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CASE NO.:

Appeal (civil) 7062 of 2000

PETITIONER:

P.T. Munichikkanna Reddy & Ors

RESPONDENT:

Revamma and Ors

DATE OF JUDGMENT: 24/04/2007

BENCH:

S.B. Sinha & Markandey Katju

JUDGMENT:

J U D G M E N T

S.B. SINHA, J :

BACKGROUND FACTS

One Thippaiah was the owner of 5 acre 23 guntas of land having been

recorded in Survey No. 153/1 of Chikkabanavara Village. Nanjapa,

adoptive father of Respondent No. 1 purchased a portion thereof measuring

1 acre 21 guntas on 11.09.1933. By reason of two different sale deeds, dated

11.04.1934 and 5.07.1936, the appellants herein purchased 2 acre 15 guntas

and 3 acre 8 guntas of land respectively, out of the said plot. Despite the

fact that Nanjapa purchased a portion of the said plot, the appellants

allegedly took over possession of the entire 5 acre 23 guntas of land after the

aforementioned purchases. However, when allegedly their possession was

sought to be disturbed by the respondent in the year 1988, they filed a suit in

the court of Additional City Civil Judge, Bangalore which was marked as

O.S. No. 287 of 1989. In the said suit, they clamed title on the basis of

adverse possession stating:

"\005The plaintiffs submit that in any event

the plaintiffs have perfected their title by adverse

possession as the plaintiffs have been in open,

continuous uninterrupted and hostile possession of

the plaint schedule land, adversely to the interest

of any other person including the defendant for the

past over fifty years exercising absolute rights of

ownership in respect of the plaint schedule land\005"

Defendants \026 Respondents in their written statement denied and

disputed the aforementioned assertion of the plaintiffs and pleaded their own

right, title and interest as also possession in or over the said 1 acre 21 guntas

of land. The learned Trial Judge decreed the suit inter alia holding that the

plaintiffs \026 appellants have acquired title by adverse possession as they have

been in possession of the lands in question for a period of more than 50

years. On an appeal having been preferred there against by the respondents

before the High Court, the said judgment of the Trial Court was reversed

holding:

(i) "\005The important averments of adverse

possession are two fold. One is to recognize

the title of the person against whom adverse

possession is claimed. Another is to enjoy the

property adverse to the title holder's interest

after making him known that such enjoyment is

against his own interest. These two averments

are basically absent in this case both in the

pleadings as well as in the evidence\005"

(ii) "The finding of the Court below that the

possession of the plaintiffs' become adverse to

the defendants between 1934-1936 is again an

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error apparent on the face of the record. As it is

now clarified before me by the learned counsel

for the appellants that the plaintiffs' claim in

respect of the other land of the defendants is

based on the subsequent sale deed dated

5.7.1936.

It is settled law that mere possession even if it

is true for any number of years will not cloth

the person in enjoyment with the title by

adverse possession. As indicated supra, the

important ingredients of adverse possession

should have been satisfied."

SUBMISSIONS

Mr. P. Krishnamoorthy, learned senior counsel appearing on behalf of

the appellants, submitted that the High Court committed a manifest error in

arriving at the aforementioned conclusion as it failed to take into

consideration the principle that acknowledgement of the owner's title was

not sine qua non for claiming title by prescription. Reliance in this behalf

has been placed on Secy. of State v. Debendra Lal Khan [AIR 1934 PC 23]

and State of West Bengal v. The Dalhousie Institute Society [AIR 1970 SC

1798].

The learned counsel appearing on behalf of the respondents, on the

other hand, supported the impugned judgment.

CHARACTERIZING ADVERSE POSSESSION

Adverse possession in one sense is based on the theory or

presumption that the owner has abandoned the property to the adverse

possessoror on the acquiescence of the owner to the hostile acts and claims

of the person in possession. It follows that sound qualities of a typical

adverse possession lie in it being open, continuous and hostile. [See

Downing v. Bird, 100 So. 2d 57 (Fla. 1958), Arkansas Commemorative

Commission v. City of Little Rock, 227 Ark. 1085, 303 S.W.2d 569 (1957);

Monnot v. Murphy, 207 N.Y. 240, 100 N.E. 742 (1913); City of Rock

Springs v. Sturm, 39 Wyo. 494, 273 P. 908, 97 A.L.R. 1 (1929).]

