Adverse possession requires open, hostile, and continuous possession, accompanied by an assertion of title hostile to the true owner.

VALMIKI J. MEHTA, J.

RFA No. 602/2006

1. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (‘CPC’) is filed by the plaintiff in the suit impugning the Judgment of the Trial Court dated 22.07.2006 by which the trial court has dismissed the suit for possession and mesne profits filed by the appellant/plaintiff and against the respondent/defendant with respect to the suit property comprising of one room, one finished kitchen, bathroom and latrine in the property no. WZ-436, Village Tihar, Hari Nagar, New Delhi, situated in erstwhile revenue record as Khasra Nos. 2066 and 2078/2, and as shown in Red in the Site Plan/Ex PW1/2.

2. The facts of the case are that the appellant/plaintiff pleaded that he is the co-owner of the suit property, and since the respondent/defendant was a trespasser in the suit property, hence the respondent/defendant was asked to vacate by serving a Legal Notice dated 22.11.2002. However, the respondent/defendant failed to vacate the suit property hence the subject suit for possession was filed in which mesne profits were also claimed at Rs. 2,000/- per month from three years prior to the filing of the suit.

3. The respondent/defendant contested the suit by filing written statement. It was pleaded by the respondent/defendant that he was the owner of the suit property because he had purchased it from Sh. Ganesh. It was also pleaded by the respondent/defendant that he had become owner of the suit property on account of adverse possession.

4. The only issue which has to be examined by this Court, is the sole issue which was argued on behalf of the respondent/defendant, and which is as to whether respondent/ defendant has become the owner of the suit property by adverse possession. So as to complete the narration, I would like to add that the trial court, as per the detailed discussion in paras 9 to 11 of the impugned judgment, has held that respondent/defendant is the co-owner of the suit property, and this detailed discussion includes reference to the Revenue Record Ex.PW4/1 to PW4/4, showing the name of the appellant/plaintiff and his predecessors-in-interest as co-owners of the suit property. Reference is also made in these paras to earlier litigation for partition between the co-owners and the decree passed in this regard dated 09.03.1987 has been proved and exhibited as Ex.PW5/11.

5. Adverse possession in law has to be proved and established by a person who claims to be in adverse possession showing nec vi, nec clam, nec precario i.e. open, hostile and continuous possession. Mere possession is not adverse possession and unless and until possession is accompanied by an assertion of title, hostile to the true owner, the possession does not become adverse possession. Article 65 of the Limitation Act, 1963, states that where a person files a suit for possession of an immovable property claiming title, a cause of action accrues and limitation for filing a suit for possession based on title commences when the defendant is shown to have pleaded and proved assertion of a title adverse to that of the plaintiff. Therefore, the point of time of assertion of hostile title is the specific point of time, arising of the cause of action for claiming ownership by adverse possession of 12 years by a defendant in a suit.

6. Let us examine in this case as to whether there is assertion of any hostile title by the respondent/defendant against the appellant/plaintiff or any other co-owner or against the world at large. I may note that it is not in dispute that the respondent/defendant is said to be in possession of the suit property since around 1986-87 and the subject suit has been filed on 20.01.2003. However, the issue requiring decision is not length of possession but length of possession of at least 12 years accompanied by an assertion of hostile title in favour of the respondent/defendant.

7. In my opinion, the respondent/defendant has miserably failed to prove that he has been in adverse pos