2013 Supreme(Kar) 643

KARNATAKA HIGH COURT
N. Kumar and V. Suri Appa Rao, JJ.
Janatha Dal Party - Appellant
Versus
The Indian National Congress, New Delhi and Others - Respondents
Regular First Appeal No. 2011 of 2005,
Decided on : 11.10.2013

Headnote:ADVERSE POSSESSION - Concept of adverse possession: [N. Kumar & Suri Appa Rao, JJ] 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 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 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 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. 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.

       ADVERSE POSSESSION - Pleading & Proof: [N. Kumar & Suri Appa Rao, JJ] 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 raise 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 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 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 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 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 act5s 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 and circumstances of each case. Under Article 65 of the Limitation Act, burden is on the defendants to prove affirmatively.

        A person who claims to be the owner under a title deed cannot turn round and contend that he has perfected his title by adverse possession. The plea of adverse possession presupposes the person putting forth the plea of adverse possession has no title and the person against whom the said plea is set up is the owner. The original owner by his inaction even after the person who set up the plea of adverse possession asserted a hostile title openly to his knowledge and continued in possession for more than 12 years from the date of assertion of hostile title, keeps quite, then the title of the real owner stands extinguished and the said title vest in the person who had no title to the property till then. This is the purport of Section 27 of the Limitation Act, where the law provides for extinguishment of right to property. The Section makes it clear that at the determination of 12 years period for instituting a suit for possession of any property, his right to the said property shall be extinguished. It refers to Article 64 and Article 65 of the Limitation Act which are the provisions meant for suits for possession of immovable property based on previous possession and not on title for the possession of immovable property based on title. In the case for suit for possession of immovable property based on previous possession, the time begins to run from the date of dispossession. Whereas, in the case of possession of immovable property based on title, the time begins to run when the possession of the defendant becomes adverse to the plaintiff. Therefore, it is clear that when title is not in dispute and merely because a person continues in possession for any length of time, the said person would not acquire title by adverse possession. Consequently, the suit for possession based on title could not be said to be barred by time. Therefore, the starting point of limitation under Article 65 of the Limitation Act, is when the possession of the defendants becomes adverse to the plaintiff. 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 title.

       CODE OF CIVIL PROCEDURE, 1908 - Order 1, Rule 8: [N. Kumar & Suri Appa Rao, JJ] Suit in Representative Capacity - Scope and object - A representative suit is one which is filed by one or more persons under this rule on behalf of themselves and others having the same interest or a suit allowed to be defended by one or more person on behalf of themselves and others having the same interest. Rule 8 is an exception to the general rule that all person interested in a suit ought to be made parties thereto. The object for which this provision is enacted is really to facilitate the decision of questions in which a large body of persons are interested, without recourse to the ordinary procedure. In case where the common right or interest of a community or members of an association or large sections is involved, there will be insuperable practical difficulty in the institution of suits under the ordinary procedure, where each individual has to maintain an action by a separate suit. Thus, to avoid numerous suits being filed for decision of a common question Order 1, Rule 8 has come to be enacted. It is the existence of a sufficient community of interest among the persons on whose behalf or against whom the suit is instituted that should be the governing factor in deciding whether the procedure under this rule could properly be adopted or not. Where right of communities to own property are recognized, it is necessary that this rule should receive an interpretation to sub-serve the practical needs of the situation. This rule is an enabling provision which entitles one party to represent many who have a common cause of action; but it does not force any one to represent many if his action is maintainable without the joinder of the other persons. It presupposes that each one of the numerous person by himself has a right of suit.

        The power to grant permission to the parties either to sue or be sued in a representative capacity is conferred on the Court and the said power is required to be exercised after being satisfied as to whether the subject matter of the suit concerns the interest of numerous persons or not. The notice is given by the Court, though at the plaintiff’s expense. There are no word in Order 1, Rule 8 to limit its scope to any particular category of suits or to exclude a suit. It is essential that the parties should have the same interest in the suit. Any member of a community may successfully bring a suit to assert his right in the community property or for protecting such a property.

       CODE OF CIVIL PROCEDURE, 1908 - Order 6, Rule 1: [N. Kumar & Suri Appa Rao, JJ] Pleadings - Pleadings shall mean plaint or written statement. Order 6, Rule 2 of CPC states what the pleadings should contain. Every pleading shall contain only a statement in a concise form of the material facts on which the party relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved. Therefore pleading must state facts and not law. It must state material facts and material facts only. It must state only the facts on which the party pleading relies for his claim or defence and not the evidence by which they are to be proved. The material facts on which the party pleading relies for his claim or defence are called facta probanda. The evidence or the facts by means of which they are to be proved are called facta probantia. Every pleading should contain only facta porbanda, and not facta probantia. The distinction is taken in the very rule itself between the facts on which the party relies and the evidence to prove those facts.

