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2017 Supreme(Bom) 1144
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. Gupte, J.
Maruti Dagadu Charwad (Since Deceased) through his legal heirs and Others – Appellants
Versus
Shri Bhau Nama Gujar (Since deceased) through his legal heirs and Others – Respondents
Second Appeal No. 62 of 1995
Decided On : 07-03-2017
For the Appellants : Mr. Sanjeev Rairkar and Mr. Nikhil R. Vidwans.
For the Respondents: Mr. Yatin Shah, Ms. Harsha Shah and Ms. Aditi Bhat.
Headnote:Limitation Act, 1963-Article 65-Adverse possession.-Adverse possession not required to establish specific knowledge of true owner in all cases of adverse possession.
The law does not require any specific notice or, for that matter, any proof that there was specific knowledge on the part of the true owner of the adverse possessor`s possession or assertion of title. What is important is whether the possession was so open and sufficient in publicity as to impute knowledge on the part of the true owner. It should be open and not concealed. It should be effective so as to impute knowledge on the part of the true owner. It is not for the adverse possessor to establish specific knowledge of the true owner in all cases of adverse possession. As the Supreme Court noted in T. Anjanappa`s case (supra), adverse possession is of two kinds-one of a trespasser or a non-permissive possessor, which is adverse ab initio to the true owner and the other of a permissive possessor which becomes adverse by a change in his position, namely, the possessor asserting a hostile title or denying the title of the true owner. This assertion or denial, or, in other words, change in the position of the possessor, must be shown as being within the knowledge of the true owner and the Courts may insist on a notice of such change in the position of the possessor to the true owner. That, however, is not a case where the possession is that of a trespasser or a non-permissive possessor, which is adverse ab initio.
Limitation Act, 1963-Article 65-Adverse possession.-Defendant in continuous possession of land from year 1952 till date of filing of suit in year 1978 without any obstruction, is entitled to title by adverse possession.
In the premises, the impugned judgment and order of the first Appellate Court cannot be sustained. There is a clear error in applying the law of adverse possession to the facts found by the Court. The Second Appeal is, accordingly, allowed and the impugned judgment and order of 7th Additional District Judge, Pune, dated 17 November, 1994, is set aside and the judgment and decree dated 30 June, 1988 passed by the V Joint Civil Junior Division, Pune in Regular Civil Suit 1989 of 1978 is restored.
Limitation Act, 1963-Article 65-Adverse possession.-In absence of any thing to show that possession of a person is consistent with recognition of true owner`s title, possession can be termed as adverse.
There is a clear error in the impugned judgment of the first Appellate Court in applying the law of adverse possession to the facts of the present case. Any occupation of immovable property, which is inconsistent with the right of the true owner, is an act professing a title, which is adverse to the true owner. Where a person possesses an immovable property in a manner in which he is not entitled to possess it and there being nothing to show that he possesses it otherwise than as an owner, he is in adverse possession of it. In other words, unless there is something to show that his possession is consistent with the recognition of the true owner`s title, the possession can only be termed as adverse.
S.C. Gupte, J.
1. This Second Appeal challenges a judgment and order passed by the District Court at Pune in Civil Appeal No. 111 of 1989. By the impugned judgment and order, the learned District Judge allowed the Respondents' appeal and set aside the judgment and decree passed by the Trial Court in favour of the Original Appellant (now represented through his legal heirs), by which the Trial Court had dismissed the Respondents' suit for declaration and injunction. The Second Appeal raises substantial questions of law on the application of the law of adverse possession by the lower appellate court to the facts concurrently found by the courts below, particularly concerning the possession which the adverse possessor must show both in terms of its nature and its openness so as to found a plea of adverse possession.
2. Respondent Nos. 1 to 7 (Original Plaintiffs) had filed the present suit, being Regular Civil Suit No. 1989 of 1978, in the Court of Civil Judge, Junior Division at Pune, initially, for a declaration and injunction restraining the Defendants (the predecessor in title of the Appellants herein) from disturbing their possession. After rejection of their application for temporary injunction and confirmation of such rejection by the District Court in appeal, the Plaintiffs amended their plaint by seeking an alternative prayer for a decree of possession. The say filed by Defendant No. 1 in reply to the application for temporary injunction (Exhibit 19) was treated as a written statement of Defendant No. 1. The Trial Court accepted the Plaintiffs' case that they were owners of the suit land. It, however, came to the conclusion that the Plaintiffs had not proved that they were in possession of the suit land and, on the other hand, it was Defendant No. 1, who had proved that he was in possession of the suit land since the year 1952. The Trial Court held that Defendant No. 1 had proved that he had become the owner of the suit land by adverse possession and that, in the premises, the Plaintiffs were not entitled to any relief in the suit. The Trial Court, accordingly, dismissed the Plaintiffs' suit.
3. In the appeal filed by the Plaintiffs before the District Court, the learned District Judge accepted the findings of the Trial Court that the Plaintiffs were owners of the suit land but had failed to prove their possession of the same on the date of filing of the suit. The learned Judge held that Defendant No. 1 was in continuous possession of the same since the year 1952-53. The learned Judge, however, held that the possession of Defendant No. 1, though continuous in nature and existing throughout the statutory period of 12 years without any interruption, did not amount to adverse possession in law. The learned Judge held that in his pleadings, Defendant No. 1 had not asserted the date on which he entered into possession; that there was no evidence in what capacity he entered into possession of the suit land whether the possession was permissive or otherwise; and from which date he asserted a hostile title. The learned Judge held that there was no evidence that since the year 1952-53, or at any time, the predecessor-in-title of Defendant No. 1 or after the predecessor, he himself was in possession of the suit land by adverse possession or became owner of the suit land by adverse possession. These findings have been impugned in the present Second Appeal.
4. Learned Counsel for the Appellant submits that the Defendant in the present case had made out all ingredients of adverse possession. The possession was a hostile possession, that is to say, a possession which was expressly or impliedly in denial of the title of the owner, namely, the Plaintiffs; such adverse possession continued throughout the statutory period of 12 years, having, in fact, originated in the year 1952-53, when the Plaintiffs' predecessor, Rama Laxman Gujar, was the owner of the suit land and it continued without any interruption throughout during the peri
