IMPORTANT POINT
Merely having adverse possession does not entitle plaintiff to claim ownership over property.

M.N. Bhandari, J.—By this writ petition, a challenge is made to the order dated 13th January, 1998 passed by the Board of Revenue.

2. Learned counsel submits that a suit was filed to claim rights in the land in dispute. It was based on possession for more than 30 years. The suit was decreed by the Assistant Collector vide its order dated 14th December, 1992. The respondents preferred an appeal before the Revenue Appellate Authority, which was dismissed vide the order dated 28th January, 1995. A further appeal by the respondents before the Board of Revenue remained successful. It was allowed vide order dated 09th January, 1997 and 13th January, 1998.

3. The Revenue Appellate Authority has recorded finding about petitioner’s possession on the land in dispute, that too, for more than 30 years. The Board of Revenue ignored the aforesaid while holding that finding about possession is only of 12 years. In view of the above, the impugned order passed by the Board of Revenue deserves to be set aside. It is more so when, a certificate has been given by the Administrator showing possession of the petitioner and, otherwise, the documents were available to show peaceful possession of the petitioner for more than 30 years.

4. I have considered the submissions made by learned counsel and perused the record.

5. The perusal of the order passed by the ADM shows it to be based on possession of the petitioner for more than 12 years, whereas, it need to be for more than 30 years in case land belongs to the government or its authority.

6. The aforesaid is only one part. The Revenue Appellate Authority recorded finding about possession of more than 30 years but failed to consider that mere possession for whatever length of time did not result in adverse possession. To claim it, it must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. The burden of proof is on the

party claiming it but the petitioner failed to discharge its obligation other than to prove the possession.

7. The issue aforesaid was decided by the Apex court in the case of Thakur Kishan Singh(dead) v. Arvind Kumar, (1994) 6 SCC 591. The relevant para of the said judgment is quoted hereunder for ready reference:

5. “As regards adverse possession, it was not disputed even by the trial court that the appellant entered into possession over the land in dispute under a licence from the respondent for purposes of brick-kiln. The possession thus initially being permissive, the burden was heavy on the appellant to establish that it became adverse. A possession of a co-owner or of a licencee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissible possession into adverse possession. Apart from it, the Appellate Court has gone into detail and after considering the evidence on record found it as a fact that the possession of the appellant was not adverse. The learned Counsel, despite strenuous argument, could not demolish the finding of adverse possession. Attempt was made to rely on the evidence led on behalf of the parties and the evidence of the Commissioner who prepared the map. We are afraid that such an exercise is not permissible even in second appeal, what to say of the jurisdiction exercised by this Court under Article 136 of the Constitution. Further, we do not find that the appellant has suffered any injustice which requires to be remedied by this Court.”

8. In the case of Karnataka Board of wakf v. Govt. of India, 2004 (10) SCC 779, the Hon’ble Apex Court held as under:

“11. In the eye of 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