Efficacy of adverse possession law in most jurisdictions depend on

strong limitation statutes by operation of which right to access the court

expires through effluxion of time. As against rights of the paper-owner, in

the context of adverse possession, there evolves a set of competing rights in

favour of the adverse possessor who has, for a long period of time, cared for

the land, developed it, as against the owner of the property who has ignored

the property. Modern statutes of limitation operate, as a rule, not only to cut

off one's right to bring an action for the recovery of property that has been in

the adverse possession of another for a specified time, but also to vest the

possessor with title. The intention of such statutes is not to punish one who

neglects to assert rights, but to protect those who have maintained the

possession of property for the time specified by the statute under claim of

right or color of title. (See American Jurisprudence, Vol. 3, 2d, Page 81). It

is important to keep in mind while studying the American notion of

Adverse Possession, especially in the backdrop of Limitation Statutes,

that the intention to dispossess can not be given a complete go by.

Simple application of Limitation shall not be enough by itself for the

success of an adverse possession claim.

To understand the true nature of adverse possession, Fairweather v

St Marylebone Property Co [1962] 2 WLR 1020, [1962] 2 All ER 288

can be considered where House of Lords referring to Taylor v. Twinberrow

[1930] 2 K.B. 16, termed adverse possession as a negative and

consequential right effected only because somebody else's positive right

to access the court is barred by operation of law:

"In my opinion this principle has been settled law

since the date of that decision. It formed the basis

of the later decision of the Divisional Count in

Taylor v. Twinberrow [1930] 2 K.B. 16, in which

it was most clearly explained by Scrutton, L.J.

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that it was a misunderstanding of the legal effect

of 12 years adverse possession under the

Limitation Acts to treat it as if it gave a title

whereas its effect is " merely negative " and,

where the possession had been against a tenant,

its only operation was to bar his right to claim

against the man in possession (see loc. cit. p. 23).

I think that this statement needs only one

qualification: a squatter does in the end get a title

by his possession and the indirect operation of

the Act and he can convey a fee simple.

If this principle is applied, as it must be, to

the Appellant's situation, it appears that the

adverse possession completed in 1932 against the

lessee of No. 315 did not transfer to him either

the lessee's' term or his rights against or has

obligations to the landlord who held the

reversion. The appellant claims to be entitled to

keep the landlord at bay until the expiration of

the term by effluxion of time in 1992: but, if he

is, it cannot be because he is the transferee or

holder of the term which was granted to the

lessee. He is in possession by his own right, so

far as it is a right: and it is a right so far as the

statutes of limitation which govern the matter

prescribe both when the rights to dispossess him

are to be treated as accruing and when, having

accrued, they are thereafter to be treated as

barred. In other words, a squatter has as much

protection as but no more protection than the

statutes allow: but he has not the title or estate of

the owner or owners whom he has dispossessed

nor has he in any relevant sense an estate

"commensurate with" the estate of the

dispossessed. All that this misleading phrase can

mean is that, since his possession only defeats the

rights of those to whom it has been adverse, there

may be rights not prescribed against, such, for

instance, as equitable easements, which axe no

less enforceable against him in respect of the

land than they would have been against the

owners he has dispossessed."

Also see Privy Council's decision in Chung Ping Kwan and Others v.

Lam Island Development Company Limited (Hong Kong) [(1997) AC 38] in

this regard.

Therefore, to assess a claim of adverse possession, two-pronged

enquiry is required:

1. Application of limitation provision thereby jurisprudentially

"willful neglect" element on part of the owner established.

Successful application in this regard distances the title of the land

from the paper-owner.

2. Specific Positive intention to dispossess on the part of the

adverse possessor effectively shifts the title already distanced

from the paper owner, to the adverse possessor. Right thereby

accrues in favour of adverse possessor as intent to dispossess is

an express statement of urgency and intention in the upkeep of

the property.

It is interesting to see the development of adverse possession law in

the backdrop of the status of Right to Property in the 21st Century. The

aspect of stronger Property Rights Regime in general, coupled with efficient

legal regimes furthering the Rule of Law argument, has redefined the

thresholds in adverse possession law not just in India but also by the

Strasbourg Court. Growth of Human Rights jurisprudence in recent times

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has also palpably affected the developments in this regard. .

