the plaintiffs-respondents could claim adverse
possession, we need to hardly mention the well
known and oft quoted maxim nec vi, nec clam, nec
precario meaning thereby that adverse possession
is proved only when possession is peaceful, open,
continuous and hostile. The essentials of adverse
possession were succinctly summed-up by this
Court in Karnataka Board of Wakf v. Govt. of India
(2004) 10 SCC 779 in the following words:
“11.In the eye of the 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 the 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 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 Sakina (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
14 (2004) 10 SCC 779
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. [Mahesh Chand Sharma
(Dr.) v. Raj Kumari Sharma (1996) 8 SCC
128)."
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2238 OF 2016
BANGALORE DEVELOPMENT AUTHORITY Vs N. JAYAMMA
Dated;MARCH 10, 2016.
A.K. SIKRI, J.
The instant appeal, which has travelled to this Court, had its
origin in a suit filed by the respondent in the Court of City Civil
Judge, Bangalore. The said suit was filed by the respondent
herein for declaration of title to the suit property situated in Sy. No.
76/1. It was claimed by the respondent that she had purchased
the property on June 22, 1994 ad-measuring East to West – 60 ft.
and North to South – 50 ft. (hereinafter referred to as the 'suit
property') from its previous owner and had constructed a building
thereupon. The aforesaid suit property, which was part of Sy. No.
76/1 comprising 4 acres 31 guntas (hereinafter referred to as the
'scheduled property'), was acquired by the State Government for
Bangalore Development Authority – appellant herein (for short,
'the BDA'), for which Notification under Section 4 of the Land
Acquisition Act, 1894 (for short, 'the Act') was issued on
December 15, 1984 followed by a declaration under Section 6 of
the Act on October 29, 1986. Purportedly, possession thereof
was handed over to the BDA on August 30, 1988 vide Mahazar
(Exhibit D-4). However, it appears that the actual possession of
the suit property remained with the original owner who then sold it
to the respondent in the year 1994, as stated above. It is on this
basis that the respondent filed the suit on the ground that she was
in possession of the said property for more than 12 years even
after the acquisition thereof by the State Government and, in this
manner, she had perfected her title by adverse possession. Thus,
the relief claimed in the suit was for declaration that the
respondent had become the owner thereof.
2) The appellant contested the said suit by raising the plea that since
the scheduled property had been acquired by the Government for
formation of the layout and with effect from the date of final
notification entire land vested with the Government, the
respondent was precluded from claiming the possession thereof
on the ground that it was already with her. It was also contended
that the Government had handed over the possession of the land
in question to the BDA on August 30, 1988 and BDA was in legal
possession thereof. It was also submitted that once Notification
under Section 4 of the Act was issued on December 15, 1984 and
even declaration under Section 6 was issued on October 29,
1986, it was not permissible for the original owner to sell the
acquired land to the respondent herein on June 22, 1994. It was
also contended that as the land vested with the Government, in
any case, the limitation under Article 112 of the Limitation Act,
1963 was 30 years and not 12 years and, therefore, the
respondent could not claim adverse possession before the expiry
of 30 years.
3) The trial court, on the basis of the pleadings, framed the following
issues:
“(1) Whether the plaintiff proves that she and her
predecessors in title have been in continuous
possession and enjoyment of the suit schedule
property since more than 12 years, adverse to the
interest of the defendant as pleaded in the plaint?
(2) Whether the plaintiff proves that she had
perfected her title to the suit schedule property by
way of adverse possession as pleaded in the
plaint?
(3) Whether the plaintiff proves that the defendant
and his officials are unlawfully interfering with her
possession of the suit schedule property as alleged
in the plaint?
Civil Appeal No. 2238 of 2016 Page 3 of 25Page 4
(4) Whether the plaintiff proves that she is entitled
for the declaration of title to the suit schedule
property as sought for in the suit?
(5) Whether the plaintiff proves that she is also
entitled for the grant of permanent injunction
against the defendant as ought for in the suit?”
