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Supreme Court of India
Sri Uttam Chand (D) Th Lrs . vs Nathu Ram (D) Thr. Lrs. on 15 January, 2020Author: Hemant Gupta
Bench: L. Nageswara Rao, Hemant Gupta
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 190 OF 2020
(ARISING OUT OF SLP (CIVIL) NO. 16321 OF 2011)
SHRI UTTAM CHAND (D) THROUGH LRS. …..APPELLANT(S)
VERSUS
NATHU RAM (D) THROUGH LRS. & ORS. …..RESPONDENT(S)
JUDGMENT
HEMANT GUPTA, J.
1. Plaintiff is in appeal before this Court aggrieved against judgment
and decree passed by the High Court of Delhi on 18 th February,
2011 whereby, the defendants second appeal was allowed and the
suit of the plaintiff for possession on the basis of title was
dismissed.
2. The plaintiff filed a suit for possession on the basis of purchase of
suit property from the Managing Officer, Department of
Rehabilitation, Government of India in a public auction held on
21st March, 1964. The certificate of sale was issued thereafter on
4th January, 1965. The plaintiff filed a suit for possession on 17 th
February, 1979 alleging the defendants to be in an unauthorised
possession of the suit property and who have refused to vacate the
same.
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3. The defendants in the written statement denied that the plaintiff is
the owner of the property. The defendants asserted that their
house existed on the property in question for more than the last
two centuries. The grandfather of the defendants was said to be in
possession of the property as owner, thereafter their father one
Tara Chand and now all the defendants are in possession of the
property as owners. It was denied that the property was ever
vested with the Managing Officer and, therefore, it was claimed
that the Managing Officer has no authority or jurisdiction to auction
the property in question. Therefore, the plaintiff has no interest,
right or title in the property.
4. Parties went to trial on the following issues:
“1. Whether the suit is properly valued for the purpose
of Court fee & Jurisdiction?
2. Whether the suit is time barred?
3. Whether the plaintiff is the owner of the property in
suit?
4. Whether the defendants become owner by adverse
possession of the property in suit?
5. Whether the defendants are in unauthorized
occupation of the property in dispute?
6. Relief.”
5. Before the learned trial court, the plaintiff examined PW-4 Chander
Bhan, Lower Division Clerk from the Land and Building Department
who has proved that the sale certificate was issued in favour of
plaintiff on 15th January, 1965. The learned trial court recorded the
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finding on the basis of testimonies of Din Dayal Khanna (PW-3),
Chander Bhan (PW-4) and S.B. Lal (PW-5) that the property is
situated in Khasra No. 9 and has been sold through auction. The
learned trial court also considered the testimonies of Bhagwan
Dass (DW-1) and Ranjit (DW-2), both sons of the defendant, that
the plaintiff is the owner of the property purchased through Ex.B4/1
in an auction from the Managing Officer, Department of
Rehabilitation. Thus, Issue No. 3 was held in favour of the plaintiff
and the plaintiff was found to be owner of the property. But Issue
Nos. 2, 4 and 5 were decided in favour of the defendants and
against the plaintiff and consequently the suit was dismissed but
with a direction to the plaintiff to make good the deficiency of court
fee of Rs. 2000/- within one month in view of the finding recorded
on Issue No. 1.
6. In the first appeal by the plaintiff, the learned First Appellate Court
affirmed the findings recorded by the trial court on Issue Nos. 1 and
3 that the plaintiff is the owner of the property in question.
However, in respect of Issue No. 2 as to whether the suit is time
barred, the learned First Appellate Court returned a finding that the
suit is within time as the same was filed on February 17, 1979 i.e.
before the completion of 12 years. Issue No. 2 was decided against
the defendants holding that the findings recorded by the trial court
that the limitation starts from the date of purchase of the suit
property is not sustainable. The right of the respondents over the
property was challenged before the completion of 12 years,
3
therefore, the suit filed in February, 1979 is within period of
limitation. Under issue No. 4, the findings recorded were that the
mere possession of land, however long it may be, would not ripe
into possessory title unless the possessor has animus possidendi to
hold the land adverse to the title of the true owner. The assertion
of title must be clear and unequivocal. Consequently, Issue No. 5
was also decided against the defendants and the suit stood
decreed.