NEW CONSIDERATION IN ADVERSE POSSESSION LAW

In that context it is relevant to refer to JA Pye (Oxford) Ltd v. United

Kingdom [2005] 49 ERG 90, [2005] ECHR 921 wherein the European Court

of Human Rights while referring to the Court of Appeal judgment

([2001]EWCA Civ 117, [2001]Ch 804) made the following reference:

"Lord Justice Keene took as his starting point that

limitation periods were in principle not incompatible

with the Convention and that the process whereby a

person would be barred from enforcing rights by the

passage of time was clearly acknowledged by the

Convention (Convention for the Protection of

Human Rights and Fundamental Freedoms). This

position obtained, in his view, even though

limitation periods both limited the right of access to

the courts and in some circumstances had the effect

of depriving persons of property rights, whether real

or personal, or of damages: there was thus nothing

inherently incompatible as between the 1980 Act

and Article 1 of the Protocol."

This brings us to the issue of mental element in adverse possession

cases-intention.

1. Positive Intention

The aspect of positive intention is weakened in this case by the sale

deeds dated 11.04.1934 and 5.07.1936. Intention is a mental element which

is proved and disproved through positive acts. Existence of some events can

go a long way to weaken the presumption of intention to dispossess which

might have painstakingly grown out of long possession which otherwise

would have sufficed in a standard adverse possession case.. The fact of

possession is important in more than one ways: firstly, due compliance on

this count attracts limitation act and it also assists the court to unearth as the

intention to dispossess.

At this juncture, it would be in the fitness of circumstances to discuss

intention to dispossess vis-`-vis intention to possess. This distinction can be

marked very distinctively in the present circumstances.

Importantly, intention to possess can not be substituted for intention to

dispossess which is essential to prove adverse possession. The factum of

possession in the instant case only goes on to objectively indicate intention

to possess the land. As also has been noted by the High Court, if the

appellant has purchased the land without the knowledge of earlier sale, then

in that case the intention element is not of the variety and degree which is

required for adverse possession to materialize.

The High Court observed:

"It is seen from the pleadings as well in evidence

that the plaintiff came to know about the right of

the defendants', only when disturbances were

sought to be made to his possession."

In similar circumstances, in the case of Thakur Kishan Singh (dead) v.

Arvind Kumar [(1994) 6 SCC 591] this court held:

"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

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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 present case is one of the few ones where even an unusually long

undisturbed possession does not go on to prove the intention of the adverse

possessor. This is a rare circumstance, which Clarke LJ in Lambeth London

Borough Council v Blackburn (2001) 82 P & CR 494, 504 refers to:

"I would not for my part think it appropriate

to strain to hold that a trespasser who had

established factual possession of the property for the

necessary 12 years did not have the animus

possidendi identified in the cases. I express that

view for two reasons. The first is that the

requirement that there be a sufficient manifestation

of the intention provides protection for landowners

and the second is that once it is held that the

trespasser has factual possession it will very often be

the case that he can establish the manifested

intention. Indeed it is difficult to find a case in

which there has been a clear finding of factual

possession in which the claim to adverse possession

has failed for lack of intention."

On intention, The Powell v. Macfarlane (1977) 38 P & CR (Property,

Planning & Compensation Reports) 452 \026 472 is quite illustrative and

categorical, holding in the following terms:

"If the law is to attribute possession of land to a

person who can establish no paper title to

possession, he must be shown to have both factual

possession and the requisite intention to possess

('animus possidendi')."

\005.

If his acts are open to more than one interpretation

and he has not made it perfectly plain to the world at

large by his actions or words that he has intended to

exclude the owner as best he can, the courts will

treat him as not having had the requisite animus

possidendi and consequently as not having

dispossessed the owner.

\005

In my judgment it is consistent with principle as

well as authority that a person who originally

entered another's land as a trespasser, but later seeks

to show that he has dispossessed the owner, should

be required to adduce compelling evidence that he

had the requisite animus possidendi in any case

where his use of the land was equivocal, in the sense

that it did not necessarily, by itself, betoken an

intention on his part to claim the land as his own and

exclude the true owner.

\005

What is really meant, in my judgment, is that the

animus possidendi involves the intention, in one's

own name and on one's own behalf, to exclude the

world at large, including the owner with the paper

title if he be not himself the possessor, so far as is

reasonably practicable and so far as the processes of

the law will allow."

