acknowledge the

other's rights but denies them. 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. Where

possession could be referred to a lawful title, it

41

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. 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. It is well recognized

proposition in law that mere possession

however long does not necessarily mean that it

is adverse to the true owner. The concept of

adverse possession contemplates a hostile

possession i.e. a possession which is expressly

42

or impliedly in denial of the title of the true

owner. In order to constitute adverse

possession the possession proved must be

adequate in continuity, in publicity and in

extent so as to show that it is adverse to the

true owner. The classical requirements of

acquisition of title by adverse 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. 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,

43

hostile and continued over the statutory period.

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.

PLEA OF ADVERSE POSSESSION

119. In a claim of adverse possession,

the title is not disputed; what is alleged is only

its extinction. In the matter of adverse

possession, the courts have to find out the plea

taken by the party in the pleadings. A plea of

adverse possession being based on facts which

have to be raised to the effect, is not

necessarily a legal plea. The plea of adverse

possession raises a mixed question of law and

fact. Where a person wants to base his title on

it, he should specifically set up the plea. Unless

the plea is raised, it cannot be entertained. A

plea must be raised and it must be shown

when possession became adverse, so that the

44

starting point of limitation against the party

affected can be found. The prayer clause is not

a substitute for a plea. A person acquires title

by way of adverse possession when he is in

continuous, uninterrupted, hostile possession

over a period of 12 years. In order to calculate

12 years period there should be a starting

point. The date of commencement of adverse

possession is very crucial for calculating the

period of 12 years. Therefore, the law

mandates that the person who seeks a

declaration that he has perfected his title by

way of adverse possession should specifically

plead the date from which his possession

becomes adverse to that of the opposite party

against whom the said plea is set up. It is from

that date if the party proves continuous,

uninterrupted possession for a period of 12

years, then the right of the opposite party to the

property stands extinguished and the party

who has set up the plea would acquire title by

way of adverse possession. Therefore, in the

absence of crucial pleadings, which constitute

adverse possession, the party cannot claim

45

that he has perfected their title by adverse

possession. In a proper case, the court may

have to construe the entire pleadings so as to

come to a conclusion as to whether the proper

plea of adverse possession has been raised in

the pleadings or not which can also be

gathered from the cumulative effect of the

averments made therein. 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, continuous and undisturbed.

A person pleading adverse possession

has no equities in his favour. Because, adverse

possession is commenced in wrong and is

aimed against right. Since he is trying to defeat

the rights of the true owner, it is for him to

clearly plead and establish all facts necessary

to establish his adverse possession. Once a

46

suit for recovery of possession is instituted

against a defendant in adverse possession his

adverse possession does not continue

thereafter. In other words, the running of time

for acquiring title by adverse possession gets

arrested.

EVIDENCE OF ADVERSE POSSESSION

120. 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. 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. 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

47

and circumstances of each case. Under Article

65 of the Limitation Act, burden is on the

defendants to prove affirmatively.”

19. Therefore it is clear that in the matter of

adverse possession, the courts have to find out plea

taken by the party in the pleadings. The plea of adverse

possession raises mixed question of law and facts.

Where a person wants to base his title on it he has to

specifically set up his plea. 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. 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. 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.

48

Where possession could be referred to a lawful title it

would not be considered to be adverse.

20. Before a plea of adverse possession is set up

against the plaintiff by the defendant, the defendant

must accept the title of the plaintiff. 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. Therefore in this case

initially defendants did not admit even the title of

Muniswamy Chettiar Let alone the title of the plaintiffs,

who had brought the suit for possession. Even by way

of amendment which was made in the year 2008 all that

has been said is “we are admitting the title of

Muniswamy Chettiar”. They have not set up any

adverse possession against Muniswamy Chettiar.

