Leading case law on adverse possession

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 670 of 2003

Decided On: 30.07.2013

Appellants: Vinodkumar Balaprasadji Shukla, Sureshkumar Balaprasadji Shukla and Rameshkumar Balaprasadji Shukla
Vs.
Respondent: The State of Maharashtra, The Principal and The Nanded Waghala Municipal Corporation

Hon'ble Judges/Coram:A.B. Chaudhari, J.

Citation;2014 (1) MH L J 296 Bombay

Property - Adverse possession - Title - Lower Appellate Court threw entire burden on Appellants/Plaintiffs to prove that Respondents were not in adverse possession and dismissed Suit for possession of suit property that was filed by Appellants/Plaintiffs - Hence, this Second Appeal - Whether lower Appellate Court committed an error in ignoring material evidence that was discussed by trial Court showing that Appellants/Plaintiffs had established their title as well as possession over suit property and had been from day one protesting putting of fence by State Government and Industrial Training Institute - Held, lower Appellate Court had not at all adverted to voluminous evidence, oral as well as documentary, discussed by trial Court, but it suddenly jumped to conclusion that State Government acquired title by adverse possession - Except one line that State Government and Industrial Training Institute, were in adverse possession, being in possession continuously for more than twelve years, no other pleadings were set out nor any foundation in form of evidence was laid - Evidence led by Plaintiffs was almost unchallenged about protest when wire fencing was put, firstly by original owner and thereafter by Plaintiffs and further issuance of three notices to State Government and Industrial Training Institute, protesting act of making encroachment - Plaintiffs immediately filed Suit in within twelve years - Lower Appellate Court had even gone to extent of throwing burden about acquisition of suit land upon Appellants - Hence it was made out that ownership, title and possession was of Plaintiffs and encroachment made by Industrial Training Institute - Thus judgment made by lower Appellate Court was wholly wrong and illegal and could not be sustained - Second Appeal allowed.

Ratio Decidendi: 
"A person pleading adverse possession shall have no equities in his favour since he is trying to defeat rights of true owner and it is for him to clearly plead and establish all facts necessary to establish adverse possession."

1. The appellants are the original plaintiffs, who are challenging the Judgment and Decree passed by the Joint District Judge, Nanded on 09/06/2003 in R.C.A. No. 68 of 2001, by which the lower appellate Court allowed the Appeal preferred by the State of Maharashtra and the Principal, Industrial Training Institute, Nanded and dismissed the Suit for possession of the suit property that was filed by the present appellants/plaintiffs.

FACTS:

Balaprasadji Shukla, the father of the appellants/plaintiffs was the owner of Survey No. 74/2 situated at Vazirabad, Taluka and Nanded, a posh locality in the city of Nanded. Balaprasadji Shukla remained in possession of the said land till his death, but in October, 1978, the respondents encroached upon the suit land, which is adjoining open piece of land to the Industrial Training Institute, Nanded by erecting a wire fencing and thus took the area of the suit property inside the already acquired area by the State. Balaprasadji Shukla, during his life time, protested and wrote a letter dated 05/10/1978 to the respondents to remove the encroachment followed by legal notice U/s. 80 of the Code of Civil Procedure [For short, 'C.P.C.'] dated 04/04/1983, followed by another notice dated 24/04/1983 and followed by third notice U/s. 80 of C.P.C. dated 07/01/1986. Despite it, the defendants did not remove the encroachment, but continued to remain in occupation of the suit plot admeasuring 567.8 Sq. Meters owned and possessed by Balaprasadji Shukla. The plaintiffs then instituted a Suit namely Spl. Civil Suit No. 55 of 1986 for recovery of possession of 567.8 Sq. Meters out of Survey No. 74/2.

The defendants-the State of Maharashtra and the Principal, Industrial Training Institute, Nanded filed Written Statement and denied their encroachment stating that the wire fencing was erected by the Public Works Department in the year 1979 after taking measurement and they had not encroached. There was no question of making encroachment, though it was a fact that Balaprasadji Shukla was the owner. The acquisition of 18 Acres 10 gunthas land out of 19 Acres 15 gunthas owned by Balaprasadji Shukla was made. The remaining portion was also acquired by Award No. 144 dated 13/01/1356 Fasli and again there was acquisition of Survey No. 74/2 for construction of Mahatma Phule vegetable market vide Award dated 22/03/1982. The defendants have been in possession, open and peaceful, since 1957 and at any rate the defendant-State acquired title to the suit land by adverse possession. This was the defence in nut shell.

