Law Web: Leading Judgment on adverse possession

Burden of proof lies on the person who claims to acquire

title of the land by way of adverse possession. Adverse possession is

not a pure question of law, but a blended one of fact and law.

12. In Annasaheb Bapusaheb Patil and others v. Balwant

alias Balasaheb Babusaheb Patil (dead) by LRs & heirs etc., AIR 1995

SC 895, the apex Court held that adverse possession means a hostile

assertion i.e. a possession which is expressly or impliedly in denial of

title of the true owner. Under Article 65 of the Limitation Act, 1962,

burden is on the defendants to prove affirmatively. A person who

bases his title on adverse possession must show by clear and

unequivocal evidence i.e possession was hostile to the real owner and

amounted to a denial of his title to the property claimed. In deciding

whether the acts, alleged by a person, constitute adverse possession,

regard must be had to the animus of the person doing those acts 6

which must be ascertained from the facts and circumstances of each

case. The person who bases his title on adverse possession,

therefore, must show by clear and unequivocal evidence i.e.

possession was hostile to the real owner and amounted to a denial of

his title to the property claimed. It was further held that where

possession could 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 tide at all.

13. In Karnataka Board of Wakf v. Govt. of India (2004) 10

SCC 779 at para 11, the apex Court observed as under :-

"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."

The court further observed that 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 7

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.”

HIGH COURT OF ORISSA: CUTTACK

SA No.229 of 2000

Manindranath Bhuyan

State of Orissa & another

PRESENT:

DR. JUSTICE A.K.RATH

Citation:AIR 2017(NOC) 229 Orissa

Date of judgment: 20.01.2017

Dr. A.K.Rath, J Plaintiff is the appellant against the confirming judgment

in a suit for declaration of right of occupancy and recovery of

possession.

2. The case of the plaintiff is that Bhupendranath Bhuyan,

the father of the plaintiff, was inducted as a tenant by the Ex–

landlord of Burdhawan Estate. He made the suit land fit for

cultivation and grew paddy crops thereon with the permission of the

officials of Kujanga Estate. He took the suit land on lease in the

name of his son-plaintiff from Raja of Burdhawan in Lease Case

No.399/1949-50 and paid salami. The plaintiff and his father were 2

the tenants under the State after the Orissa Estate Abolition Act

came into force in the year 1952. Though he had taken steps before

the settlement authorities, but then the R.O.R of the suit land was

not issued in his favour. While the matter stood thus, Encroachment

Case No.93/81 was initiated against him by the Tahasildar,

Marsaghai. Further case of the plaintiff is that in the alternative if it

is found that the father of the plaintiff or the plaintiff were not

properly inducted as tenants in respect of the suit land, they have

perfected title by way of adverse possession on the ground that his

father as well as himself were in possession of the suit land

continuously for more than 30 years with the knowledge of the

government officials.

3. Pursuant to issuance of summons, the defendants

entered appearance and filed comprehensive written statement

denying the assertions made in the plaint. Apart from challenging the

maintainability of the suit on the ground of non-issuance of notice

under Section 80 CPC, it was pleaded that the order of eviction had

been passed in Encroachment Case No.93/81 and the plaintiff had

been dispossessed. The suit is not maintainable since recovery of

possession has not been prayed. The description of the suit land is

vague and indefinite. The suit land was unsurveyed jungle block

under Kujanga estate. The estate was vested in the State in the year

1952. The settlement operation in the village was started in the year

1959. The ROR was finally published in the year 1966 in the name of

the Forest Department, Government of Orissa. The kissam of the

land is Jungle-II. Since the suit land was encroached by the

encroachers, Encroachment Case No.93/81 was initiated against

them. The encroachers admitted that the suit land is a Government

land for which penalty of Rs.709.20 ps. was imposed on 24.12.1981.

The same had been paid by the encroachers on 4.1.1987. The 3

encroachers had been evicted by due process of law. Further, after

vesting in the State, no ekapadia was submitted by the ex-landlord in

favour of the plaintiff.

4. On the inter se pleadings of the parties, learned Munsif,

Kendrapara framed six issues, which are quoted hereunder;

“1. Is the suit maintainable?