4) Evidence was led and arguments heard, which resulted in
passing of judgment and decree dated April 07, 2006 by the
Additional City Civil Judge, Bangalore. All the issues were
decided in favour of the respondent herein, on the basis of which
suit was decreed in her favour declaring that she is the owner in
possession of the suit property having perfected her title by way
of adverse possession. As a consequence, decree of permanent
injunction was also passed restraining the appellant – BDA, its
officials and agents, etc. from alienating the suit property either by
way of lease, public auction or by allotting the same in favour of
any third party or from interfering with the peaceful possession
and enjoyment of the said property by the respondent. This
judgment and decree was appealed against by the appellant
before the High Court by filing Regular First Appeal No. 1279 of
2006. The High Court has, vide impugned judgment, affirmed the
decree passed by the trial court thereby dismissing the appeal of
the appellant.
5) Attacking the judgment and decree passed by the trial court and
affirmed by the High Court, learned counsel for the appellant
submitted that even if it is presumed that limitation period for
claiming adverse possession is 12 years, in the instant case, that
ingredient has not been satisfied by the respondent even on the
basis of admitted facts. In this behalf, it was argued that as per
the respondent's own showing, she had purchased the area of 60
ft. x 50 ft. out of the acquired land on June 22, 1994. She, thus,
came into possession in the year 1994. He further pointed out
that in the plaint itself, the respondent had averred that there was
some existing construction and she had applied for regularisation
of the said existing construction on July 25, 1994. Further, in para
10 of the plaint, the respondent admitted that the officials of the
appellant had come to the suit, properly accompanied by Police
force, and demolished the existing construction. He drew our
attention to the following averments in the plaint to the aforesaid
effect:
“In spite of the above stated facts, the BDA and its
officials without any kind of notice and with the help
of a large contingent of police force accompanied
by the officials and workmen including the
Commissioner, BDA and all of a sudden they have
illegally trespassed over the suit schedule property
on 24.04.2001 and interfered over the same and
demolished the existing construction buildings as
well as her business therein on 24.04.2001 with the
aid of bulldozers and such other machinery,
Civil Appeal No. 2238 of 2016 Page 5 of 25Page 6
equipments....”
6) It was, thus, argued that after purchase of the land on June 22,
1994, the respondent remained in possession for barely 7 years
when she was dispossessed, even as per the respondent's own
showing and the suit filed on August 06, 2001 claiming adverse
possession on the ground that she was in possession for 12
years, was incompetent. It was further submitted that as per the
aforesaid pleadings in the plaint, it was clear that on the date of
filing the suit, the respondent was not in possession nor was there
any structure on the suit land and the question of claiming
adverse possession, thus, did not arise.
7) Learned counsel also argued that in order to lay claim of
ownership on the basis of adverse possession, it has to be proved
that such adverse possession is open and uninterrupted to the
enjoyment of the defendant-Authority for more than 12 years,
which essential requirement had not been satisfied. For this
proposition, the learned counsel placed heavy reliance upon a
recent judgment of this Court in M. Venkatesh & Ors. v.
Commissioner, Bangalore Development Authority.1
1 (2015) 10 Scale 27
8) We may note at this stage that in arriving at a finding that the
respondent was in possession of suit property for more than 12
years, the courts below have calculated the period from August
30, 1988, namely, the date on which possession was taken under
a Mahazar (Exhibit D-4) by the State Government and handed
over to the BDA. Learned counsel for the BDA pleaded that the
aforesaid approach of the courts below was wholly erroneous as
the respondent, as per her own showing, came to possess the
suit property only after the purchase thereof on June 22, 1994.
He also submitted that, in any case, sale in favour of the
respondent in the year 1994 was void ab initio as the title had
already been vested in the BDA and the original owner who had
purportedly sold the property to the respondent was no longer
owner thereof and had no right to sell the same. Learned counsel
argued that even this aspect is squarely covered by the aforesaid
judgment in the case of M. Venkatesh (supra). Learned counsel
also pointed out that after the structure was demolished in the
year 2001 by the BDA, as admitted by the respondent herself, the
site in question was auctioned by the appellant on August 06,
2001 and sale deed was duly executed, which was proved before
the trial court as Exhibit P-26.