        The general rule, is that the relief should be founded on pleadings made by the parties. It is equally well settled that in the absence of pleadings, evidence if any produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The pleadings however should receive a liberal construction. No pedantic approach should be adopted to defeat justice on hair splitting technicalities.

       LIMITATION ACT, 1963 - Section 27: [N. Kumar & Suri Appa Rao, JJ] Scope - 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 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 of this Section. The full period prescribed for a suit for possession extinguished in favour of the wrong doer. Thus, an owner of property dose not loose 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 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 vacuum. 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.

       LIMITATION ACT, 1963 - Section 27: [N. Kumar & Suri Appa Rao, JJ] Scope - 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 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 of this Section. The full period prescribed for a suit for possession extinguished in favour of the wrong doer. Thus, an owner of property dose not loose 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 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 vacuum. 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

       LIMITATION ACT, 1963 - Section 65: [N. Kumar & Suri Appa Rao, JJ] Limitation for suit for possession - Plea of adverse possession - 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 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 possession becomes adverse. Therefore when possession can be said to be adverse is the moot point.

       SPECIFIC RELIEF ACT, 1963 - Section 34: [N. Kumar & Suri Appa Rao, JJ] Suit for declaration of title - A perusal of Section 34 makes it clear that a suit for declaration may be instituted against any person denying or interested to deny his title to such character or right. Therefore it is clear that a suit may be brought under this Section not only against a person denying but a person interested to deny the plaintiff’s right to the property. The words ’interested to deny’ have been interpreted to mean that the person interested to deny a legal character or a right to property is a person with a rival claim of some sort and with some interest resembling in its nature that of the person whose legal character or right is denied. There must be a plaintiff having a legal character and a defendant interested to deny it. The plaintiff has to allege and prove that defendant has denied or is interested in denying the legal character or right to property, before the filing of the suit. A suit for declaration does not lie where there has been no denial, express or implied, of the plaintiff’s legal character, or right to property. No cause of action accrues to the plaintiff until there is some infringement or threatened infringement of his right. There must be an overt, hostile or adverse act calculated to prejudice the plaintiff’s title. Anything which has a tendency even to a slightest degree, to cast a doubt upon the free exercise of the plaintiff’s right is a cloud, which may entitle the plaintiff to claim declaration. Even a verbal denial is sufficient. However, the plaintiff need not seek declaration where the defendant merely claims, in a manner that is not serious, that the defendant is in adverse possession, the plaintiff can seek possession without declaration. The denial of title must be communicated to the plaintiff order that any cause of action may arise. Where there is a denial of rights, the plaintiff needs to seek declaration. A plaintiff may seek declaration where an adverse claim has been set up to his absolute title, under a deed, an alienation, a fraudulent conveyance, an order of an officer or authority, acts of trespass or encroachment. A plaintiff may have a cause of action because of an entry effected by revenue officers in the revenue records, but not where it does not affect the rights of the plaintiffs.

       SPECIFIC RELIEF ACT, 1963 - Sections 34 & 38: [N. Kumar & Suri Appa Rao, JJ] Suit for declaration of title and possession - Requirement - Held, It is plain and well-settled that in order to claim a decree for declaration of title and for recovery of possession in the civil suit, the plaintiff had to essentially plead necessary facts so that the defendant could meet that case in the written statement and the parties could adduce evidence on such claims. The suit is one for declaration of title and for possession. In a suit for declaration of title, the plaintiff has to establish his title. Title cannot be established by oral evidence. It has to be established by producing documents under which he is claiming title, most of the time under a registered document. In so far as documents are concerned, Section 61 of the Evidence Act, mandates that the contents of the document may be proved either by primary or secondary evidence. Primary evidence means, documentary evidence produced for inspection of the Court. Therefore, when a particular fact is to be established by production of documentary evidence, there is no scope for leading oral evidence and there is no scope for personal knowledge. What is to be produced is the primary evidence, i.e., the document itself.

       SPECIFIC RELIEF ACT, 1963 - Sections 34 & 38: [N. Kumar & Suri Appa Rao, JJ] Suit for Declaration of title and recovery of possession and mesne profits - Dispute regarding Congress/Janata Bhavan, Bangalore - Dispute between Congress and Janata Dal Party - Vacant land was gifted in 1949 to Bangalore City Congress Committee which was part of KPCC and the Congress - Split in Congress and Janata parties - Certified copy of gift deed produced - Oral evidence as to putting up of constructions - No evidence by defendants as to title - Plea of adverse possession not proved - Plea that representative capacity not maintainable found not tenable - Trial Court decreed the suit holding that the property belongs to Congress Party. Appeal dismissed by High Court.