2. Has the plaintiff any cause of action?

3. Is the suit hit under Section 80 CPC ?

4. Has the plaintiff acquired any right, title, interest or

possession by way of adverse possession over the suit

land?

5. What other relief, the plaintiff is entitled to ?

6. Whether the plaintiff has acquired the right of

occupancy in respect of the suit land ?”

5. To substantiate the case, the plaintiff had examined five

witnesses and on his behalf, eight documents had been exhibited.

The defendants had neither examined any witness nor exhibited any

document. Learned trial court came to hold that neither the plaintiff

nor his father was a tenant under the Ex-intermediary. In absence of

any evidence of possession for a continuous period, no right of

occupancy can be created in his favour. It was further held that there

is no evidence with regard to holding any land under the ex-landlord

from the year 1950 till 1960. The claim as regards the right acquired

through adverse possession has been clearly refuted by the Forest

Settlement Officer. Held so, learned trial court dismissed the suit.

6. Assailing the judgment and decree passed by the learned

trial court, the plaintiff filed Title Appeal No.7/90 before the learned

Addl. District Judge, Kendrapara. On a thread-bare analysis of the

evidence, oral as well as documentary and pleadings, learned lower

appellate court came to hold that there is nothing on record which

would establish that the State Government accepted the plaintiff as

the tenant for the suit land after vesting in the year 1952 and that

the alleged tenancy of the plaintiff and/or his father under 4

Burdhawan Estate was recognized by the State Government after the

Estate Abolition Act came into force in the year 1952. Therefore, the

plaintiff has no manner of any right to claim the suit land on the

ground that he or his father was tenant under the ex-landlord before

vesting of the Estate. It further held that there is no evidence to

establish that the plaintiff is in peaceful possession over the suit land

for more than 30 years with the knowledge of the true owner.

Therefore, the plaintiff has failed to establish his right, title, interest

and possession over the suit land by way of adverse possession. Held

so, learned lower appellate court dismissed the appeal.

7. The second appeal was admitted on 15.7.2002 on the

following substantial questions of law;

“1. Whether the father of the plaintiff and thereafter the

plaintiff by virtue of long continuous possession over the

suit land for more than the statutory period have become

occupancy rayat within the meaning of Section 23 of the

Orissa Tenancy Act and whether they have acquired right

of occupancy under Section 24 of the said Act.?”

2. Whether the plaintiff has acquired right of

occupancy by virtue of adverse possession having

remained in possession for more than the statutory

period ?”

8. Heard Mr.Yeeshan Mohanty, learned Senior Advocate for

the appellant and Mr. P.C. Panda, learned Addl. Government

Advocate for the State.

9. Mr. Mohanty, learned Senior Advocate for the appellant,

argued with vehemence that the suit schedule land was unsurveyed

cultivable waste land belonging to ex-intermediary of Kujanga estate.

The ex-intermediary inducted the plaintiff while he was a minor

through his father. The father of the plaintiff reclaimed the land and

made it fit for cultivation. His father paid rent to the ex-intermediary.

After vesting of the estate, the rent offered by his father was not

accepted by the Tahasildar. After death of his father, the plaintiff 5

remained in possession of the land peacefully, continuously and to

the hostile animus of the true owner for more than thirty years and,

as such, he has perfected his title by way of adverse possession.

10. Per contra, Mr. Panda, learned Addl. Government

Advocate for the State, submitted that the suit schedule land

originally belongs to ex-intermediary of Kujang. The estate was

vested in the State of Orissa in the year 1952. The ex-intermediary

has not submitted any Ekapadia in favour of the father of the

plaintiff or the plaintiff. No reliance can be placed on the rent

receipts. The plaintiff was a minor. Further, the date of entering into

the possession of the suit land has not been mentioned. The plaintiff

has not proved that he is in possession of the land peacefully,

continuously and to the hostile animus of the true owner for more

than the statutory period. Since there is no perversity or illegality in

the judgments of the courts below, this Court should not interfere

with the same.

11. Burden of proof lies on the person who claims to acquire