Probably on the date they were inducted he was not

alive. Therefore now that title is not in dispute or

proved, merely because the person is continuous in

49

possession for any length of time would not acquire title

by possession. More over a person pleading adverse

possession has no equity in his favour. Because

adverse possession is commenced in wrong and is

aimed against right. Since he is trying to defeat the

rights of the true owner, it is for him to clearly plead

and establish all facts necessary to establish his adverse

possession. Therefore in the instant case having regard

to pleadings, evidence on record and the admissions,

the trial court on a proper appreciation has rightly held

that, as defendants did not at the inception entered the

property with hostility they cannot claim adverse

possession. In fact, learned counsel for the appellants

relied on the judgment of the Apex Court in the case of

Tej Narain and another Vs. Shanti Swaroop Bohre

and another reported in CDJ 2004 SC 1098. In the

said case after a partition had taken place between

brothers whether the persons who brought a share took

50

forcible possession of the same in the year 1928 suit for

possession came to be filed in 1955 alleging that forcible

possession was taken on 7.7.1949. Once it was

established that in 1928 forcible possession was taken

suit filed for possession was held to be barred by time

and therefore taking possession forcibly is the starting

point of adverse possession. If the possession is not

taken illegally or forcibly, plea of adverse possession is

not available to the defendants. That is precisely what

the trial court has held while recording the finding that

defendant has failed to prove the adverse possession.

21. Point No.3: It was contended that these

defendants occupied their respective ‘B’ schedule

properties in the year 1958. Though they were inducted

in possession of ‘B’ schedule properties by the deceased

Rajammal, from 1970 onwards, they have not paid any

rent even to Rajammal. Their further case is that after

1970, the plaintiffs gave police complaint demanding for

51

rent and therefore, it amounts to denial of title of the

plaintiffs to the schedule properties. In the cross-

examination, P.W.1 has categorically admitted that the

defendants forcibly entered the properties. Therefore,

the suit for possession based on title should have been

filed within 12 years from 1970. Admittedly, the suit has

been filed in the year 2004 which is clearly barred by

time and hit by Article 65 of the Limitation Act.

22. Article 65 of the Limitation Act reads as

under:

65. For possession Twelve When the of immovable property years possession of or any interest the defendant therein based on title become adverse to the plaintiff

Explanation.- For the

purposes of this article –

(a) Where the suit is by a remainderman, a reversioner (other than a landlord) or a devisee,

the possession of the defendant shall be

52

deemed to become adverse only when the

estate of the remainderman, reversioner or devisee, as the case may be, falls into possession;

(b) Where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the

possession of the defendant shall be deemed to become adverse only when the female dies;

(c) Where the suit is by a purchaser at a sale in execution of a decree when the judgment- debtor was out of possession at the date of

the sale, the purchaser shall be deemed to be a representative of the judgment-debtor who was out of possession

53

23. This Article has been the subject matter of

interpretation by the Apex Court, in several

decisions.

24. The Supreme Court in the case of BABU

KHAN ND OTHERS. vs. NAZIM KHAN (DEAD)

BY L.RS., AND OTHERS [AIR 2001 SC 1740]

has held as under:-

8. For bringing a suit for possession of

immovable property the period of limitation

is 12 years when the possession of a

defendant becomes adverse to the plaintiff.

Once a suit for recovery of possession is

instituted against a defendant in adverse

possession his adverse possession does

not continue thereafter. In other words, the

running of time for acquiring title by

adverse possession gets arrested.

The legal position that emerges out of the

decisions extracted above is that once a

suit for recovery of possession against the

defendant who is in adverse possession is

54

filed, the period of limitation for perfecting

title by adverse possession comes to a

grinding halt. We are in respectable

agreement with the said statement of

law........."

25. The Supreme Court in the case of KONDA

LAKSHMANA BAPUJI VS. GOVT. OF ANDHRA

PRADESH AND OTHERS [AIR 2002 SC 1012]

has held as under:-

58. In Balkrishan Vs. Satyaprakash &

Ors. (J.T. 2001 (2) SC 357), this Court

held:

"The law with regard to perfecting title by

adverse possession is well settled. A

person claiming title by adverse

possession has to prove three "nec" - nec

vi, nec clam and nec precario. In other

words, he must show that his possession

is adequate in continuity in publicity and

in extent."