Thus, there must be intention to dispossess. And it needs to be open

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and hostile enough to bring the same to the knowledge and plaintiff has an

opportunity to object. After all adverse possession right is not a substantive

right but a result of the waiving (willful) or omission (negligent or

otherwise) of right to defend or care for the integrity of property on the part

of the paper owner of the land. Adverse possession statutes, like other

statutes of limitation, rest on a public policy that do not promote litigation

and aims at the repose of conditions that the parties have suffered to remain

unquestioned long enough to indicate their acquiescence.

While dealing with the aspect of intention in the Adverse possession

law, it is important to understand its nuances from varied angles.

Intention implies knowledge on the part of adverse possessor. The

case of Saroop Singh v. Banto and Others [(2005) 8 SCC 330] in that

context held:

"29. In terms of Article 65 the starting point

of limitation does not commence from the date

when the right of ownership arises to the plaintiff

but commences from the date the defendants

possession becomes adverse. (See Vasantiben

Prahladji Nayak v. Somnath Muljibhai Nayak)

30. Animus possidendi is one of the

ingredients of adverse possession. Unless the

person possessing the land has a requisite animus

the period for prescription does not commence. As

in the instant case, the appellant categorically

states that his possession is not adverse as that of

true owner, the logical corollary is that he did not

have the requisite animus. (See Mohd. Mohd. Ali v.

Jagadish Kalita, SCC para 21.)"

A peaceful, open and continuous possession as engraved in the maxim

nec vi, nec clam, nec precario has been noticed by this Court in Karnataka

Board of Wakf v. Government of India and Others [(2004) 10 SCC 779] in

the following terms:

"\005Physical 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. 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\005"

It is important to appreciate the question of intention as it would have

appeared to the paper-owner. The issue is that intention of the adverse user

gets communicated to the paper owner of the property. This is where the law

gives importance to hostility and openness as pertinent qualities of manner

of possession. It follows that the possession of the adverse possessor must be

hostile enough to give rise to a reasonable notice and opportunity to the

paper owner.

In Narne Rama Murthy v. Ravula Somasundaram and Others [(2005)

6 SCC 614], this Court held:

"However, in cases where the question of

limitation is a mixed question of fact and law and

the suit does not appear to be barred by limitation

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on the face of it, then the facts necessary to prove

limitation must be pleaded, an issue raised and

then proved. In this case the question of limitation

is intricately linked with the question whether the

agreement to sell was entered into on behalf of all

and whether possession was on behalf of all. It is

also linked with the plea of adverse possession.

Once on facts it has been found that the purchase

was on behalf of all and that the possession was on

behalf of all, then, in the absence of any open,

hostile and overt act, there can be no adverse

possession and the suit would also not be barred by

limitation. The only hostile act which could be

shown was the advertisement issued in 1989. The

suit filed almost immediately thereafter."

The test is, as has been held in the case of R. v. Oxfordshire County

Council and Others, Ex Parte Sunningwell Parish Council [1999] 3 ALL ER

385; [1999] 3 WLR 160:

Bright v. Walker (1834) 1 Cr. M. & R. 211, 219,

"openly and in the manner that a person rightfully

entitled would have used it. . ." The presumption

arises, as Fry J. said of prescription generally in

Dalton v. Angus (1881) 6 App.Cas. 740, 773, from

acquiescence.

The case concerned interpretation of section 22(1) of the Commons

Registration Act 1965. Section 22(1) defined "town or village green" as

including

" \005 land \005 on which the inhabitants of any

locality have indulged in [lawful] sports and

pastimes as of right for not less than 20 years."

It was observed that the inhabitants' use of the land for sports and

pastimes did not constitute the use "as of right". The belief that they had the

right to do so was found to be lacking. The House held that they did not have

to have a personal belief in their right to use the land. The court observed:

"the words 'as of right' import the absence of

any of the three characteristics of compulsion,

secrecy or licence\027 'nec vi, nec clam, nec precario',

phraseology borrowed from the law of easements."

Later in the case of Beresford, R (on the application of) v. City of

Sunderland [2003] 3 WLR 1306, [2004] 1 All ER 160 same test was referred

to.

Thus the test of nec vi, nec clam, nec precario i.e., "not by force, nor

stealth, nor the license of the owner" has been an established notion in law

relating to the whole range of similarly situated concepts such as easement,

prescription, public dedication, limitation and adverse possession.