2. The trial Court framed as many as seven (7) issues and framed issue No. 3 relating to the adverse possession and answered the same against the defendants. The Suit was thus decreed in favour of the appellants/plaintiffs.

The defendants/respondents herein filed First Appeal before the District Judge, Nanded. The Joint District Judge, Nanded held that since the wire fencing was put by the defendants and they were in possession for more than twelve (12) years openly and uninterruptedly, they had projected their notorious possession and, therefore, they acquired title by adverse possession. The lower appellate Court also threw the entire burden on the appellants/plaintiffs to prove that the respondents were not in adverse possession. Finally, the lower appellate Court allowed the First Appeal and dismissed the Suit that was decreed by the trial Court. Hence, this Second Appeal.

3. In support of the Appeal, the learned counsel for the appellants made the following submission.

SUBMISSIONS:

4. [i] That, the lower appellate Court committed an error in dismissing the Suit and holding that the State acquired title by adverse possession, when even remotely there were no appropriate pleadings or evidence for raising the plea of adverse possession.

[ii] The defendants did not produce any evidence to show that the suit property was also the part of the acquired property, when the defendants themselves claim that out of 19 Acres of land, only 18 Acres was acquired and that the balance land was further acquired by virtue of the Award No. 144 dated 13/01/1356 Fasli, but they did not produce either any documentary evidence to that effect before the Court. The defendants did not file any evidence about the acquisition of property, at-least the suit property and, therefore, there is perversity on the part of the lower appellate Court in holding that the defendants are in adverse possession in violation of the Judgment of the Apex Court in the case of Santosh Hajari V/s. Purushottam Tiwari (deceased) by L.Rs. reported in MANU/SC/0091/2001 : (2001) 3 SCC 179, because the trial Court gave reasons based on oral and documentary evidence.

[iii] The lower appellate Court has thrown the burden of proof on the appellants/plaintiffs to prove that the defendants were not in adverse possession, which is wholly wrong and illegal. The lower appellate Court has casually written a finding of acquisition of title by adverse possession by the State.

5. Per contra, the learned A.G.P. for the respondent-State vehemently opposed the Appeal and submitted that no documentary evidence about the suit property was produced on record. There is ample evidence on record that the State of Maharashtra and the Principal, Industrial Training Institute, Nanded are in possession of the suit property for more than twelve (12) years openly and peacefully. The learned A.G.P., therefore, prayed for dismissal of the Second Appeal supporting by the impugned Judgment made by the lower appellate Court.

6. Mr. M.V. Deshpande, the learned counsel appeared for Nanded Waghala Municipal Corporation and submitted that the suit land is required for expansion of road. The learned counsel stated that this Court has allowed the Municipal Corporation, Nanded to be joined as party to this Appeal by Order dated 14/06/2010 and he supports the impugned Judgment of the lower appellate Court.

CONSIDERATION:

7. I have heard the learned counsel for the rival parties at length. I have read the impugned Judgments made by both the Courts. Before dealing with the merits of the matter, the following observations of the Apex Court are apt in the instant case. The Apex Court in the case of State of Haryana V/s. Mukesh Kumar & Ors. reported in MANU/SC/1147/2011 : AIR 2012 SC 559, stated thus in the following paragraphs:

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 authorized by law.

The theory of adverse possession is also perceived by the general public as a dishonest way to obtain title to property. Property right advocates argue that mistakes by landowners or negligence on their part should never transfer their property rights to a wrongdoer, who never paid valuable consideration for such an interest.

The Government itself may acquire land by adverse possession. Fairness dictates and commands that if the Government can acquire title to private land through adverse possession, it should be able to lose title under the same circumstances.

The concept of adverse possession was born in England around 1275 and was initially created to allow a person to claim right of "seisin" from his ancestry. Many felt that the original law that relied on "seisin" was difficult to establish, and around 1623 a statue of limitations was put into place that allowed for a person in possession of property for twenty years or more to acquire title to that property. This early English doctrine was designed to present legal disputes over property rights that were time consuming and costly. The doctrine was also created to prevent the waste of land by forcing owners to monitor their property or suffer the consequence of losing title.