7. In the second appeal, the High Court affirmed the finding of
ownership in favour of the plaintiff and relied upon electricity and
house tax bills showing the possession of the defendants over the
suit property from November, 1963. It was, thus, held that the
adverse possession of the defendants over the same matured
within 12 years, by November, 1995, therefore, the suit filed on
17th February, 1979 was barred by limitation.
8. The High Court referred to the statement of PW-1 Uttam Chand that
the suit property was assessed to house tax but no one had paid
such tax. He stated that there was only one kachha room of mud
at the site but he did not know when the unauthorised construction
was made in the suit property. The High Court considered the
statement of witness of the plaintiff to return a finding that Tara
Chand, deceased father of the defendants was found in possession
of the suit property in March, 1964. The High Court returned a
finding that Tara Chand was in occupation of the suit property even
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prior to the purchase of the same by the plaintiff in the year 1964.
The Court referred to the judgment of this Court reported as T.
Anjanappa & Ors. v. Somalingappa & Anr.1 to hold that the
defendants were in open, uninterrupted, peaceful and hostile
possession since March, 1964 and the period of 12 years was
completed in March, 1976. Therefore, the suit filed by the plaintiff
on 17th February, 1979 was barred by limitation.
9. Learned counsel for the appellant argued that for a successful plea
of adverse possession against the true owner, the person in
possession has to admit hostile possession to the knowledge of the
true owner. The defendants in their written statement have not
admitted the title of the appellant and of adverse possession to the
knowledge of the true owner. The defendants have denied vesting
of the land with the Managing Officer and the subsequent sale in
favour of the appellant. The trial court has returned a finding as to
the title of the appellant itself and such finding has not been set
aside neither by the First Appellate Court nor by the High Court.
The defendants are asserting their long and continuous possession
but such possession howsoever long cannot be termed as adverse
possession so as to perfect title within the meaning of Article 65 of
the Limitation Act. It was argued that long possession is not
necessarily adverse possession. Reliance is placed upon
Karnataka Board of Wakf v. Government of India & Ors.2,
Kurella Naga Druva Vudaya Bhaskara Rao v. Galla Jani
1 (2006) 7 SCC 570
2 (2004) 10 SCC 779
5
Kamma alias Nacharamma3 and Dagadabai (Dead) by Legal
Representatives v. Abbas alias Gulab Rustum Pinjari4.
10. On the other hand, learned counsel for the defendants argued that
the witness of the plaintiff has admitted the possession of the
defendants in the year 1964 itself i.e. before the purchase,
therefore, the possession is adverse to the knowledge of the
appellants.
11. In T. Anjanappa, this Court has set aside the finding of the High
Court that the defendants claiming adverse possession do not have
to prove who is the true owner. If the defendants are not sure who
the true owner is, the question of them being in hostile possession
as well as of denying the title of the true owner does not arise. The
Court held as under:
“12. 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.
Possession to be adverse must be possession by a
person who does not acknowledge the other’s rights but
denies them. 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 acts is the most crucial factor.
Adverse possession is commenced in wrong and is
aimed against right. 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.
3 (2008) 15 SCC 150
4 (2017) 13 SCC 705
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13. Possession to be adverse must be possession by a
person who does not acknowledge the other’s rights but
denies them:
“24. It is a matter of fundamental principle of
law that where possession can be referred to a
lawful title, it will not be considered to be
adverse. It is on the basis of this principle that it
has been laid down that since the possession of
one co-owner can be referred to his status as
co-owner, it cannot be considered adverse to
other co-owners.” (See Vidya Devi v. Prem
Prakash [(1995) 4 SCC 496] , SCC p. 504, para
24.)