In Karnataka Wakf Board (Supra), the law was stated, thus:

"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 altered when another person takes

possession of the property and asserts a right over it.

Adverse possession is a hostile possession by clearly

asserting hostile title in denial of the title of true

owner. It is a well- settled principle that a party

claiming adverse possession must prove that his

possession is 'nec vi, nec clam, nec precario', that is,

peaceful, open and continuous. The possession must

be adequate in continuity, in publicity and in extent

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to show that their possession is adverse to the true

owner. It must start with a wrongful disposition of

the rightful owner and be actual, visible, exclusive,

hostile and continued over the statutory period. (See

: S M Karim v. Bibi Sakinal AIR 1964 SC 1254,

Parsinni v. Sukhi ( 1993 ) 4 SCC 375 and D N

Venkatarayappa v. State of Karnataka (1997) 7 SCC

567.) 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. A person

pleading adverse possession has no equities in his

favour. Since he is trying to defeat the rights of true

owner, it is for him to clearly plead and establish all

facts necessary to establish his adverse possession."

2. Inquiry into the particulars of Adverse Possession

Inquiry into the starting point of adverse possession i.e. dates as to

when the paper owner got dispossessed is an important aspect to be

considered. In the instant case the starting point of adverse possession and

Other facts such as the manner in which the possession operationalized,

nature of possession: whether open, continuous, uninterrupted or hostile

possession - have not been disclosed. An observation has been made in this

regard in S.M. Karim v. Mst. Bibi Sakina [AIR 1964 SC 1254]:

"Adverse possession must be adequate in

continuity, in publicity and extent and a plea is

required at the least to show when possession

becomes adverse so that the starting point of

limitation against the party affected can be found.

There is no evidence here when possession became

adverse, if it at all did, and a mere suggestion in

the relief clause that there was an uninterrupted

possession for "several 12 years" or that the

plaintiff had acquired "an absolute title" was not

enough to raise such a plea. Long possession is not

necessarily adverse possession and the prayer

clause is not a substitute for a plea."

Also mention as to the real owner of the property must be specifically

made in an adverse possession claim.

In Karnataka Wakf Board (Supra), it is stated:

"Plaintiff, filing a title suit should be very clear

about the origin of title over the property. He must

specifically plead it. In P Periasami v. P

Periathambi ( 1995 ) 6 SCC 523 this Court ruled

that - "Whenever the plea of adverse possession is

projected, inherent in the plea is that someone else

was the owner of the property." The pleas on title

and adverse possession are mutually inconsistent

and the latter does not begin to operate until the

former is renounced. Dealing with Mohan Lal v.

Mirza Abdul Gaffar ( 1996 ) 1 SCC 639 that is

similar to the case in hand, this Court held:

"As regards the first plea, it is inconsistent with the

second plea. Having come into possession under

the agreement, he must disclaim his right there

under and plead and prove assertion of his

independent hostile adverse possession to the

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knowledge of the transferor or his successor in title

or interest and that the latter had acquiesced to his

illegal possession during the entire period of 12

years, i.e., up to completing the period his title by

prescription nec vi, nec clam, nec precario. Since

the appellant's claim is founded on Section 53-A, it

goes without saying that he admits by implication

that he came into possession of land lawfully under

the agreement and continued to remain in

possession till date of the suit. Thereby the plea of

adverse possession is not available to the

appellant.""

3. New Paradigm to Limitation Act

The law in this behalf has undergone a change. In terms of Articles

142 and 144 of the Limitation Act, 1908, the burden of proof was on the

plaintiff to show within 12 years from the date of institution of the suit that

he had title and possession of the land, whereas in terms of Articles 64 and

65 of the Limitation Act, 1963, the legal position has underwent complete

change insofar as the onus is concerned: once a party proves its title, the

onus of proof would be on the other party to prove claims of title by adverse

possession. The ingredients of adverse possession have succinctly been

stated by this Court in S.M. Karim v. Mst. Bibi Sakina [AIR 1964 SC 1254]

in the following terms:

"\005Adverse possession must be adequate in

continuity, in publicity and extent and a plea is

required at the least to show when possession

becomes adverse so that the starting point of

limitation against the party affected can be

found\005"

[See also M. Durai v. Madhu and Others 2007 (2) SCALE 309]