55

26. The Supreme Court in the case of

RAMAIAH vs. N. NARAYANA REDDY (DEAD)

BY L.RS., [AIR 2004 SC 4261] has held as

under:-

"9. ... ... Article 64 of the Limitation Act,

1963 (Article 142 of the Limitation Act,

1908) is restricted to suits for possession

on dispossession or discontinuance of

possession. In order to bring a suit within

the purview of that article, it must be

shown that the suit is in terms as well as

in substance based on the allegation of

the plaintiff having been in possession

and having subsequently lost the

possession either by dispossession or by

discontinuance. Article 65 of the Limitation

Act, 1963 (Article 144 of the Limitation

Act, 1908) is a residuary article applying

to suits for possession not otherwise

provided for. Suits based on plaintiffs' title

in which there is no allegation of prior

possession and subsequent dispossession

alone can fall within article 65. The

56

question whether the article of limitation

applicable to a particular suit is article 64

or article 65 has to be decided by

reference to pleadings. The plaintiff

cannot invoke article 65 by suppressing

material facts. In the present case, in suit

no.357/60 instituted by N. Narayana

Reddy in the Court of Principal Munsiff,

Bangalore, evidence of the appellant

herein was recorded."

27. The Supreme Court in the case of SAROOP

SINGH VS. BANTO AND OTHERS [(2005) 8

SCC 330] has held as under:-

"28. The statutory provisions of the

Limitation Act have undergone a change

when compared to the terms of Articles 142

and 144 of the schedule appended to the

Limitation Act, 1908, in terms whereof it

was imperative upon the plaintiff not only

to prove his title but also to prove his

possession within twelve years, preceding

the date of institution of the suit. However,

57

a change in legal position has been effected

in view of Articles 64 and 65 of the

Limitation Act, 1963. In the instant case,

plaintiff-respondents have proved their title

and, thus, it was for the first defendant to

prove acquisition of title by adverse

possession. As noticed hereinbefore, the

first defendant- Appellant did not raise any

plea of adverse possession. In that view of

the matter the suit was not barred.

29. In terms of Article 65 the starting point

of limitation does not commence from the

date when the right of ownership arises to

the plaintiff but commences from the date

defendant's possession becomes adverse.

[See Vasantiben Prahladji Nayak and

Others vs. Somnath Muljibhai Nayak and

Others (2004) 3 SCC 376]

30. 'Animus possidendi' is one of the

ingredients of adverse possession. Unless

the person possessing the land has a

requisite animus the period for prescription

does not commence. As in the instant case,

58

the Appellant categorically states that his

possession is not adverse as that of true

owner, the logical corollary is that he did

not have the requisite animus. [See Md.

Mohammad Ali (Dead) By LRs. Vs. Jagdish

Kalita and Others, (2004) 1 SCC 271, para

21]

31. Yet again in Karnataka Board of Wakf

vs. Government of India it was observed

(SCC p. 785, para 11):

“ Physical fact of exclusive possession and

the animus possidendi to hold as owner in

exclusion to the actual owner are the most

important factors that are to be accounted

in cases of this nature. Plea of adverse

possession is not a pure question of law but

a blended one of fact and law. Therefore, a

person who claims adverse possession

should show: (a) on what date he came into

possession, (b) what was the nature of his

possession, (c) whether the factum of

possession was known to the other party,

(d) how long his possession has continued,

59

and (e) his possession was open and

undisturbed. A person pleading adverse

possession has no equities in his favour.

Since he is trying to defeat the rights of the

true owner; it is for him to clearly plead and

establish all facts necessary to establish

his adverse possession."

28. The Supreme Court in the case of T.

ANJANAPPA AND OTHERS vs.

SOMALINGAPPA AND ANOTHER [(2006) 7

SCC 570] has held as under:-

"12. 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

60

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.

13. Possession to be adverse must

be possession by a person who

does not acknowledge the other's rights but

denies them.

24. It is a matter of fundamental principle

of law that where possession can be

referred to a lawful title, it will not be

considered to be adverse. It is on the basis

of this principle that it has been laid down

61

that since the possession of one co- owner

can be referred to his status as co- owner, it

cannot be considered adverse to other co-

owners."

(See Vidya Devi v. Prem Prakash, SCC p.

504, para 24.).

14. 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.

"14. ... 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

62

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. ...

