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RAJASTHAN HIGH COURT
Atul Kumar Jain, J.
Om Prakash —Appellant
versus
Urban Improvement trust, Bikaner —Respondent
S.B. Civil Misc. Appeal No. 1929 of 2013
Decided on 9.1.2014
Counsel for the Parties:
For the Appellant:Manoj Bhandari, Advocate.
For the Respondent:Sheetal Kumbhat, Advocate.
IMPORTANT POINT
One who bases his title on the basis of adverse possession, must show by clear and unequivocal evidence that his title was hostile to the real owner and amounted to denial of his title to the property claimed.
Headnote:Adverse possession—Suit for declaration of title—Dismissed by trial court—Appeal—Instantly appellant failed to prove even his settled possession on suit property, what to talk of adverse possession of suit property—It is settled law that one who bases his title on basis of adverse possession, must show by clear and unequivocal evidence that his title was hostile to real owner and amounted to denial of his title to the property claimed—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—Finding of trial court that plaintiff appellant had not been able to bring out a prima facie case of adverse possession in his favour—Said finding of trial court held justified—On the basis of cursory pleading only, no relief could be given to appellant plaintiff—Appeal having no merit, dismissed. (Paras 4 to 6)
Result: Appeal dismissed.
Atul Kumar Jain, J.— The learned Advocate for the appellant has relied upon the following rulings.
(1) Heera Lal v. Municipal council, Churu &Anr., 2004(4) WLC (Raj.) 414.
In this case it was it was held that a person who is in settled possession of land, cannot be dispossessed without due process of law.
(2) Ram Path & Ors. v. State of Haryana, 2009(7) SCC 614: 2009(5) Supreme 216.
In this case, necessary ingredients of settled or actual possession were discussed in relation to right of private defence of accused person in criminal case.
(3) Sukha Singh & Anr. v. Mahal Singh &Anr, 2002(4) WLC (Raj.) 152).
In this case it was held that while deciding application under Order XXXIX, Rule 1 and 2 CPC, prima facie case should not be confused with prima facie title.
2. The learned Advocate for the respondent-TUI has relied upon the following ruling:
(1) State of Haryana v. Mukesh Kumar, 2012 AIR SCW 276.
In this case, Hon’ble the Supreme Court has felt an urgent need of suitable changes in law of adverse possession. It was also held in this case that outmoded law of adverse possession essentially asks the judiciary to place its stamp of approval upon conduct that the ordinary Indian citizen would find reprehensible. It was further held that the doctrine of adverse possession has troubled a great many legal minds. The time has come for change. It was also observed in this case that people are often astonished to learn that a trespasser may take the title of a building or land from the true owner in certain conditions and such theft is even authorised by law. It was observed in this case that theory of adverse possession is also perceived by the general public as a dishonest way to obtain title to property.
(2) Hemaji Waghaji Jai v. Bhikhabhai Khengarbhai Harijan & Ors., 2008 AIR SCW 6996: 2008(7) Supreme 11.
3. In this case also Hon’ble the Supreme Court observed that a plea of adverse possession is not a pure question of law but a blended one of fact and law and, 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. It was further held that law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contention of law. Hon’ble the Apex Court felt an urgent need of fresh look regarding-the law on adverse possession and, ultimately, it was held that suit for declaration and possession ought not have been decreed on the ground of adverse possession.
4. I have gone through the rulings cited at the Bar. I have perused the impugned order and I have perused all the papers annexed with the petition. The appellant has not been able to prove even his settled possession on the suit property, what to talk of adverse possession of the suit property. It is settled law of land that one who bases his title on the basis of adverse possession, must show by clear and unequivocal evidence that his title was hostile to the real owner and amounted to denial of his title to the property claimed. 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 capa