9) Per contra, learned counsel for the respondent submitted that the
respondent had led sufficient evidence to establish that she had
been in continuous possession, which remained uninterrupted,
and on the basis of this evidence a categorical finding was arrived
at by the trial court to the effect that the respondent has perfected
her title in respect of the suit property by way of adverse
possession. This submission was elaborated by arguing that
even when the schedule property was acquired by issuing
requisite notifications and passing of the award, possession of the
suit property was never taken by the BDA, which continued to be
in possession of the vendor, from whom the respondent
purchased the property vide sale deed dated June 22, 1994, and
thereafter she had been in possession of this property. It was
submitted that these were findings of facts arrived at on the basis
of evidence produced on record which do not warrant any
interference. It was also submitted that Mahazar (Exhibit D-4)
dated October 13, 1988 was only a paper possession and no
actual possession had been taken, which also stood proved not
only by the evidence led by the respondent, but even from the
statements of DW-1 and DW-2, who were examined on behalf of
the BDA. Learned counsel further pointed out that there was not
even an iota of evidence adduced on behalf of the BDA that the
Civil Appeal No. 2238 of 2016 Page 8 of 25Page 9
possession of the suit property was taken on the date of Mahazar
(Exhibit D-4) or subsequently thereafter.
10) Insofar as claim of continuous, uninterrupted and peaceful
possession for a period of more than 12 years is concerned, it
was the submission of the learned counsel for the respondent that
possession of the respondent shall not be counted from the date
of the sale deed, i.e. June 22, 1994, in her favour, but the earlier
period during which the vendor was in possession also needs to
be counted and the courts below were right in computing the
period of 12 years from the date of Mahazar (Exhibit D-4) dated
October 13, 1988. A fervent plea was made that if the impugned
judgment is reversed, the respondent and the members of her
family will be deprived of their only shelter, which would amount to
taking away their right to property guaranteed to them under
Article 300A of the Constitution of India. It is stated that there was
a fully developed structure (house) (Exhibits P-22 to P-25) on the
suit property and the building was constructed after obtaining
permission and licence from Agara Gram Panchayat and regularly
taxes were paid with respect to the suit property and Khatha also
stands in favour of the respondent. It was submitted that at no
point of time the BDA took possession of the property in question
Civil Appeal No. 2238 of 2016 Page 9 of 25Page 10
from the vendor or the respondent. It was also argued that the
BDA being a statutory authority created for the purpose of
formation of layouts and allotment of sites to the members of the
pubic, even in equity it was not proper, just or fair to deprive the
respondent of her only source of shelter. The very objective of
the BDA is to provide shelter to the members of public. The
counsel, thus, pleaded that this Court should not exercise its
extraordinary power under Article 136 of the Constitution even if
the judgment impugned suffers from any error if the said judgment
will not bring about any unjust result.
11) Another submission of the learned counsel for the respondent
was that the very purpose for which the land was acquired was to
prepare a scheme for allotment of the houses to the members of
the public. As per Section 27 of the Bangalore Development
Authority Act, 1976, such a scheme had to be prepared within five
years from the passage of the award, but the BDA had failed to do
so resulting in the lapsing of the scheme. This was yet another
reason, according to the respondent, for not interfering with the
decree passed in favour of the respondent.
12) Tracing the history of the present litigation, learned counsel for
the respondent referred to the judgment of the Karnataka High
Court in John B. James & Ors. v. Bangalore Development
Authority & Anr.2
Delivering the judgment in that case, in a
batch of writ petitions which were filed by the respondent and
several others, the High Court, after elaborately considering the
rival contentions of the parties, had directed the writ petitioners,
including the respondent herein to approach the civil court to
establish their claim that they had perfected their title to the suit
property by adverse possession, as is clear from the following
passage therefrom:
“85. Where the petitioners claim that they are in
settled possession for more than 12 years after the
land had vested in BDA, it is open to them to
approach the Civil Court for a declaration of title by
establishing adverse possession for more than 12
years.”