The concept of adverse possession was subsequently adopted in the United States. The doctrine was especially important in early American periods to cure the growing number of title disputes. The American version mirrored the English law, which is illustrated by most States adopting a twenty-year statute of limitations for adverse possession claims. As America has developed to the present date, property rights have become increasingly more important and land has become limited. As a result, the time period to acquire land by adverse possession has been reduced in some States to as little as five years, while in others, it has remained as long as forty years. The United States has also changed the traditional doctrine by preventing the use of adverse possession against property held by a governmental entity.

During the colonial period, prior to the enactment of the Bill of Rights, property was frequently taken by States from private land owners without compensation. Initially, undeveloped tracts of land were the most common type of property acquired by the Government, as they were sought for the installation of public road. Under the colonial system it was though that benefits from the road would, in a newly opened country, always exceed the value of unimproved land.

The doctrine of adverse possession arose in an era where lands were vast particularly in the United States of America and documentation sparse in order to give quietus to the title to the possessor and prevent fanciful claims from erupting. The concept of adverse possession exist to cure potential or actual defects in real estate titles by putting a statute of limitation on possible litigation over ownership and possession. A landowner could be secure in title to his land; otherwise, long-lost heirs of any former owner, possessor or lien holder of centuries past could come forward with a legal claim on the property. Since independence of our country, we have witnessed registered documents of title and more proper, if not perfect, entries of title in the Government records. The situation having changed, the statute calls for a change.

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 adverse possession. Though we got this law of adverse possession from the British, it is important to note that these days English Courts are taking a very negative view towards the law of adverse possession.

We inherited this law of adverse possession from the British. The Parliament may consider abolishing the law of adverse possession or at least amending and making substantial changes in law in the larger public interest. The Government instrumentalities-including the police-in the instant case have attempted to possess land adversely. This, in our opinion, a testament to the absurdity of the law and a black mark upon the justice system's legitimacy. The Government should protest the property of a citizen-not steal it. And yet, as the law currently stands, they may do just that. If this law is to be retained, according to the wisdom of the Parliament, then at least the law must require those who adversely possess land to compensate title owners according to the prevalent market rate of the land or property in question. This alternative would provide some semblance of justice to those who have done nothing other than sitting on their rights for the statutory period, while allowing the adverse possessor to remain on property. While it may be indefensible to require all adverse possessors-some of whom may be poor-to pay market rates for the land they possess, perhaps some lesser amount would be realistic in most of the cases. The Parliament may either fix a set range of rates or to leave it to the judiciary with the option of choosing from within a set range of rates so as to tailor the compensation to the equities of a given case.

8. A similar situation is found in the instant case and adopting the law laid down by the Apex Court, I also find that it is high time that the law makers need to consider at least to abolish ' bad faith ' adverse possession. Be that as it may, I frame the following substantial questions of law in the instant Appeal.

	Substantial Questions of law	Answers
[i]	Whether the lower appellate Court committed an error by writing the Judgment in violation of the Judgment of the Supreme Court in the case of Santosh Hajari V/s. Purushottam Tiwari (deceased) by L.Rs. reported in (2001) 3 Supreme Court Cases-179?	In affirmative.
[ii]	Whether the lower appellate Court committed serious error of law in casually applying the law of adverse possession in the instant case in absence of any pleadings, evidence oral as well as documentary and in absence of even a semblance of evidence and applicability of the rule of adverse possession?	In affirmative.
[iii]	Whether the lower appellate Court committed an error in ignoring the material evidence that was discussed by the trial Court showing that the appellants/plaintiffs had established their title as well as possession over the suit property and had been from the day one protesting the putting of the fence by the State Government and the Industrial Training Institute, Nanded?	In affirmative.
[iii]	What order?	Second Appeal is allowed with costs.

9. At the out set, this Court finds that the original defendants did not at all dispute the ownership of the father of the plaintiffs and after the death of plaintiffs' father, the plaintiffs. Then there is no dispute that the defendants had put a wire fencing over the subject matter of the suit property somewhere in the year 1978, which defendants claim to have been erected in 1957-58, for which there is no direct or indirect evidence. But, then it is an admitted fact that the wire fencing was erected on the open space belonging to the plaintiffs abutting the acquired land for the Industrial Training Institute i.e. defendant No. 2 in 1978 and the Suit was filed in the year 1986 viz. Spl. Civil Suit No. 55 of 1986.