The aforementioned principle has been reiterated by this Court in

Saroop Singh v. Banto and Others [(2005) 8 SCC 330] stating:

"29. In terms of Article 65 the starting point

of limitation does not commence from the date

when the right of ownership arises to the plaintiff

but commences from the date the defendants

possession becomes adverse. (See Vasantiben

Prahladji Nayak v. Somnath Muljibhai Nayak)

30. Animus possidendi is one of the

ingredients of adverse possession. Unless the

person possessing the land has a requisite animus

the period for prescription does not commence. As

in the instant case, the appellant categorically

states that his possession is not adverse as that of

true owner, the logical corollary is that he did not

have the requisite animus. (See Mohd. Mohd. Ali v.

Jagadish Kalita, SCC para 21.)"

In Mohammadbhai Kasambhai Sheikh and Others v. Abdulla

Kasambhai Sheikh [(2004) 13 SCC 385], this Court held:

"\005But as has been held in Mahomedally

Tyebally v. Safiabai the heirs of Mohammedans

(which the parties before us are) succeed to the

estate in specific shares as tenants-in-common and

a suit by an heir for his/her share was governed, as

regards immovable property, by Article 144 of the

Limitation Act, 1908. Article 144 of the Limitation

Act, 1908 has been materially re-enacted as Article

65 of the Limitation Act, 1963 and provides that

the suit for possession of immovable property or

any interest therein based on title must be filed

within a period of 12 years from the date when the

possession of the defendant becomes adverse to

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the plaintiff. Therefore, unless the defendant raises

the defence of adverse possession to a claim for a

share by an heir to ancestral property, he cannot

also raise an issue relating to the limitation of the

plaintiffs claim\005"

The question has been considered at some length recently in T.

Anjanappa and Others v. Somalingappa and Another [(2006) 7 SCC 570],

wherein it was opined :

"The High Court has erred in holding that

even if the defendants claim adverse possession,

they do not have to prove who is the true owner

and even if they had believed that the Government

was the true owner and not the plaintiffs, the same

was inconsequential. Obviously, the requirements

of proving adverse possession have not been

established. If the defendants are not sure who is

the true owner the question of their being in hostile

possession and the question of denying title of the

true owner do not arise. Above being the position

the High Court's judgment is clearly

unsustainable\005"

[See also Des Raj and Ors. v. Bhagat Ram (Dead) By LRs. and Ors.,

2007 (3) SCALE 371; Govindammal v. R. Perumal Chettiar & Ors., JT 2006

(10) SC 121 : (2006) 11 SCC 600]

CONTENTIONS OF PARTIES

The decision of the Judicial Committee in Debendra Lal Khan (supra),

whereupon reliance has been placed by Mr. Krishnamoorthy, does not

militate against the aforementioned propositions of law. The question which

arose for consideration therein was as to whether the plaintiff had acquired

right or title to the fisheries by adverse possession in the portion of river

Cossye. In the aforementioned situation, it was held that the Limitation Act

is indulgent to the Crown in one respect only, namely, in requiring a much

longer period of adverse possession than in the case of a subject; otherwise

there is no discrimination between the Crown and the subject as regards the

requisites of adverse possession. The said decision is not of much assistance

in this case.

In The Dalhousie Institute Society (supra), this Court found as of fact

that the respondents were in open, continuous and uninterrupted possession

and enjoyment of site for over 60 years. It was in that situation, the title of

the defendant, in that behalf, was accepted.

RIGHT TO PROPERTY AS HUMAN RIGHT

There is another aspect of the matter, which cannot be lost sight of.

The right of property is now considered to be not only a constitutional or

statutory right but also a human right.

Declaration of the Rights of Man and of the Citizen, 1789 enunciates

right to property under Article 17 :

"since the right to property is inviolable and

sacred, no-one may be deprived thereof, unless

public necessity, legally ascertained, obviously

requires it and just and prior indemnity has

been paid".

Moreover, Universal Declaration of Human Rights, 1948 under

section 17(i) and 17(ii) also recognizes right to property :

"17 (i) Everyone has the right to own property

alone as well as in association with others.

(ii) No-one shall be arbitrarily deprived of his

property."