13) Learned counsel for the respondent joined issue qua the
arguments of the appellant predicated on the judgment of this
Court in M. Venkatesh case with the submission that the said
judgment had absolutely no application to the facts of the present
case as the said case relates to the vacant house site and
construction of building after dispossession, which was not the
position in the instant case. On the other hand, he referred to the
following judgments of this Court wherein symbolic/paper
possession is held to be no possession in the eyes of law and it is
2 ILR 2000 KAR 4134
the actual possession under relevant rules which matters:
(i) Balwant Narayan Bhagde v. M.D. Bhagwat3
(ii) NTPC Ltd. v. Mahesh Dutta4
(iii) Raghbir Singh Sehrawat v. State of Haryana5
14) Learned counsel for the respondent even referred to the
provisions of the Right to Fair Compensation and Transparency in
Land Acquisition Rehabilitation and Resettlement Act, 2013, and
in particular sub-section (2) of Section 24 which lays down
specific period within which the possession is to be taken of the
property after acquisition and when no such possession was
taken, the acquisition lapses.
15) In the first blush, argument of the learned counsel for the
respondent, viz., there is a finding of fact that respondent and her
predecessors-in-title have been in continuous possession and
enjoyment of the suit property for more than 12 years and,
therefore, the respondent has perfected her title by adverse
possession, appears to be attractive. It may appear to be a
finding of fact simplicitor. However, an indepth analysis of the
issue would manifest that the matter cannot be brushed aside
with such a simplisitic overtone. In fact, the detailed discussion
3 (1976) 1 SCC 700
4 (2009) 8 SCC 339
5 (2012) 1 SCC 792
that follows would amply demonstrates that the manner in which
the issue has been approached by the courts below is itself
erroneous and legally unsustainable. For this, we are not even
required to discuss various nuances of the issue as the judgment
of this Court in M. Venkatesh has done this exercise whereby
same issue has been directly and squarely dealt with which arose
in almost similar circumstances. Therefore, it would be apt to
discuss the facts of that case as well as law laid down therein
which would provide answers to many arguments raised by the
parties before us.
16) In M. Venkatesh (supra) as well, land was acquired by the State
Government of Karnataka and given at the disposal of the BDA.
Preliminary Notification was issued on July 17, 1984 and final
Notification dated November 28, 1986 was published on
December 25, 1986. Determination of amount of compensation
payable to the landowners having been approved by the
competent authority on August 21, 1986, the BDA claimed that
possession of the land was taken over from the landowners and
handed over to the engineering section of the BDA by drawing a
possession Mahazar on November 06, 1987. A Notification under
Section 16(2) of the Act was also published in the Karnataka
Civil Appeal No. 2238 of 2016 Page 13 of 25Page 14
Gazette dated July 04, 1991 which, according to the BDA,
signified that the land in question stood vested with the BDA free
from all encumbrances whatsoever. Here also, after taking of the
aforesaid steps by the BDA, the original land owners of the
acquired land sold the said land to different persons after carving
out the sites/plots. When the actual possession was sought to be
taken, the said subsequent purchasers (like the respondent in the
instant appeal) filed writ petitions in the High Court. Their writ
petitions, along with the writ petition of the respondent herein and
some others, were the subject matter of the judgment of the
Division Bench of the High Court in John B. James's case
(supra). Like the respondent herein, the individuals/subsequent
purchasers in the case of M. Venkatesh (supra) were also
relegated to the civil court giving them permission to file the suit if
they were claiming adverse possession. Five such suits were the
subject matter of the judgment in M. Venkatesh (supra). The trial
court had, in fact, clubbed these suits which were decided
together and decreed. The issues framed in those suits were
almost the same to the ones framed in the civil suit filed by the
respondent herein, as is clear from the issues which were settled
by the trial court in those cases:
“(1) Whether the Plaintiffs prove that, they have
acquired and perfected their alleged title to the suit
schedule properties by virtue of the alleged law on
adverse possession, as claimed?