14. Adverse possession is that form of possession or
occupancy of land which is inconsistent with the title of
the rightful owner and tends to extinguish that person’s
title. Possession is not held to be adverse if it can be
referred to a lawful title. The person setting up adverse
possession may have been holding under the rightful
owner’s title e.g. trustees, guardians, bailiffs or agents.
Such persons cannot set up adverse possession:
“14. … Adverse possession means a [hostile
possession] which is expressly or impliedly in
denial of title of the true owner. Under Article 65
[of the Limitation Act,] burden is on the
defendants to prove affirmatively. A person who
bases his title on adverse possession must show
by clear and unequivocal evidence i.e.
possession was hostile to the real owner and
amounted to a denial of his title to the property
claimed. 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.
The person who bases his title on adverse
possession, therefore, must show by clear and
unequivocal evidence i.e. possession was hostile
to the real owner and amounted to a denial of
his title to the property claimed. …
15. Where possession can 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
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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.
(See Annasaheb Bapusaheb
Patil v. Balwant [(1995) 2 SCC 543, p. 554 : AIR
1995 SC 895, p. 902] , SCC p. 554, paras 14-
15.)”
12. In Kurella Naga Druva Vudaya Bhaskara Rao, the payment of
tax receipts and mere possession for some years was found
insufficient to claim adverse possession. It was held that if
according to the defendant, the plaintiff was not the true owner, his
possession hostile to the plaintiff’s title will not be sufficient. The
Court held as under:
“19. The defendant claimed that he had perfected his
title by adverse possession by being in open,
continuous and hostile possession of the suit property
from 1957. He also produced some tax receipts showing
that he has paid the taxes in regard to the suit land.
Some tax receipts also showed that he paid the tax on
behalf of someone else. After considering the oral and
documentary evidence, both the courts have entered a
concurrent finding that the defendant did not establish
adverse possession, and that mere possession for some
years was not sufficient to claim adverse possession,
unless such possession was hostile possession, denying
the title of the true owner. The courts have pointed out
that if according to the defendant, the plaintiff was not
the true owner, his possession hostile to the plaintiff’s
title will not be sufficient and he had to show that his
possession was also hostile to the title and possession
of the true owner. After detailed analysis of the oral and
documentary evidence, the trial court and the High
Court also held that the appellant was only managing
the properties on behalf of the plaintiff and his
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occupation was not hostile possession.”
13. In Brijesh Kumar & Anr. v. Shardabai (Dead) by Legal
Representatives & Ors.5, the Court held as under:
“13. Adverse possession is hostile possession by
assertion of a hostile title in denial of the title of the
true owner as held in M. Venkatesh [M.
Venkatesh v. BDA, (2015) 17 SCC 1 : (2017) 5 SCC (Civ)
387] . The respondent had failed to establish peaceful,
open and continuous possession demonstrating a
wrongful ouster of the rightful owner. It thus involved
question of facts and law. The onus lay on the
respondent to establish when and how he came into
possession, the nature of his possession, the factum of
possession known and hostile to the other parties,
continuous possession over 12 years which was open
and undisturbed. The respondent was seeking to deny
the rights of the true owner. The onus therefore lay
upon the respondent to establish possession as a fact
coupled with that it was open, hostile and continuous to
the knowledge of the true owner. The respondent-
plaintiff failed to discharge the onus. Reference may
also be made to Chatti Konati Rao v. Palle Venkata
Subba Rao [Chatti Konati Rao v. Palle Venkata Subba
Rao, (2010) 14 SCC 316 : (2012) 1 SCC (Civ) 452] , on
adverse possession observing as follows: (SCC p. 322,
para 15)
“15. Animus possidendi as is well known is a
requisite ingredient of adverse possession. Mere
possession does not ripen into possessory title
until the possessor holds the property adverse
to the title of the true owner for the said
purpose. The person who claims adverse
possession is required to establish the date on
which he came in possession, nature of
possession, the factum of possession,
knowledge to the true owner, duration of
possession and that possession was open and
undisturbed. A person pleading adverse
possession has no equities in his favour as he is
trying to defeat the rights of the true owner
and, hence, it is for him to clearly plead and
establish all facts necessary to establish
adverse possession. The courts always take
unkind view towards statutes of limitation
5 (2019) 9 SCC 369
9
overriding property rights. The plea of adverse
possession is not a pure question of law but a
blended one of fact and law.””