15. Where possession could 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

63

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. (See

Annasaheb Bapusaheb Patil v. Balwani,

SCC p. 554, paras 14-15.)

15. 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.

64

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 )

16. Adverse possession is that form of

possession or occupancy of land which is

inconsistent with the title of any person to

65

whom the land rightfully belongs and tends

to extinguish that person's title, which

provides that no person shall make an

entry or distress, or bring an action to

recover any land or rent, but within twelve

years next after the time when the right

first accrued, and does away with the

doctrine of adverse possession, except in

the cases provided for by Section 15.

Possession is not held to be adverse if it

can be referred to a lawful title.

17. According to Pollock, "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".

18. It is the basic principle of law of

adverse possession that (a) it is the

temporary and abnormal separation of the

property from the title of it when a man

holds property innocently against all the

world but wrongfully against the true

66

owner; (b) it is possession inconsistent with

the title of the true owner.

19. In Halsbury's 1953 Edition, Volume-I it

has been stated as follows:

"At the determination of the statutory period

limited to any person for making an entry

or bringing an action, the right or title of

such person to the land, rent or advowson,

for the recovery of which such entry or

action might have been made or brought

within such period is extinguished and

such title cannot afterwards be reviewed

either by re-entry or by subsequent

acknowledgement. The operation of the

statute is merely negative, it extinguished

the right and title of the dispossessed

owner and leaves the occupant with a title

gained by the fact of possession and

resting on the infirmity of the right of the

others to eject him"

67

20. It is well recognized proposition in law

that mere possession however long does

not necessarily means 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 so as to show that it is

adverse to the true owner. The classical

requirements of acquisition of title by

adverse 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."

68

29. The Supreme Court in the case of

KRISHNAMURTHY S. SETLUR [(DEAD) BY L.RS]

vs. O. V. NARASIMHA SETTY AND OTHERS, [AIR

2007 SC 1788] has held as under:-

"13. ... ... In the matter of adverse

possession, the courts have to find out

the plea taken by the plaintiff in the

plaint. In the plaint, the plaintiff who

claims to be owner by adverse

possession has to plead actual

possession. He has to plead the period

and the date from which he claims to be

in possession. The plaintiff has to plead

and prove that his possession was

continuous, exclusive and undisturbed to

the knowledge of the real owner of the

land. He has to show a hostile title. He

has to communicate his hostility to the

real owner. None of these aspects have

been considered by the High Court in its

impugned judgment. As stated above, the

impugned judgment is under section 96

69

CPC, it is not a judgment under section

100 CPC. As stated above, adverse

possession or ouster is an inference to be

drawn from the facts proved that work is

of the first appellate court."

30. The Supreme Court in the case of DES RAJ

AND OTHERS vs. BHAGAT RAM (DEAD) BY

LRS. AND OTHERS [(2007) 9 SCC 641] has

held as under:-

"29. Yet again in T. Anjanappa and

Others v. Somalingappa and Another

[(2006) 7 SCC 570], it was held:[SCC

pp.574-75,para 12):

"12. 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

70

law is firmly established that a person

who bases his title on adverse


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."

31. The Supreme Court in the case of HEMAJI

WAGHAJI JAT vs. BHIKHABHAI

KHENGARBHAI HARIJAN AND OTHERS [ AIR

2009 SC 103] has held as under:-

71

"14. In S.M. Karim v. Bibi Sakina AIR

1964 SC 1254, Hidayatullah, J. speaking

for the court observed as under:-

"Adverse possession must be adequate in

continuity, in publicity and extent and a

plea is required at the least to show when

possession becomes adverse so that the

starting point of limitation against the

party affected can be found.

There is no evidence here when

possession became adverse, if it at all did

and a mere suggestion in the relief clause

that there was an uninterrupted

possession for "several 12 years"; or that

the plaintiff had acquired "an absolute

title was not enough to raise such a plea.