10. It is clear from the evidence that out of 19 Acres and 15 gunthas of the land belonging to the original owner Balaprasadji Shukla, 18 Acres 10 gunthas was acquired by the Government and the remaining 1 Acre 5 gunthas land was not acquired and remained with the land-lord. But, then a vague statement without producing any government record was made that under Award statement No. 144 dated 31/03/1356 Fasli, the said land was acquired, but for what, was not stated and another vague statement was made that some piece of land was acquired for Mahatma Phule vegetable market. It is thus clear from the record that the defendants have not brought the evidence on record in respect of suit property admeasuring 567.8 Sq. Meters, whether the same was acquired or not. On the contrary, there is finding of fact recorded by both the Courts below that the appellants have been in possession of the suit property through-out. The lower appellate Court has, however, recorded the finding that the defendant/State Government acquired the title by adverse possession. It is in this back-ground, the whole matter will have to be looked into. The lower appellate Court has not at all adverted to the voluminous evidence, oral as well as documentary, discussed by the trial Court, but it suddenly jumped to the conclusion that the State Government acquired title by adverse possession. It is well settled legal position that for claiming adverse possession, the burden is on the party who claims it. In the instant case, except one line that the State Government and the Industrial Training Institute, Nanded are in adverse possession, being in possession continuously for more than twelve (12) years, no other pleadings were set out nor any foundation in the form of evidence was laid. On the contrary, the evidence led by the plaintiffs was almost unchallenged about the protest when the wire fencing was put, firstly by the original owner Balaprasadji and thereafter by the plaintiffs and further issuance of three (3) notices to the State Government and the Industrial Training Institute, Nanded protesting the act of making encroachment. Not only this, the plaintiffs immediately filed Suit in the year 1986, within twelve (12) years.

11. It is surprising to note that the lower appellate Court has even gone to the extent of throwing the burden about the acquisition of the suit land upon the appellants/plaintiffs. I quote para No. 34 from the Judgment of the lower appellate Court, which reasoning, in my opinion, is wholly illegal.

In a suit for adverse possession, it is necessary for the party claiming it to establish that they were in possession for more than 12 years openly, uninterrupted. As observed above, they had put the fencing meaning thereby that they had projected their notorious possession. It is true that they had no knowledge about this ownership but they used it as owner thereof by putting wire fencing. I have further observed that there is no evidence from the respondents that this land was never acquired.

12. The defendants examined two (2) former Principals in support of their case, but then trial Court has rightly found that they had no personal knowledge and, therefore, their evidence was worthless. The trial Court also found that the defendants did not got the land measured nor led any evidence to show that the suit property was out of the acquired land. The trial Court discussed the evidence on record tendered by the plaintiffs and that is voluminous evidence. It would not be out of place to quote the portion of the trial Court's Judgment in relation to the said evidence. I quote the following paragraphs from the Judgment of the trial Court:

In support of their case, the plaintiffs relied upon documentary evidence consisting of 7/12 extract of the suit land (Exh. 40), a copy of a Sanad issued by the D.I.L.R. (Exh. 172), copy of P.R. Card No. 6470 (Exh.), maps of the suit land (Exh. 102 and 103), a map of C.T.S. No. 6469 (Exh. 104), copies of city survey enquiry register (Exh. 101 and Exh. 165), office copy of the notice dated 05/10/1978 (Exh. 86), acknowledgment receipt (Exh. 87), office copy of the notices under section 80 of C.P.C. dated 4/4/88 and 7/1/1986 (Exhs. 88 and 95), letter of D.I.L.R. dated 14/12/1990 (Exh. 106) and the reply of the defendant No. 2 dated 05/03/1986 (Exh. 99). The plaintiffs also examined the plaintiff No. 1 as P.W. 1 and one Pundlik Narayanrao Pandit as P.W. 2 in support of their case. The defendants denied that the suit land is a part and parcel of survey No. 74/2 and that they committed encroachment on the same in 1978. The defendants placed reliance on copies of Khasra Patrak (Exh. 42 and 43), 7/12 extracts (Exh. 44 and 45), a copy of site plan of Industrial Training Institute (Exh. 146), a letter of D.I.L.R. dated 17/09/1987 (Exh. 166), part plan of existing land used (Exh. 161), a map of different portions of survey No. 74 (Exh. 162), office copy of a letter to Executive Engineer dated 23/07/1969 (Exh. 142) and the D.O. letter of Executive Engineer dated 21/1/1969 (Exh. 144). The defendants also examined two formal Principal of the Industrial Training Institute as D.W.-1 and D.W.-2. After carefully considering the material on record, I am inclined to accept the case of the plaintiffs.