14. As to whether the plaintiff can claim title on the basis of adverse
possession, this Court in a judgment reported as Ravinder Kaur
Grewal & Ors. v. Manjit Kaur & Ors.6 has held as under:
“60. The adverse possession requires all the three
classic requirements to co-exist at the same time,
namely, nec vi i.e. adequate in continuity, nec clam i.e.
adequate in publicity and nec precario i.e. adverse to a
competitor, in denial of title and his knowledge. Visible,
notorious and peaceful so that if the owner does not
take care to know notorious facts, knowledge is
attributed to him on the basis that but for due diligence
he would have known it. Adverse possession cannot be
decreed on a title which is not pleaded. Animus
possidendi under hostile colour of title is required.
Trespasser’s long possession is not synonymous with
adverse possession. Trespasser’s possession is
construed to be on behalf of the owner, the casual user
does not constitute adverse possession. The owner can
take possession from a trespasser at any point in time.
Possessor looks after the property, protects it and in
case of agricultural property by and large the concept is
that actual tiller should own the land who works by dint
of his hard labour and makes the land cultivable. The
legislature in various States confers rights based on
possession.”
15. The matter has been examined by a Constitution Bench in M
Siddiq (D) through LRs v. Mahant Suresh Das & Ors.7
wherein, it has been held that a plea of adverse possession is
founded on the acceptance that ownership of the property vests in
another, against whom the claimant asserts possession adverse to
the title of the other. The Court held as under:
“747. A plea of adverse possession is founded on the
acceptance that ownership of the property vests in
another against whom the claimant asserts a
6 (2019) 8 SCC 729
7 (2019) SCC OnLine SC 1440
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possession adverse to the title of the other. Possession
is adverse in the sense that it is contrary to the
acknowledged title in the other person against whom it
is claimed. Evidently, therefore, the plaintiffs in Suit 4
ought to be cognisant of the fact that any claim of
adverse possession against the Hindus or the temple
would amount to an acceptance of a title in the latter.
Dr Dhavan has submitted that this plea is a subsidiary
or alternate plea upon which it is not necessary for the
plaintiffs to stand in the event that their main plea on
title is held to be established on evidence. It becomes
then necessary to assess as to whether the claim of
adverse possession has been established.
748. A person who sets up a plea of adverse
possession must establish both possession which is
peaceful, open and continuous – possession which
meets the requirement of being ‘nec vi nec claim and
nec precario’. To substantiate a plea of adverse
possession, the character of the possession must be
adequate in continuity and in the public because the
possession has to be to the knowledge of the true
owner in order for it to be adverse. These requirements
have to be duly established first by adequate pleadings
and second by leading sufficient evidence. Evidence, it
is well settled, can only be adduced with reference to
matters which are pleaded in a civil suit and in the
absence of an adequate pleading, evidence by itself
cannot supply the deficiency of a pleaded case. Reading
paragraph 11(a), it becomes evident that beyond
stating that the Muslims have been in long exclusive
and continuous possession beginning from the time
when the Mosque was built and until it was desecrated,
no factual basis has been furnished. This is not merely a
matter of details or evidence. A plea of adverse
possession seeks to defeat the rights of the true owner
and the law is not readily accepting of such a case
unless a clear and cogent basis has been made out in
the pleadings and established in the evidence.
xx xx xx
752. In Supdt. and Remembrance of Legal Affairs, West
Bengal v. Anil Kumar Bhunja, (1979) 4 SCC 274, Justice
R S Sarkaria, speaking for a three judge Bench of this
Court noted that the concept of possession is
“polymorphous. embodying both a right (the right to
enjoy) and a fact (the real intention). The learned judge
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held:
“13. “It is impossible to work out a completely
logical and precise definition of “possession”
uniformly applicable to all situations in the
contexts of all statutes. Dias and Hughes in their
book on Jurisprudence say that if a topic ever
suffered from too much theorising it is that of
“possession”. Much of this difficulty and
confusion is (as pointed out in Salmond’s
Jurisprudence, 12th Edn., 1966) caused by the
fact that possession is not purely a legal
concept. “Possession”, implies a right and a
fact; the right to enjoy annexed to the right of
property and the fact of the real intention. It
involves power of control and intent to control .
