IMPORTANT POINT
Mere possession however long does not necessarily means that it is adverse to true owner and adverse possession means hostile possession which is expressly or impliedly in denial of title of true owner.

Headnote:Limitation Act, 1963—Articles 64 and 65—Adverse Possession—Appellant filed suit for declaration of title and injunction—Defendant-respondent claimed to be in possession since 1969 and paying tax to municipality and claimed adverse possession of property—Trial Court dismissed suit—Lower appellate Court set aside judgment and decree of trial Court and upheld title of plaintiff and granted relief of possession—High Court allowed second appeal holding that though defendants were in possession under mistaken assumption of title with themselves or with the Govt., same could not be a ground to hold that possession was not a hostile from stand point of real owner and found that suit for possession was not filed within 12 years of dispossession—High Court set aside the decree—Appeal—Adverse possession contemplated a hostile possession and amounted to denial of title of real owner—To decide alleged acts whether constituted adverse possession, animus of person was most crucial—Burden would be on defendants to prove affirmatively—If defendants were not sure who was the true owner, question of their being in hostile possession would not arise—Impugned judgment was liable to be set aside.
       Held : 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 others 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 owners right excluded him from the enjoyment of his property.(Para 12)
       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 anothers title. One who holds possession on behalf of another does not by mere denial of that others 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.(Para 16)
       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 owners 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 formers hostile action. The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise. Above being the position the High Courts judgment is clearly unsustainable. Therefore, the appeal which relates to OS 168/85 is allowed by setting aside the impugned judgment of the High Court to that extent.(Paras 22 & 23)

JUDGMENT

Arijit Pasayat, J.—Leave granted.

2. Challenge in these appeals is to the correctness of the judgment rendered by a learned Single Judge of the Karnataka High Court allowing in part two Second Appeals filed by the respondents in the present appeals.

3. Background facts in a nutshell are as under:

Two appeals were filed before the High Court against the judgment and decree passed by Civil Judge, Senior Division, Bellary in RA No.15/94 and RA No.16/94 arising out of O.S. No.168/85 and O.S.No.286/88 respectively on the file of Principal Munsiff, Bellary. O.S.No.168/85 was filed by the appellants. They filed a suit for declaration of title in respect of the suit schedule property described as a house site measuring 25 x 75 pictorially described in the rough sketch accompanying the plaint and which form part of CTS No.373/3A/1A/2/B in Block No.XXIV, Ward No.XXII, Devinagar, Bellary City. The plaintiffs claimed title to the property by virtue of entries in the Municipality records. The suit site was originally granted by Municipality to one Thippanna in the year 1962 from whom one Siddalinagana Gouda purchased in the year 1971 under registered sale deed. One Narasimhappa purchased the suit property from Siddalingana Gouda by a registered sale deed in the year 1978. The plaintiffs purchased the suit site from Narasimhappa under Ex.P.1 on 29.5.1985, two days after filing of the suit. It is said that the erstwhile owner Narasimhappa had mortgaged the property in favour of plaintiff. According to plaintiffs, the defendants had encroached upon a portion of the suit property to an extent of 15 x 25, put a hutment about three years prior to the suit, and therefore, on the strength of title the plaintiff sought for the relief of declaration of title and possession and also sought for injunction against the defendant not to repair or put up any permanent structure on the suit site. The defendants filed the written statement denying the title of the plaintiff contending that the defendants are in possession of the premises since the year 1969 by putting up hutment and paying tax to the municipality. The defendants also contended that the property is a government land and they are in adverse possession of the property. A defence was also taken that the area has been declared as a slum area. Hence, they prayed for dismissal of the suit.

4. During the pendency of O.S. No.168/85, the defendant No.1 therein filed a suit in O.S. No.286/88. The plaint averments are reproduction of the written statement in O.S. No. 168/85.

5. The trial Court dismissed the suit of T. Anjanappa, T. Sekharam and T. Govind (plaintiffs in O.S. No.168/85) by rejecting claim of plaintiffs title to the property. The suit filed by T. Somalingappa i.e. O.S.No.286/88 came to be allowed. Present appellants filed two appeals against the judgment and decree in O.S. No.168/85 and O.S.No.286/88 before the Civil Judge, Senior Division, Bellary. In appeal, the appellate court set aside the judgment and decree of the trial Court in O.S. No.168/85 and O.S. No.286/88, upheld the title of the plaintiffs and also granted relief of possession and thus allowed both the appeals filed by the plaintiffs. Second Appeals were filed challenging correctness thereof by T. Somalingappa and Dakshyanamma.

6. The following substantial questions of law were formulated at the time of admission :

1. Though the appellate Court has concurred with the findings of the Principal Munsiff regarding the appellants possession and enjoyment of the property even before the purchase of the property by the respondent, whether the appellate court was justified in dismissing the suit of the appellants for injunction which was decreed by the Principal Munsiff.

2. The suit schedule property which was declared by the Government as a slum area, the action of the Municipality in granting allotment of the same in favour of the other persons. Whether the Municipality has got the power to allow the site, which was declar

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2006 Supreme(SC) 752

IMPORTANT POINTMere possession however long does not necessarily means that it is adverse to true owner and adverse possession means hostile possession which is expressly or impliedly in denial of title of true owner.

Cases Referred (2)

IMPORTANT POINT
Mere possession however long does not necessarily means that it is adverse to true owner and adverse possession means hostile possession which is expressly or impliedly in denial of title of true owner.