The plaintiff No. 1 (P.W. 1) deposed at Exh. 85 that survey No. 74 which belonged to their father admeasured 19 Acres 15 gunthas, out of that 18 Acres 10 gunthas was acquisitioned for labour colony. Survey No. 74/2 was allotted to the remaining part of that land. He then deposed that no portion of survey No. 74/2 was acquisitioned for the college road (workshop road), a portion of survey No. 74/2 that is the suit land is to the east of the Industrial Training Institute. He then deposed that the Industrial Training Institute premises consists of survey No. 73 and a part of survey No. 74/1. A portion of survey No. 74/2 was acquisitioned for Mahatma Phule market. Then, he stated that the plaintiffs have constructed a shopping complex in a portion of survey No. 74/2. He deposed that the suit land belongs to the plaintiffs. According to him, no portion of survey No. 74/2 was acquired for the purpose of Industrial Training Institute. His oral evidence is corroborated by survey maps and other documents. No significant admission appears in his cross examination.

The Khasra Patrak at Exh. 42 is regarding a portion of survey No. 74 which was acquisitioned by the State for the settlement of the labour colony. The area under the labour colony is shown as 18 Acres 10 gunthas. It also appears that the area acquired by the State was allotted survey No. 74/2. Then, the Khasra Patrak which is at Exh. 43 indicates that it pertains to the remaining portion of survey No. 74 after the acquisition. The remaining portion was allotted survey No. 74/B. That portion admeasure 1 Acre 5 gunthas. The extract indicates that Balaprasad was in actual possession of that land in 1953. Then, at Exh. 44 is the 7/12 extract of survey No. 74/A for the years 1960-61 to 1975-76. The municipality has been shown in possession of that land for those years. Then, at Exh. 45 is the 7/12 extract of survey No. 74/B of which allegedly the suit land is a portion. The extract indicates that Balaprasad was in possession of that land from 1960-61 to 1975-76. In the extract, the land is shown as fallow one. Therefore, it follows that the owner was in possession of the land which was vacant. Therefore, it can be said as is claimed by the learned counsel for the plaintiffs that Balaprasad was in possession of survey No. 74/2 from 1960-61 till 1975-76.

13. The above evidence, to my mind, was clearly indicative of the ownership, title and possession of the plaintiffs and the encroachment made by the Industrial Training Institute, Nanded. It is, however, astonishing to note that the lower appellate Court has not even considered the said evidence while setting aside the detailed Judgment made by the learned trial Court, but has expected negative evidence from the plaintiffs that the suit land was never acquired. It is thus clear to me that the Judgment made by the lower appellate Court is wholly wrong and illegal and can not be sustained. The Judgment of the trial Court decreeing the Suit will have to be restored.

In view of the fact that the State Government and the Industrial Training Institute, Nanded had already acquired the valuable land of the plaintiffs and their father and even the remaining land left for the plaintiffs was unjustifiably encroached and then from 1986, for no reasons without any proof of acquisition, the plaintiffs have been deprived of the land by the State Government for no justifiable reasons and in view of the fact that the State Government casually claimed the title to the suit property by adverse possession causing severe harassment to the plaintiffs, I intend to hold that the plaintiffs are inclined to the compensatory cost of ` 5,000/- [Rupees Five Thousand only] from the State Government and the Industrial Training Institute, Nanded.

In the result, I make the following Order.

ORDER

1) Second Appeal No. 670 of 2003 is allowed.

2) The impugned Judgment and decree dated 09/06/2003 passed by the Joint District Judge, Nanded in R.C.A. No. 201 of 1998 is set aside.

3) The Judgment and decree dated 17/04/1993 passed by the 3rd Jt. Civil Judge (Sr. Division), Nanded in Spl. Civil Suit No. 55 of 1986 is restored.

4) The respondents-State Government and Industrial Training Institute, Nanded shall pay compensatory cost of ` 5,000/- [Rupees Five Thousand only] to the appellants/plaintiffs within the period of eight (8) weeks from today.

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