(2) Whether the Plaintiffs prove their alleged lawful
possession and enjoyment of the suit schedule
properties, as on the date of the suit?
(3) Whether the Plaintiffs further prove the alleged
illegal interferences and obstructions by the
defendant?
(4) Whether the defendant proves that, the suit
schedule properties is duly acquired by the
defendant, in accordance with law and as such, the
same have stood vested with the defendant, free
from all the encumbrances?
(5) Whether the Plaintiffs are entitled to the suit
relief of declaration and injunction, against the
defendant?
(6) What Order or Decree?”
17) In that case also the trial court had recorded the findings that
those plaintiffs were in lawful possession on the date of the suit,
such possession was for more than 12 years and, thus, the
plaintiffs had perfected their title to the schedule properties by
way of adverse possession. The BDA filed appeals against the
decree passed by the trial court. Four appeals were allowed
wherein the High Court held that the trial court was wrong in
recording the finding that those four plaintiffs had established their
possession. It was noticed that the plaintiffs in those appeals
were claiming settled possession of vacant piece of land, which
was clearly impermissible. The High Court found that there was
no dispute that all the structures on the suit properties, relevant to
those suits, had been demolished and that the land was a vacant
piece of land all along and at all material times, including on the
date of filing the suit as well as on the date of judgment. These
four plaintiffs had filed appeals which were dismissed by this
Court in M. Venkatesh (supra) approving the view taken by the
High Court in the said four appeals. Insofar as decision in those
four cases is concerned, it may not be very relevant as in the
instant case it is not the vacant land with which we are concerned.
However, what is relevant for us is the discussion in the fifth
appeal which was filed by the BDA in the High Court wherein the
High Court had affirmed the decree passed in favour of the
plaintiff. The High Court noticed that in the said case the plaintiffs
were running a saw mill which was in operation long prior to the
filing of the suit and which continued to be in existence even on
the date of the suit as well as on the date of the judgment of the
High Court. Keeping in view the aforesaid position, the High
Court relied upon its Division Bench judgment in John B.
James's case (supra) and held that the plaintiff therein was
entitled to protection against attempted eviction by the BDA. On
this basis, decree passed by the trial court was affirmed. This
judgment of the High Court was also appealed against, which also
became the subject matter of discussion in M. Venkatesh
(supra). Pertinently, this Court allowed the appeal of the BDA and
set aside the aforesaid judgment of the High Court and reversed
the decree passed by the trial court, thereby holding that even in
this case the plaintiff was not entitled to any protection.
18) Following reasons can be culled out in taking the aforesaid view
by this Court:
(a) The plaintiff therein had purchased the property from the original
owners in terms of sale deed dated August 22, 1980, which was
long after the issuance of the preliminary notification published in
July 1984. Such a sale was clearly void and non est in the eyes
of law, opined the Court. In arriving at this conclusion, it referred
to earlier decisions of this Court in U.P. Jal Nigam v. Kalra
Properties Pvt. Ltd.6
; Ajay Kishan Singhal v. Union of India7
;
Mahavir & Anr. v. Rural Institute, Amravati & Anr.8
; Gian
Chand v. Gopala & Ors.9
; Meera Sahni v. Lieutenant Governor
of Delhi & Ors.10; and Tika Ram v. State of Uttar Pradesh11
.
(b) As on the date of suit, the plaintiffs had not completed 12 years in
possession of the suit property so as to entitle them to claim
6 (1996) 3 SCC 124
7 (1996) 10 SCC 721
8 (1995) 5 SCC 335
9 (1995) 5 SCC 528
10 (2008) 9 SCC 177
11 (2009) 10 SCC 689
adverse possession against the BDA, the true owner. This finding
was given on the basis that the plaintiffs could count the period of
the so-called adverse possession only from the date they
purchased the property and the period for which the original
vendor held the property, or for that matter the date of Mahazar,
could not be counted.