Human rights have been historically considered in the realm of

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individual rights such as, right to health, right to livelihood, right to shelter

and employment etc. but now human rights are gaining a multifaceted

dimension. Right to property is also considered very much a part of the new

dimension. Therefore, even claim of adverse possession has to be read in

that context. The activist approach of the English Courts is quite visible from

the judgement of Beaulane Properties Ltd. v. Palmer [2005 (3) WLR 554 :

2005 EWHC 817 (Ch.)] and JA Pye (Oxford) Ltd v. United Kingdom [2005]

ECHR 921 [2005] 49 ERG 90, [2005] ECHR 921], The court herein tried to

read the Human Rights position in the context of adverse possession. But

what is commendable is that the dimensions of human rights has widened so

much that now property dispute issues are also being raised within the

contours of human rights.

With the expanding jurisprudence of the European Court of Human

Rights, the Court has taken an unkind view to the concept of adverse

possession in the recent judgment of J.A. Pye (Oxford) Ltd v. the United

Kingdom [2005] ECHR 921, which concerned the loss of ownership of land

by virtue of adverse possession.

In the instant case the applicant company was the registered owner of

a plot of 23 hectares of agricultural land. The owners of a property adjacent

to the land, Mr. and Mrs. Graham ("the Grahams") occupied the land under

a grazing agreement. After a brief exchange of documents in December

1983 a chartered surveyor acting for the applicants wrote to the Grahams

noting that the grazing agreement was about to expire and requiring them to

vacate the land.

In essence, from September 1984 onwards until 1999 the Grahams

continued to use the whole of the disputed land for farming without the

permission of the applicants.

In 1997, Mr Graham moved the Local Land Registry against the

applicant on the ground that he had obtained title by adverse possession. The

applicant companies responded to the motion and importantly also issued

further proceedings seeking possession of the disputed land.

The Grahams challenged the applicant companies' claims under the

Limitation Act 1980 ("the 1980 Act") which provides that a person cannot

bring an action to recover any land after the expiration of 12 years of

adverse possession by another. They also relied on the Land Registration

Act 1925, which applied at the relevant time and which provided that, after

the expiry of the 12-year period, the registered proprietor was deemed to

hold the land in trust for the squatter.

It is important to quote here the judgment pronounced in favour of the

Grahams ([2000]Ch 676). The court held in favour of the Grahams but went

on to observe the irony in law of adverse possession. According to the court,

law which provides to oust an owner on the basis of inaction of 12 years is

"illogical and disproportionate". The effect of such law would "seem

draconian to the owner" and "a windfall for the squatter". The fact that just

because "the owner had taken no step to evict a squatter for 12 years, the

owner should lose 25 hectares of land to the squatter with no compensation

whatsoever" would be disproportionate.

The applicant companies appealed and the Court of Appeal reversed

the High Court decision. The Grahams then appealed to the House of Lords,

which, allowed their appeal and restored the order of the High Court. In J A

Pye (Oxford) Ltd & Ors v Graham & Anor [2002] 3 All ER 865 House of

Lords observed that the Grahams had possession of the land in the ordinary

sense of the word, and therefore the applicant companies had been

dispossessed of it within the meaning of the 1980 Act. There was no

inconsistency between a squatter being willing to pay the paper owner if

asked and his being in possession in the meantime. It will be pertinent to

note in this regard Lord Bingham (agreeing with Lord Browne-Wilkinson)

in the course of his judgment:

"[The Grahams] sought rights to graze or cut grass on

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the land after the summer of 1984, and were quite

prepared to pay. When Pye failed to respond they did

what any other farmer in their position would have

done: they continued to farm the land. They were not

at fault. But the result of Pye's inaction was that they

enjoyed the full use of the land without payment for

12 years. As if that were not gain enough, they are

then rewarded by obtaining title to this considerable

area of valuable land without any obligation to

compensate the former owner in any way at all. In the

case of unregistered land, and in the days before

registration became the norm, such a result could no

doubt be justified as avoiding protracted uncertainty

where the title to land lay. But where land is

registered it is difficult to see any justification for a

legal rule which compels such an apparently unjust

result, and even harder to see why the party gaining

title should not be required to pay some compensation

at least to the party losing it. It is reassuring to learn

that the Land Registration Act 2002 has addressed the

risk that a registered owner may lose his title through

inadvertence. But the main provisions of that Act have

not yet been brought into effect, and even if they had

it would not assist Pye, whose title had been lost

before the passing of the Act. While I am satisfied that

the appeal must be allowed for the reasons given by

my noble and learned friend, this is a conclusion

which I (like the judge [Neuberger J]...) 'arrive at with

no enthusiasm'."