(See Dias and Hughes, ibid.).”
These observations were made in the context of
possession in Section 29(b) of the Arms Act 1959.
In P Lakshmi Reddy v. L Lakshmi Reddy, 1957 SCR 195,
Justice Jagannadhadas, speaking for a three judge
Bench of this Court dwelt on the “classical requirement”
of adverse possession:
“4. Now, the ordinary classical requirement of
adverse possession is that it should be nec vi
nec clam nec precario. (See Secretary of State
for India v. Debendra Lal Khan [(1933) LR 61 IA
78, 82] ). The possession required must be
adequate in continuity, in publicity and in extent
to show that it is possession adverse to the
competitor.”
The court cited the following extract from U N Mitra’s
“Tagore Law Lectures on the Law of Limitation and
Prescription”:
“7…An adverse holding is an actual and
exclusive appropriation of land commenced and
continued under a claim of right, either under
an openly avowed claim, or under a constructive
claim (arising from the acts and circumstances
attending the appropriation), to hold the land
against him (sic) who was in possession. (Angell,
Sections 390 and 398). It is the intention to
claim adversely accompanied by such an
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invasion of the rights of the opposite party as
gives him a cause of action which constitutes
adverse possession.” (6th Edition, Vol. I, Lecture
VI, at page 159)
This Court held:
“7…Consonant with this principle the
commencement of adverse possession, in
favour of a person implies that the person is in
actual possession, at the time, with a notorious
hostile claim of exclusive title, to repel which,
the true owner would then be in a position to
maintain an action. It would follow that
whatever may be the animus or intention of a
person wanting to acquire title by adverse
possession his adverse possession cannot
commence until he obtains actual possession
with the requisite animus.”
In Karnataka Board of Wakf v. Government of India,
(2004) 10 SCC 779, Justice S Rajendra Babu, speaking
for a two judge Bench held that:
“11…Physical fact of exclusive possession and
the animus possidendi to hold as owner in
exclusion to the actual owner are the most
important factors that are to be accounted in
cases of this nature. Plea of adverse possession
is not a pure question of law but a blended one
of fact and law. 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.”
The ingredients must be set up in the pleadings and
proved in evidence. There can be no proof sans
pleadings and pleadings without evidence will not
establish a case in law.
In Annakili v. A Vedanayagam, (2007) 14 SCC 308, this
Court emphasized that mere possession of land would
not ripen into a possessory title. The possessor must
have animus possidendi and hold the land adverse to
the title of the true owner. Moreover, he must continue
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in that capacity for the period prescribed under the
Limitation Act.”
16. In the present case, the defendants have not admitted the vesting
of the suit property with the Managing Officer and the factum of its
transfer in favour of the plaintiff. The defendants have denied the
title not only of the Managing Officer but also of the plaintiff. The
plea of the defendants is one of continuous possession but there is
no plea that such possession was hostile to the true owner of the
suit property. The evidence of the defendants is that of continuous
possession. Some of the receipts pertain to 1963 but possession
since November, 1963 till the filing of the suit will not ripe into title
as the defendants never admitted the plaintiff-appellant to be
owner or that the land ever vested with the Managing Officer. In
view of the judgments referred to above, we find that the findings
recorded by the High Court that the defendants have perfected
their title by adverse possession are not legally sustainable.
Consequently, the judgment and decree passed by the High Court
is set aside and the suit is decreed. The appeal is allowed.
………………………………………J.
(L. NAGESWARA RAO)
………………………………………J.
(HEMANT GUPTA)
NEW DELHI;
JANUARY 15, 2020.
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