(c) The Court also rejected the argument of the plaintiffs that
possession of the land was never taken. In this behalf, the Court
took the view that one of the settled mode of taking possession is
by drawing a panchnama, which part had been done to perfection
according to the evidence led by the BDA. For this, the Court
referred to the judgments in Tamil Nadu Housing Board v. A.
Viswam (D) by Lrs.12 and Larsen & Toubro Ltd. v. State of
Gujarat & Ors.13
(d) Most pertinently, the Court also held that the plaintiffs could not
claim adverse possession as, on the facts of that case, it could
not be said that possession of the plaintiffs was peaceful, open,
continuous and non-hostile. On this aspect, the Court took note
of essentials of adverse possession, which are required to be
proved, from the judgment in the case of Karnataka Board of
12 (1996) 2 SCC 634
13 (1998) 4 SCC 387
Wakf v. Government of India14 and some other judgments.
Discussion in this behalf is contained in paras 15 to 18, which
read as under:
“15. Coming then to the question whether
the plaintiffs-respondents could claim adverse
possession, we need to hardly mention the well
known and oft quoted maxim nec vi, nec clam, nec
precario meaning thereby that adverse possession
is proved only when possession is peaceful, open,
continuous and hostile. The essentials of adverse
possession were succinctly summed-up by this
Court in Karnataka Board of Wakf v. Govt. of India
(2004) 10 SCC 779 in the following words:
“11.In the eye of the 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 the 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 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 Sakina (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
14 (2004) 10 SCC 779
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. [Mahesh Chand Sharma
(Dr.) v. Raj Kumari Sharma (1996) 8 SCC
128)."
16. Reference may also be made to the decision of
this Court in Saroop Singh v. Banto (2005) 8 SCC
330, where this Court emphasised the importance
of animus possidendi and observed:
“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
defendant's possession becomes adverse.
(See Vasantiben Prahladji Nayak v. Somnath
Muljibhai Nayak (2004) 3 SCC 376).
30. "Animus possidendi" is one of the
ingredients of adverse possession. Unless the
person possessing the land has the 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 (2004) 1 SCC 371, SCC
para 21.)"
17. Also noteworthy is the decision of this Court in
Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC
639, where this Court held that claim of title to the
property and adverse possession are in terms
contradictory. This Court observed:
“4. As regards the first plea, it is inconsistent
with the second plea. Having come into
possession under the agreement, he must
disclaim his right thereunder and plead and
prove assertion of his independent hostile
adverse possession to the 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 of 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 the 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."
18. To the same effect is the decision of this Court
in Annasaheb Bapusaheb Patil v. Balwant (1995) 2
SCC 543, where this Court elaborated the
significance of a claim to title viz.-a-viz. the claim to
adverse possession over the same property. The
Court said:
“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 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."
19) After taking note of the principle of law relating to adverse
possession in the aforesaid manner, this Court commented about
the erroneous approach of the High Court in the following
manner:
“19. The Courts below have not seen the plaintiffrespondent's
claim from the above perspectives.
The High Court has, in particular, remained
oblivious of the principle enunciated in the
decisions to which we have referred herein above.
All that the High Court has found in favour of the
plaintiffs is that their possession is established.
That, however, does not conclude the controversy.
The question is not just whether the plaintiffs were
in possession, but whether they had by being in
adverse possession for the statutory period of 12
years perfected their title. That question has neither
been adverted to nor answered in the judgment
impugned in this appeal. Such being the case the
High Court, in our opinion, erred in dismissing the
appeal filed by the appellant-BDA. The fact that the
plaintiffs had not and could not possibly establish
their adverse possession over the suit property
should have resulted in dismissal of the suit for an
unauthorised occupant had no right to claim relief
that would perpetuate his illegal and unauthorised
occupation of property that stood vested in the
BDA.”