Thereafter the applicants moved the European Commission of Human

Rights (ECHR) alleging that the United Kingdom law on adverse

possession, by which they lost land to a neighbour, operated in violation of

Article 1 of Protocol No. 1 to Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention").

It was contended by the applicants that they had been deprived of their

land by the operation of the domestic law on adverse possession which is in

contravention with Article 1 of Protocol No. 1 to Convention for the

Protection of Human Rights and Fundamental Freedoms ("the Convention"),

which reads as under:

"Every natural or legal person is entitled to the

peaceful enjoyment of his possessions. No one

shall be deprived of his possessions except in the

public interest and subject to the conditions

provided for by law and by the general principles

of international law.

The preceding provisions shall not, however, in

any way impair the right of a State to enforce such

laws as it deems necessary to control the use of

property in accordance with the general interest or

to secure the payment of taxes or other

contributions or penalties."

The European Council of Human Rights importantly laid down three

pronged test to judge the interference of government with the right of

"peaceful enjoyment of property". While referring to Beyeler v. Italy [GC],

no. 33202/96, '' 108-14, ECHR 2000-I, it was held that the "interference"

should comply with the principle of lawfulness pursue a legitimate aim

(public interest) by means reasonably proportionate to the aim sought to be

realized.

In fine the court observed:

"The question nevertheless remains whether, even

having regard to the lack of care and inadvertence

on the part of the applicants and their advisers, the

deprivation of their title to the registered land and

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the transfer of beneficial ownership to those in

unauthorised possession struck a fair balance with

any legitimate public interest served.

In these circumstances, the Court concludes that

the application of the provisions of the 1925 and

1980 Acts to deprive the applicant companies of

their title to the registered land imposed on them

an individual and excessive burden and upset the

fair balance between the demands of the public

interest on the one hand and the applicants' right to

the peaceful enjoyment of their possessions on the

other.

There has therefore been a violation of Article 1 of

Protocol No. 1."

The question of the application of Article 41 was referred for the

Grand Chamber Hearing of the ECHR. This case sets the field of Adverse

Possession and its interface with the right to peaceful enjoyment in all its

complexity.

Therefore it will have to be kept in mind the Courts around the world

are taking an unkind view toward statutes of limitation overriding property

rights.

THE PRESENT CASE

It is to be borne in mind that the respondent had already purchased 1

acre 21 guntas out of the 5 acres 25 guntas under a duly registered deed

dated 1.9.1933. Appellant bought the entire chunk of 5 acres 23 guntas

subsequent to the respondent's transaction. The validity of such sale is not

the question in the instant case but the transaction relating to 1 acre 23

Guntas remains an important surrounding circumstance to assess the nature

of appellant's possession. The question is whether it is a case of mistaken

possession ignoramus of the previous sale or adverse possession having the

mental element in the requisite degree to dispossess. Also much depends on

the answer to the query regarding the starting point of adverse possession:

when can the possession be considered to have become adverse? In the facts

and circumstances of this case, the possession of appellant was effected

through the sale deeds, dated 11.04.1934 and 5.07.1936. Therefore, the

alleged fact of adverse possession bears a pronounced backdrop of 1933 sale

deed passing 1 acre 21 Guntas to the respondent. .

Are we to say that it is a sale with doubtful antecedents (1 acre 23

Guntas) sought to be perfected or completed through adverse possession?

But that aspect of the matter is not under consideration herein. As has

already been mentioned, adverse possession is a right which comes into play

not just because someone loses his right to reclaim the property out of

continuous and willful neglect but also on account of possessor's positive

intent to dispossess. Therefore it is important to take into account before

stripping somebody of his lawful title, whether there is an adverse possessor

worthy and exhibiting more urgent and genuine desire to dispossess and step

into the shoes of the paper-owner of the property. This test forms the basis

of decision in the instant case.

The argument for a more intrusive inquiry for adverse possession

must not be taken to be against the law of limitations. Limitation statutes as

statutes of repose have utility and convenience as their purpose.

Nevertheless, there has been change on this front as well which have been

noticed by us heretobefore.

For the reasons aforementioned, there is no merit in this appeal which

is dismissed accordingly with costs. Counsel's fee assessed at Rs. 25,000/-.