Long possession is not necessarily

adverse possession and the prayer clause

is not a substitute for a plea";

15. The facts of R. Chandevarappa &

amp; Others v. State of Karnataka & amp;

Others (1995) 6 SCC 309 are similar to the

72

case at hand. In this case, this court

observed as under:-

"The question then is whether the

appellant has perfected his title by

adverse possession. It is seen that a

contention was raised before the

Assistant Commissioner that the appellant

having remained in possession from 1968,

he perfected his title by adverse

possession. But the crucial facts to

constitute adverse possession have not

been pleaded. Admittedly the appellant

came into possession by a derivative title

from the original grantee. It is seen that

the original grantee has no right to

alienate the land. Therefore, having come

into possession under colour of title from

original grantee, if the appellant intends to

plead adverse possession as against the

State, he must disclaim his title and plead

his hostile claim to the knowledge of the

State and that the State had not taken

any action thereon within the prescribed

period. Thereby, the appellant's

73

possession would become adverse. No

such stand was taken nor evidence has

been adduced in this behalf. The counsel

in fairness, despite his research, is unable

to bring to our notice any such plea having

been taken by the appellant".

16. In D. N. Venkatarayappa and Another

v. State of Karnataka and Others (1997) 7

SCC 567 this court observed as under:-

"Therefore, in the absence of crucial

pleadings, which constitute adverse

possession and evidence to show that the

petitioners have been in continuous and

uninterrupted possession of the lands in

question claiming right, title and interest

in the lands in question hostile to the

right, title and interest of the original

grantees, the petitioners cannot claim that

they have perfected their title by adverse

possession."

74

17. In Md. Mohammad Ali (Dead) By LRs.

v. Jagadish Kalita & amp; Others (2004) 1

SCC 271, paras 21-22, this Court

observed as under:

"21. For the purpose of proving adverse

possession/ouster, the defendant must

also prove animus possidendi.

22. ....We may further observe that

in a proper case the court may have to

construe the entire pleadings so as to

come to a conclusion as to whether the

proper plea of adverse possession has

been raised in the written statement or not

which can also be gathered from the

cumulative effect of the averments made

therein;

18. In Karnataka Board of Wakf v. Govt. of

India (2004) 10 SCC 779 at para 11, this court

observed as under:-

"In the eye of the law, an owner would

be deemed to be in possession of a

75

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 the 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."

The court further observed that plea of

adverse possession is not a pure

question of law but a blended one of fact

76

and law. Therefore, a person who claims

adverse possession should show: (a) on

what date he came into possession, (b)

what was the nature of his possession,

(c) whether the factum of possession

was known to the other party, (d) how

long his possession has continued, and

(e) his possession was open and

undisturbed. A person pleading adverse

possession has no equities in his favour.

Since he is trying to defeat the rights of

the true owner, it is for him to clearly

plead and establish all facts necessary

to establish his adverse possession.

In Saroop Singh v. Banto (2005) 8 SCC 330 this

Court observed: (See Vasantiben Prahladji

Nayak v. Somnath Muljibhai Nayak (2004) 3

SCC 376)

30. `Animus possidendi' is one of the

ingredients of adverse possession.

Unless the person possessing the land

77

has a requisite animus the period for

prescription does not commence. As in

the instant case, the appellant

categorically states that his possession

is not adverse as that of true owner, the

logical corollary is that he did not have

the requisite animus. (See Md.

Mohammad Ali (Dead) by LRs. v.

Jagdish Kalita and Others (2004) 1 SCC

271)"

20. This principle has been reiterated later in

the case of M. Durai v. Muthu and Others

(2007) 3 SCC 114 para 7. This Court observed

as under:

"...In terms of Articles 142 and 144 of the

old Limitation Act, the plaintiff was

bound to prove his title as also

possession within twelve years preceding

the date of institution of the suit under

the Limitation Act, 1963, once the plaintiff

proves his title, the burden shifts to the

defendant to establish that he has

78

perfected his title by adverse

possession."

21. This court had an occasion to

examine the concept of adverse

possession in T. Anjanappa & Others v.

Somalingappa & Another [(2006) 7 SCC

570]. The court observed that a person

who bases his title on adverse


unequivocal evidence that his title was

hostile to the real owner and amounted to

denial of his title to the property claimed.

The court further observed that the

classical requirements of acquisition of

title by adverse 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.