20) In addition to the discussion contained in M. Venkatesh case
noted above, we may also add what was held in P.T.
Munichikkanna Reddy & Ors. v. Revamma & Ors.15:
“5. Adverse possession in one sense is based on
the theory or presumption that the owner has
abandoned the property to the adverse possessor
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; Arkansas
Commemorative Commission v. City of Little Rock;
Monnot v. Murphy; and City of Rock Springs v.
15 (2007) 6 SCC 59
Sturm).”
21) In Rama Shankar & Anr. v. Om Prakash Likhdhari & Ors.16, the
Allahabad High Court has observed as under:
“21. The principle of adverse possession and its
consequences wherever attracted has been
recognized in the statute dealing with limitation.
The first codified statute dealing with limitation
came to be enacted in 1840. The Act 14 of 1840 in
fact was an enactment applicable in England but it
was extended to the territory of Indian continent
which was under the reign of East India Company,
by an authority of Privy Council in the East India
Company v. Oditchurn Paul, 1849 (Cases in the
Privy Council on Appeal from the East Indies) 43.
xx xx xx
23. The law of Prescription prescribes the period at
the expiry of which not only the judicial remedy is
barred but a substantive right is acquired or
extinguished. A prescription, by which a right is
acquired, is called an 'acquisitive prescription'. A
prescription by which a right is extinguished is
called 'extinctive prescription'. The distinction
between the two is not of much practical
importance or substance. The extinction of right of
one party is often the mode of acquiring it by
another. The right extinguished is virtually
transferred to the person who claims it by
prescription. Prescription implies with the thing
prescribed for is the property of another and that it
is enjoyed adversely to that other. In this respect it
must be distinguished from acquisition by mere
occupation as in the case of res nullius. The
acquisition in such cases does not depend upon
occupation for any particular length of time.”
22) The aforesaid analysis of the judgment in M. Venkatesh (supra)
amply shows that it is squarely and directly applicable to the facts
16 (2013) 6 ADJ 119
and circumstances of the present case. In the first instance, it
shows that reliance of the respondent herein on the judgment of
John B. James (supra) is of no avail. It would further
demonstrate that the findings of the court below that only paper
possession was taken and actual possession was not taken also
becomes meaningless as the manner of taking possession in the
instant case was also identical. In addition, it is pertinent that the
respondent herein, in para 10 of the plaint, had herself admitted
that the officials of the BDA had come to the suit property on April
24, 2001 and demolished the existing structure. This act of the
BDA would amply demonstrate that there was no unhindered,
peaceful and continuous possession of the suit land.
23) Learned counsel for the respondent had raised the plea of equity.
He has also submitted that when the BDA itself is created for the
purpose of formation of layouts and allotment of sites to the
members of the public, the respondent should not be
dispossessed when she is in continuous possession of the suit
property. However, these would not be the relevant
considerations in the present case as we cannot forget that the
present appeal arises out of civil proceedings filed in the form of a
suit by the respondent and once it is found that the respondent
has not been able to prove title by adverse possession, no such
aspects, not coming within the scope of the suit proceedings, can
be looked into. Insofar as the argument predicated on Section 27
of the Bangalore Development Authority Act or Section 24(2) of
the Right to Fair Compensation and Transparency in Land
Acquisition Rehabilitation and Resettlement Act, 2013 are
concerned, again these issues were neither raised nor arise in the
instant case. If the respondent, if at all, has any right to make
claim on the aforesaid grounds, in any appropriate proceedings,
she can do so, if permissible in law. We may clarify that this
Court has not gone into these issues and, therefore, has not
made any comments on the merits of such pleas raised by the
respondent.
24) As a result, the appeal stands allowed resulting in dismissal of the
suit filed by the respondent in the trial court. In the facts and
circumstances of this case, there shall be no order as to costs.
.............................................J.
(A.K. SIKRI)
.............................................J.
(R.K. AGRAWAL)
NEW DELHI;
MARCH 10, 2016.
No comments:
Post a Comment