79

22. In a relatively recent case in P. T.

Munichikkanna Reddy & Others v.

Revamma & Others (2007) 6 SCC 59] this

court again had an occasion to deal with

the concept of adverse possession in

detail. The court also examined the legal

position in various countries particularly

in English and American system. We

deem it appropriate to reproduce relevant

passages in extenso. The court dealing

with adverse possession in paras 5 and

6 observed as under:-

"5. 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. [See Downing v. Bird 100 So. 2d

57 (Fla. 1958), Arkansas Commemorative

Commission v. City of Little Rock 227

80

Ark. 1085 : 303 S.W.2d 569 (1957);

Monnot v. Murphy 207 N.Y. 240, 100 N.E.

742 (1913); City of Rock Springs v. Sturm

39 Wyo. 494, 273 P. 908, 97 A.L.R. 1

(1929).]

6. 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

81

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 color of title. (See American

Jurisprudence, Vol. 3, 2d, ). It is

important to keep in mind while studying

the American notion of Adverse

Possession, especially in the backdrop of

Limitation Statutes, that the intention to

dispossess can not be given a complete

go by. Simple application of Limitation

shall not be enough by itself for the

success of an adverse possession claim."

32. This Court in Janatadal Party’s case (referred

to supra) has held as under:

115. From the aforesaid judgments, it is

clear that Article 65 of the Limitation Act,

1963 (Article 144 of the Limitation Act,

1908) is a residuary article applying to

suits for possession not otherwise

provided for. In terms of Articles 142 and

144 of the old Limitation Act, the plaintiff

82

was bound to prove his title as also

possession within twelve years preceding

the date of institution of the suit. The

statutory provisions of the Limitation Act

have undergone a change when

compared to the terms of Articles 142 and

144 of the schedule appended to the

Limitation Act, 1908. By reason of the

Limitation Act, 1963, 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. Once the plaintiff proves his title, the

burden shifts to the defendant to

establish that he has perfected his title

by adverse possession. In terms of Article

65 the starting point of limitation does not

commence from the date when the right

of ownership arises to the plaintiff but

commences from the date defendant's

83

possession becomes adverse. Therefore,

when possession can be said to be

adverse is the moot point.

33. From the aforesaid judgments, it is clear that in

terms of Article 65 of the Limitation Act, the starting point of

limitation does not commence from the date when the right of

ownership arises to the plaintiffs, but commences from the

date when the defendants’ possession became adverse.

Therefore, the question that arises in all these cases is when

did the possession of the defendant became adverse?.

34. As stated earlier, it is only when the defendants

assert their title to the knowledge of the plaintiffs, the adverse

possession commences, and it presupposes. The defendants

should admit that the plaintiffs are the owners of the property.

They must further plead and prove that against their will and

wish, the defendants forcibly entered the properties of the

plaintiffs and thereafter, being in possession.

84

35. As already held, none of the ingredients are

established in these cases. The plea taken is not in

accordance with law. The evidence clearly establishes, at the

inception, the possession of the defendants was lawful.

Merely because they stopped paying rents from 1970 and the

plaintiffs demanded payment of rent or to vacate the schedule

property, that itself would not constitute the starting point of

adverse possession. In that view of the matter, the Trial Court

on proper appreciation of evidence on record has rightly held

that the suit is not barred by limitation.

36. Insofar as the contention that the suit is hit by

Article 66 of the Limitation Act is concerned, though the

defendants never admitted that they were tenants under the

plaintiffs, it is only in cases where, the lease is not in dispute;

the tenants commit breach of terms of the contract;

consequently if there is a clause of forfeiture in the lease

agreement, or the plaintiff terminates the tenancy and

thereafter fails to file the suit for recovery of possession within

85

12 years thereafter, the Article 66 is attracted. None of these

conditions exist in the suit in these cases and therefore, we do

not see any substance in the said contention also.

37. For the aforesaid reasons, we do not see any merit

in these appeals. Accordingly, all the four appeals are

dismissed.

Parties to bear their own costs.

Sd/- JUDGE

Sd/- JUDGE

RS/* mpk/-* CT-VR

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED...

Documents

Transcript of IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED...