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JUDGEMENTS Dagadabai versus Addas (Mohammadan Law does not recognize adoption) case in proptiger ON ADVERSE POSSESSION SC JUDGEMENT Dagadabai versus Addas (Mohammadan Law does not recognize adoption) complete on indian kanoon ON ADVERSE POSSESSION
My notes on SC JUDGEMENT Dagadabai versus Addas (Mohammadan Law does not recognize adoption) ON ADVERSE POSSES
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JUDGEMENTS in times of india ON ADVERSE POSSESSION 2nd news paper carrying JUDGEMENTS ON ADVERSE POSSESSION
http://www.wbja.nic.in/wbja_adm/files/title.pdf
M. Venkatesh & Ors. v. Commissioner, Bangalore Development Authority.txt
M. Venkatesh & Ors. v. Commissioner, BDA Points.txt
Police complaint Police complaint
ADVERCE POSSESSION
INTRODUCTION:
(1) In society everything cannot be covered under the umbrella of
governance, disciplines and order. Some things must be preceded by
spirituality which is higher, lofty, pure and divine thinking. It is just like
Directive principles of state policy prescribed in Part IV of the constitution.
The Articles in this part of the constitution are crucial, important and
significant. But the articles are not justifiable. The law of adverse
possession has to be viewed from the angle of welfare and charity.
(2) In recent judgment Hon'ble Supreme Court has shown repulsion to
the adverse possession of law just because India has spirituality, charity and
philanthropy. Basically these ideas given to us by Verse 1.4.14 of
Briahadaranyak Upnishad reads in Sanskrit as “Sarve Bhavantu Sukhina :
Sarve santu Niramaya: Sarve Bhadrani Pashyantu : ma kaschit dukh
bhagbhavet”. It means “May happiness, prosperity shower on all, may good
health inform all, may all see auspiciousness, No human being may suffer.
The lofty altruism is uttered by sages wishing banishment of all sorrows, all
human sufferings and deficiencies and uplifting of all souls spiritually.
These thoughts wished by sages may become a reality if no one of us
natches wealth from others, if no one dispossesses another of his rightfully
owned land and no one evicts a rightful owner from his house. But
unfortunately humans are greedy, cruel and sadist and that is the cause of
all civil litigation. If spirituality envelopes each of us then greed, cruelty
and sadism will vanish from our minds. On the other hand there should be
control on the persons who are irresponsible and senseless regarding their
rights, claims and interest in property. On this back ground the right of
adverse possession is to be viewed.
(3) Law is nothing but an abacus which contains all rules, regulations,
rights and liabilities. Limitation Act is one of the important laws which
prescribes the limitation period in which the things should have been done.
Object of law of limitation is to make people sensible about their right to
claim interest in the property within stipulated and prescribed period. One
should not sleep over his right for years together. If Law does not fix time
limit for claiming rights or interest in property then there may be a chaos.
(4) The rationale for adverse possession rests broadly on the
consideration that title to land should not long be in doubt, the society will
benefit from some one making use of land the owner leaves idle and that
that person who come to regard the occupant as owner may be protected.
The maxim that law and equality does not help those who sleep over their
rights is invoked in support of prescription of title by adverse possession. In
other words, the original title holder who neglected to enforce his right over
the land cannot be permitted to re-enter the land after a long passage of
time. A situation lasting for a long period creates certain expectations and it
would be unjust to disappoint those who trust on them.
(5) The concept of adverse possession contemplates a hostile possession
i.e. The possession which is expressly or impliedly in denial of the title of
the true owner to the knowledge of the true owner and claiming the title as
an owner in himself by the person claiming to be in adverse possession. In
other words such hostile possession shall not be secret and person in
adverse possession must not acknowledge the title of the true owner but has
to deny the title of the true owner. The adverse possession must be capable
of being known by the parties interested in the property, though it is not
necessary that there should be evidence of the adverse possessor actually
informing the real owner of the former's hostile action. This shows that the
possession must be nec vi nec clam nec precario i.e. In continuity, in
publicity and in extent. This shows that permissive possession is not
hostile possession. So also mere long possession even for 100 years is
not adverse possession.
Concept and relevant provisions of Adverse possesion in
reference to the Law of Limitation :
(6) Section 3 of the Limitation Act says that Court will not take
cognizance of any suit, which is barred by limitation even if issue of
limitation is not taken as a defence. Thus, the law of limitation bars remedy
but not the right. But section 27 of Limitation Act is an exception to the
general principle of law of limitation and origin of concept of Adverse
possession. It reads as, if a person fails to file suit for recovery of
possession, within a period of limitation, his right to recover the possession
of that property also extinguishes. If such situation occurs, a true owner
extinguishes his ownership over the property. But at the same time property
can not left owner less. It must be in name of any other person or any other
person must be entitled to have right over it. This situation gives origin to
the concept of adverse possession. If any person possesses any property in
adverse to the interest of true owner and true owner fails to file a suit for
recovery of possession within a period of limitation, then the person in
possession becomes owner of property by way of adverse possession.
(7) In the case of Karnataka Board of Wakf- Vs.- GOI ( 2004) 10 SCC
779, it has been observed by Hon'ble Apex Court that, 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 rights over it and the person
having title omits or neglects to take legal action against such person for
years together. In the case of Amrendra Pratap Singh vs. Tej Bahadur
Prajapati,(2004) 10 SCC 65, it has been held that, the process of
acquisition of title by adverse possession springs into action essentially by
default or inaction of the owner. Thus, a method of gaining legal title to real
property by the actual, open, hostile, and continuous possession of it to the
exclusion of its true owner for the period prescribed by law is a adverse
possession. In order to elucidate the concept of adverse possession, we have
to consider Art 64 and 65 of the limitation Act.
(8) The law on adverse possession is contained in the Indian Limitation
Act. Article 65, Schedule I of The Limitation Act prescribes a limitation of
12 years for a suit for possession of immovable property or any interest
therein based on title. It is important to note that the starting point of
limitation of 12 years is counted from the point of time “when the
possession of the defendants becomes adverse to the plaintiff”. Article 65 is
an independent Article applicable to all suits for possession of immovable
property based on title i.e., proprietary title as distinct from possessory title.
Article 64 governs suits for possession based on possessory right. Twelve
years from the date of dispossession is the starting point of limitation under
Article 64. Article 65 as well as Article 64 shall be read with Section 27.
Necessary elements to constitute adverse possession.
(9) The necessary elements of adverse possession are discussed in detail
as infra -
1. Property :- There must be certain property, which may be movable
or immovable.
2. Nature of possession required over the property to constitute
adverse possession :- In order to constitute adverse possession, there must
be actual possession of a person claiming as of right by himself or by
persons deriving title from him. It is not sufficient to show that some acts of
possession have been done. The possession required must be adequate in
continuity, in publicity and in extent to show that it is adverse to the owner.
In other words the possession must be actual, visible, exclusive, hostile and
continued during the time necessary to create a bar under the statute of
limitation.
3. Possession must be continuous:- To constitute adverse possession,
possession must be continuous. But it is not necessary to establish
possession of every moment of the requisite period.
4. Possession must be with intention of ouster of the real owner :-
Animus possidendi necessary. Possession does not become adverse when
the intention to hold adversely is wanting. Person holding property by way
of adverse possession must publish his intention to deny right of the real
owner. His intention of adverse possession must be within notice,
knowledge of the real owner. If there are circumstances showing open and
notorious act of taking possession, knowledge may be presumed. Where the
assertion of right is secret and not open, the possession can not be held to be
adverse. In the case of Bhimrao Dnyanoba Patil Vs State of Maharashtra,
2003 (1) Bom. L.R. 322; 2003(1) All MR 565 ; 2003 (2) LJSoft 131, it has
been held that, unless enjoyment of the property is accompanied by adverse
animus, mere possession for a long period even over a statutory period,
would not be sufficient to mature the title to the property by adverse
possession.
5. Dispossession of the true owner :- In reference to this point the term
dispossession and discontinuance of possession are relevant. In
dispossession a person comes in, and drives out another from possession. In
discontinuance of possession, the person in possession goes out and is
followed into possession by others. To constitute discontinuance of
possession, there must be dereliction by the person who has right and actual
possession by another, whether adverse or not.
6. Possession of another essential for dispossession :- “Dispossession”
implies the coming in of a person and driving out of another person from
possession. “Dispossession” implies ouster and the essence of ouster is that
the person ousting is in actual possession of the property. The mere finding
that the persons are not in possession of the disputed property does not
decide the question, whether there was dispossession. Dispossession occurs
only when a person comes in and drives out another from possession.
What acts do not amount to dispossession :-
(10) To constitute dispossession, the other side must take and keep
possession with the intention to acquire the property for himself. Acts
between neighbours, occasional acts of interference which are naturally
explained by the desire of the person doing them to protect their own
property do not amount to dispossession.
1. Permissive possession does not amount to dispossession :- A true
owner is neither dispossessed nor does he discontinued his possession, if a
third person takes possession with his permission. It is however true that, if
the person in permissive possession changes his animus and continues to
hold with an open and continuous assertion of a hostile title, his possession
becomes adverse to the owner. A person put into the occupation of property,
or person put into permissive possession of that property, does not occupy it
as of right. In such cases, the owner of the property is properly considered
to be in possession. An owner who accommodates a poor relation in his
premises, does not necessarily part with the possession of his property
occupies by such poor relation. The possession of such poor relation is the
constructive possession of the owner and the later may retain and continue
to exercise his proprietary and possessory rights so as to rebut the
presumption that he has parted with the possession of the property and
prevent the operation of the statute of limitation. If an owner allows his
gardener, or servant, or work man employed upon his estate, to live in a
cottage thereon, rent-free, their possession is his possession, however long
it may be continued. If an owner, for motives of kindness or charity, allows
a relative or friend to occupy a cottage and land upon his estate, and the
owner, during such occupation, continues to exercise acts of ownership over
the land so occupied, e.g., he repairs the building, or cuts down plants,
trees, or causes drains to be made through the land or quarries away stone,
all such acts of dominion do not show that he had ever parted with the
possession of his property, although he had allowed another person to
occupy it.
2. Mere non-user by the owner is not dispossession :- The meaning of
the word “dispossession” is well settled. A man may cease to use his land
because he cannot use it, since it is under water. He does not, thereby,
discontinue his possession. Constructively his possession continues until he
is dispossessed and upon the cessation of the dispossession before the lapse
of the statutory period, constructively it revives.
Dispossession must be actual and the person dispossessing must
have physical control and exercise acts of ownership, which would mark
him as occupier. He must possess the desire to possess. Acts of
dispossession must be such as are inconsistent the character of the property
possessed and the purpose for which it is used by the owner. Only slight
acts of user on the part of the owner may, in certain circumstances be
sufficient to preserve his possession unless such acts are inconsistent with
the positive acts of exclusive ownership exercised by the trespasser. There
is no dispossession until someone else takes possession.
(11) It be remembered that the plea of Adverse Possession is always
based on facts which must be ascertained and proved. A person who claims
Adverse Possession must show on what date he came into possession ?
What was the nature of the Adverse Possession ? Whether the factum of his
possession was known to the then claimant ? And how long his possession
continued ? He must also show that his possession was open and
undisturbed. Unless plea of Adverse Possession has been specifically raised
in the pleadings, put in issue and then cogent and convincing evidence led
on the multitude on the points and opportunity to refute, the case made out
by the plaintiff availed of by the defendant, plea of Adverse Possession
cannot be allowed to be flung all of a sudden as a surprise for the first time
in appeal.
PRINCIPLE OF TACKING
(12) To tack means “to fasten”, “to stitch together”, “to annex” or
“to append”. In view of the principle of tacking if someone derives a title
from a person in adverse possession he can tack the period of adverse
possession enjoyed by earlier person so as to complete his title as an owner
by adverse possession for a total period of 12 years. Thus, a person can
usefully claim for the purpose of his adverse possession even the
adverse possession of his predecessor from whom he derives right.
However, a trespasser cannot tack adverse possession of earlier trespasser,
since second trespasser does not derive possession from earlier trespasser.
Accordingly, Five Judge Constitution Bench of the Supreme Court has held
in the case of Gurbinder Singh & another Vs. Lal Singh & another (AIR
1965 SC 1553).
Incidents in respect of adverse possession/no adverse possession.
(13) Where the owner revoked the licensee by issue of notice, but did not
take steps to evict him, mere service of notice does not create any cloud on
the title of the owner and no inference can be drawn that the owner intended
to abandon his title in the absence of any evidence to show that the licensee
claimed to be in possession in his own aright or against the wishes of the
owner (AIR 1979 All.54).
(14) As per Law of Pleadings by Mogha the adverse possession is one of
the defence. The period limitation is 12 years against private land and 30
years against Government land and starts from the date when the possession
of the defendant becomes adverse to the plaintiff. For adverse possession it
is necessary for the person to admit the title of the real owner and to
establish his open and hostile possession without any interruption. It is not
sufficient to plead that a party has been in adverse possession for 12 years,
it should be definitely alleged how and when adverse possession
commenced. Such as the defendant has dispossessed the plaintiff and has
been in possession continuously ever since, or the defendant has been open
and continuously in possession for more than 12 years to the knowledge of
the plaintiff, or the defendant has been in possession continuously for more
than 12 years so openly that either the plaintiff was aware of his possession
or ought to have been aware had he exercise due diligence.
(15) The legal position as regards the acquisition of title to land by
adverse possession has been succinctly stated by the Judicial Committee of
the Privy Council in Perry vs. Clissold (1907) AC 73, at 79: “It cannot be
disputed that a person in possession of land in the assumed character of
owner and exercising peaceably the ordinary rights of ownership has a
perfectly good title against all the world but the rightful owner. And if the
rightful owner does not come forward and assert his title by the process of
law within the period prescribed by the provisions of the statute of
Limitation applicable to the case, his right is for ever extinguished and the
possessory owner acquires an absolute title.”
(16) Adverse possession of the land is the process by which title to
another’s land is acquired without his permission. Adverse Possession is a
possession which is opposed to once interest of the real owner of the
property. It is possession in denial of the title of the true owner.
(a) Actual :- Adverse possession consists of actual occupation of the
land with the intent to keep it solely for oneself. Merely claiming the land
or paying taxes on it, without actually possessing it, is insufficient. Entry on
the land, whether legal or not, is essential. A trespass may commence
adverse possession, but there must be more than temporary use of the
property by a trespasser for adverse possession to be established. Physical
acts must show that the possessor is exercising the dominion over the land
that an average owner of similar property would exercise. Ordinary use of
the property—for example, planting and harvesting crops or cutting and
selling timber—indicates actual possession. In some states acts that
constitute actual possession are found in statute.
(b) Open and Notorious :- An adverse possessor must possess land
openly for the entire world to see, as a true owner would. Secretly
occupying another’s lands does not give the occupant any legal rights.
Clearing, fencing, cultivating, or improving the land demonstrates open and
notorious possession, while actual residence on the land is the most open
and notorious possession of all. The owner must have actual knowledge of
the adverse use, or the claimant’s possession must be so notorious that it is
generally known by the public or the people in the neighborhood. The
notoriety of the possession puts the owner on notice that the land will be
lost unless he or she seeks to recover possession of it within a certain time.
(c) Exclusive :- Adverse possession will not ripen into title unless the
claimant has had exclusive possession of the land. Exclusive possession
means sole physical occupancy. The claimant must hold the property as his
or her own, in opposition to the claims of all others. Physical improvement
of the land, as by the construction of fences or houses, is evidence of
exclusive possession.
(d) Hostile :- Possession must be hostile, sometimes called adverse, if
title is to mature from adverse possession. Hostile possession means that the
claimant must occupy the land in opposition to the true owner’s rights. One
type of hostile possession occurs when the claimant enters and remains on
land under color of title. Color of title is the appearance of title as a result of
a deed that seems by its language to give the claimant valid title but, in fact,
does not because some aspect of it is defective. If a person, for example,
was suffering from a legal disability at the time he or she executed a deed,
the grantee-claimant does not receive actual title. But the grantee-claimant
does have color of title because it would appear to anyone reading the deed
that good title had been conveyed. If a claimant possesses the land in the
manner required by law for the full statutory period, his or her color of title
will become actual title as a result of adverse possession.
(e) Continuous & Uninterrupted :– All elements of adverse possession
must be met at all times through the statutory period in order for a claim to
be successful. The statutory period, or “statute of limitations”, is the amount
of time the claimant must hold the land in order to successfully claim
“adverse possession”.
What is adverse possession?
(17) Adverse possession is a method, rooted in common law, of obtaining
title to land through use. The common law rules for adverse possession
have been codified under both federal and state statutes. A typical statute
allows a person to obtain title to land from the actual owner simply by using
the land. The use must be open for all to see. An example of openly using
land for the purposes of adverse possession would be if your neighbor built
a fence on your land with the intention of taking the property, paid your
property taxes, and though you knew about it you did nothing. If this
continued for a period of time set by state law, your neighbor may be able to
claim this property as his/her own. The theory is that by not disputing your
neighbor’s use of your property through a lawsuit, you, as the actual owner
have abandoned your rights to the property. Gaining title to land through
adverse possession requires strict compliance with the law, and can have
dramatic impact upon land ownership rights. The plea of adverse possession
is mixed question of law and fact. It is well settled law that before a party
can succeed in establishing title on the basis of adverse possession, a plea to
that effect must be specifically raised. It is observed by Hon'ble Apex
court that, “ It would be imperative that one who claims possession must
give all such details as enumerated hereunder. They are only illustrative and
not exhaustive.
a) who is or are the owner or owners of the property;
b) title of the property;
c) who is in possession of the title documents
d) identity of the claimant or claimants to possession;
e) the date of entry into possession;
f) how he came into possession - whether he purchased the property
or inherited or got the same in gift or by any other method;
g) in case he purchased the property, what is the consideration; if he
has taken it on rent, how much is the rent, license fee or lease
amount;
h) if taken on rent, license fee or lease - then insist on rent deed,
license deed or lease deed;
i) who are the persons in possession/occupation or otherwise living
with him, in what capacity; as family members, friends or servants
etc.;
j) subsequent conduct, i.e., any event which might have
extinguished his entitlement to possession or caused shift therein;
and
k) basis of his claim that not to deliver possession but continue in
possession.”
(22) Mere long possession of defendant for a period of more than 12
years without intention to possess the suit land adversely to the title of the
plaintiff and to latter's knowledge cannot result in acquisition of title by the
defendant to the encroached suit land. A possession is adverse only if in fact
one holds possession by denying title of the lessor or by showing hostility
by act or words or in cases of trespassers as the case may be as against
lessor or other owner of the property in question.
(23) Recently, in the case of Hemaji Waghaji Jat Vs. Bhikhabhai
Khengarbhai Harijan and others, Hon'ble Supreme Court observed thus:
"Before parting with this case, we deem it appropriate to observe that the
law of adverse possession which ousts an owner on the basis of inaction
within limitation is irrational, illogical and wholly disproportionate. The
law as it exists is extremely harsh for the true owner and a windfall for a
dishonest person who had illegally taken possession of the property of the
true owner. The law ought not to benefit a person who in a clandestine
manner takes possession of the property of the owner in contravention of
law. This in substance would mean that the law gives seal of approval to the
illegal action or activities of a rank trespasser or who had wrongfully taken
possession of the property of the true owner. We fail to comprehend why
the law should place premium on dishonesty by legitimizing possession of a
rank trespasser and compelling the owner to loose its possession only
because of his inaction in taking back the possession within limitation. The
same view was expressed by Hon'ble Apex Court in the case of State of
Haryana Vs. Mukesh Kumar and others decided on 30.09.2011.
Conclusion :-
(24) Adverse possession is a one of the meothod for acquiring title to the
real property by possession for a statutoty period under certain conditions.
The said period is governed by statute. Under this doctrine the person may
establish his ownership against the true owner after the fulfillment of all
legal requirements. The owner of the property must have actual knowledge
of adverse possession. The word continuity means regular uninterrupted of
the occupancy land. As per the Article 6 and 65 of the Limitation Act, the
prescribed period is 12 years and the prescribed period in case of
Government is 30 years. The starting point of limitation begins from the
expression of hostile animous amounting to denial of title of the real owner
to his knowledge. The onus is lies on the party to set up the title on the basis
of adverse possession. Presumption and probabilities cannot be substituted
for the evidence.
BURDEN OF PROOF
(1) Part III and chapter VII to IX of the Indian Evidence Act deal with
the burden of proof. Section 2 defines “proved” by stating that a fact is said
to be proved when after considering the matter before it the court either
believes it to exist or considers its existence so probable that a prudent man
ought under the circumstances of the particular case, to act upon the
supposition that it exists. Therefore the Proof means that “matter” from
which the court either believes the existence of a fact or considers its
existence so probable that a prudent man should act upon the supposition
that it exists. Burden to prove a fact is on the person who asserts it .
(2) The responsibility of producing the evidence in court is called
burden of proof. Section 101 to 114 of Evidence Act deal with burden of
proof. The burden of proof play very important role in parties. In the Indian
Evidence Act, there are 5 rules which decides the burden of proof. They are
provided in Section 101 to 105 of Evidence Act as under :
1. He who pleads must prove (S.101)
2. He who files must prove (S.102)
3. He who wish to prove a particular fact must prove (S.103)
4. He who wish to prove the main fact has to prove (S.104)
5. He who claims exceptions has to prove (S.105)
(3) Section 101 attempts to define burden of proof. This provision
proceeds to say in positive terms as to the person on whom burden of proof
lies whereas section 102 puts it in negative terms. These two provisions
deal with a general situation and lay down general propositions, whereas
section 103 to section 113-B deals with specific situations and can be
viewed as exceptions to the general rule. While dealing with the specific
situations, the provisions also mention about the presumptions which the
court may or shall presume as well as what would be conclusive proof.
(4) General rule that a party who desires to move to the Court must
prove all the fact necessary for that purpose (Ss. 101-105) is subject to two
exceptions:-
[a] He will not be required to prove such facts as are specifically
within the knowledge of the other party (S. 106); and
[b] He will not be required to prove so much of his allegations in
respect of which there is any presumption of law (S. 107-113), or
in some cases, all fact (S. 114) in his favour.
(5) The burden of proof lies on the party who substantially asserts the
affirmative of the issue and not upon the party who denies it. This rule of
convenience has been adopted in practice,not because it is impossible to
prove a negative,but because of negative does not admit of the direct and
simple proof of which the affirmative is capable. Moreover, it is but
reasonable and just that the suitor who relies upon the existence of a fact,
should be called upon to prove his own case. In the application of this rule,
regard must be had to the substance and effect of the issue, and to its
grammatical from, for in may cases the party, by making a slight alteration
in the drawing of his pleading, may give the issue a negative or affirmative
form, at his pleasure.
(6) The strict meaning of the term burden of proof (onus probandi) is
this, that if no evidence is given by the party on whom the burden is passed
the issue must be found against him. The expression burden of proof really
means two different things. It means (1) some times that the party is
required to prove an allegations before judgment is given in its favour. (2) It
also means that on a contested issue one of the two contending parties has
to introduce evidence. In criminal cases it is accepted principle of Criminal
Jurisprudence that Burden of proof is always on prosecution, it never
changes. This conclusion is derived from fundamental principle that, the
accused should be presumed to be innocent till he is proved guilty beyond
reasonable doubt and accused has got right to take benefit of some
reasonable doubt. If the accused succeeds in creating reasonable doubts or
shows preponderance of probability in favour of plea, the obligation on his
part gets discharge and would be entitled to be acquitted. There are many
cases in which the party on whom the burden of proof in the first instance
lies may shift the burden to the other side by proving facts giving rise to a
presumption in his favour.
(7) There are two sense in which the word burden of proof is used (a)
Burden of proof arising as matter of pleading i.e. called the legal burden
and it never shift. (b) Burden of proof which deals with the question as to
who has first to prove a particular fact and is called the evidential burden
and it is shift from one side to other. It is well settled that (1) Permissive
presumption i.e. presumption of fact (Natural) (2) Compelling presumption
i.e. presumption of law (Rebuttable/Artificial) (3) Irrebuttable presumption
of law i.e. conclusive proof (Mixed law and fact).
(8) The evidence in Civil litigation can be very well divided into
documentary and oral evidence and, therefore, the oral evidence which is
nearer to documents is acceptable in deciding the case. Many factors such
as “Character” (Section 52 of the Evidence Act) is irrelevant in Civil case
except in cases of damages which affect the amount to be granted.
However, opinion (Section 49) is relevant to prove the usage while as
(Section 47) opinion of the handwriting expert become relevant in Civil
cases. Section 40 of the Evidence Act read with the Section 11 of the C.P.C.
makes the previous Judgment relevant as it amounts to resjudicata. Then
entries in the public record made in performance of duty (Section 35) and
entries made in books of account made during the transactions or kept
regularly in the course of business (Section 34 of the Evidence Act) are
some of the provisions which are important in the determination of Civil
cases. In the same way the statement in maps, charts made by authorities
are also relevant.
(9) What is called burden of proof on the pleadings should not be
confused with the burden of adducing evidence which is described as
shifting. The burden of proof on the pleadings never shifts, it always
remains constant. The initial burden of proving a prima facie case in his
favour is cast on the plaintiff; when he gives such evidence as will support a
prima facie case, the onus shifts on to the defendant to adduce rebutting
evidence to meet the case made out by the plaintiff. As the case continues
to develop, the onus may shift back again to the plaintiff. It is not easy to
decide at what particular stage in the course of the evidence the onus shifts
from one side to the other.
(10) Where both parties have already produced whatever evidence they
had, the question of burden of proof ceases to be of any importance; but
while appreciating the question of burden of proof, misplacing of burden of
proof on a particular party and recording findings in a particular way will
definitely vitiate the judgment.
(11) Evidentiary admissions are not conclusive proof of the facts
admitted and they may be explained or shown to be wrong but they do raise
an estoppel and shift the burden of proof to the person making them or his
representative-in-interest.
(12) Where there is an admission by a party the burden of proof shifts
and it is for the party making the admission to explain it away.
Burden of Proof and Onus of Proof – Distinction.
(13) There is an essential distinction between burden of proof and onus of
proof; burden of proof lies upon a person who has to prove the fact and
which never shifts. Onus of proof shifts. Such a shifting of onus is a
continuous process in the evaluation of evidence.
(14) The burden of proof in any particular case depends on the
circumstances in which the claim arises. In general the rule which applies is
“Ei qui affirmat non ei qui negat incumbit probatio.” It is is an ancient
rule founded on considerations of good sense and should not be departed
from without strong reasons.
(15) This rule is adopted principally because it is but just that he who
invokes the aid of the law should be the first to prove his case; and party
because in the nature of things, a negative is more difficult to establish than
an affirmative.
(16) Burden of proof means two different things. It means sometimes
that a party is required to prove an allegation before Judgment can be given
in its favour; it also means that on a contested issue one of the two
contending parties has to introduce evidence. The burden of proof is of
importance where by reason of not discharging the burden which was put
upon it, a party must eventually fail. This burden will, at the beginning of a
trial, lie on one party, but during the course of the trial it may shift from one
side to the other. At the end of a case when both the parties have led
evidence and the conflicting evidence can be weighed to determine which
way the issue can be decided, the abstract question of burden of proof
becomes academic.
(17) The term onus probandi, in its proper use, merely means that, if a
fact has to be proved, the person whose interest it is to prove it, should
adduce some evidence, however slight, upon which a Court could find the
fact he desires the Court to find. It does not mean that he shall call all
conceivable or available evidence. It merely means that the evidence he
lays before the Court should be sufficient, if not contradicted to form the
basis of a judgment and decree upon that point in his favour.
(18) In criminal cases usually the burden of proof is on the prosecutor
(expressed in the Latin brocard ei incumbit probatio qui dicit, non qui
negat, "the burden of proof rests on who asserts, not on who denies"). This
principle is known as the presumption of innocence, and is summed up
with "innocent until proven guilty,"
(19) The accused has to bring merely this defence in the precincts of
preponderance of probabilities. This difference is because of the fact that it
is very difficult to bring the negative evidence. Regarding the shifting of the
legal burden, it is a fundamental principle of criminal jurisprudence that an
accused is presumed to be innocent and the burden lies on the prosecution
to prove the guilt of the accused beyond reasonable doubt. And that burden
never shifts but when the accused pleads insanity under Section 84, I.P.C.,
or any of the exceptions contained in I.P.C., like right of private defence
etc., it is the accused that has to prove the same, though the degree of proof
on the accused is not as high on the prosecution and it would be sufficient
for him to satisfy the test of a standard of a prudent man. In criminal trial
burden of proof never shifts to the accused. If a reasonable explanation is
given by the accused it would be upto the court to acquit the accused.
(20) When it is the question of an alibi, it is not a case, of proving the
existence of circumstances bringing the case within any of the general
exceptions or special exceptions of the Indian Penal Code, and therefore,
Section 105 of the Indian Evidence Act, does not apply. The section
applicable is Section 103 illustration of which specially mentions the case
of plea of alibi and provides that it is for the accused who pleads alibi to
prove it. Burden to prove plea of alibi is on accused pleading it. Burden is
on the accused who is setting up defence of alibi to prove it but even so, the
burden of proving the case against the accused is on the prosecution
irrespective of whether or not the accused have made out plausible defence.
Onus is on accused to substantiate plea of alibi and make it reasonably
probable.
(21) Presumption is an inference of fact, drawn from other known or
proved facts. There are two classes of presumptions, namely,
1) Presumptions of fact and 2) Presumptions of law. Presumptions of fact
are inferences which the human mind naturally and logically draws from
facts and they are generally rebuttable, unless they are conclusive. Sections
86 to 88, 90, 113A and 114 of the Evidence Act relate to presumptions of
fact. Presumptions of law are arbitrary consequences expressly annexed by
law to particular facts and may either be conclusive or rebuttable. Sections
41, 79 to 85, 89, 105, 107 to 113, 113B and 114A of the Evidence Act relate
to presumptions of law. Presumptions other than conclusive presumptions
are merely rules of evidence. Section 114 of the Evidence Act is of crucial
importance to Courts and the Court may presume the existence of any fact
which it thinks likely to have happened, having regard to-
(a) Common course of natural events,
(b) Human conduct, and
(c) Public and private business, --
in their relation to the facts of the particular case. The illustrations to
Section 114 of the Evidence Act are important, though they are not
exhaustive. Section 114 plays a vital role in the matter of appreciation of
evidence and arriving at conclusions.
(22) The main rules of burden of proof which are embodies in Section
101 to 104 could be stated as under :-
[1] One who asserts has to prove his assertions.
[2] Assertions must be about positive fact and not of negative
facts or events which did not happen.
[3] If law gives presumptions in favour of one party, the burden of proof
lies on other party to rebut the presumptions.
[4] If one wants to prove that his evidence is admissible, he
should prove the grounds or the circumstances about its
admissibility.
[5] This rule generally applies when evidence is admissible as
an exception to the general rules, such as under section
32,65 etc.
[6] Burden of proof never shifts.
[7] What shifts is onus or proof. Though in common parlance
burden and onus are synonymous words, they have
somewhat different meaning in legal language.
(23) General Principles regarding Burden of Proof
[1] The law does not recognize the principle of giving
the benefit of doubt to a party on whom the
burden of proof lies.
[2] The question of burden of proof at the end of the
case when both parties have adduced their
evidence is not of very great importance and the
Court has to come to a decision on a consideration
of all materials.
[3] The doctrine of onus probandi applies to a
situation in which the mind of the Judge
determining the suit is left in doubt as to the point
on which side the balance should fall in forming a
conclusion.
..26..
[4] It is not always necessary that the party who has
the burden must himself lead evidence. He may
sustain the onus cast upon him by the facts which
he may have elicited by cross-examination of the
other party's witnesses.
[5] Where the relevant facts are before the Court and
all that remains for decision is what inference is to
be drawn from them, the question of burden of
proof is not pertinent and this is more so at the
appellate stage.
[6] Where the notice to quit sent by registered post
was received by Treasurer and secretary of tenant
Company but register of letters received and
issued maintained by tenant Company was not
produced by tenant Company adverse inference
could be drawn against tenant Company.
[7] If the Court bases his finding only on
determination of question of burden of proof when
the parties have led evidence, when it bases its
Judgment on error of principle governing the
question of burden of proof, the Judgment is
wrong and may be set aside.
[8] A party accepting the burden of proof cannot be
allowed to complain in appeal.
[9] If it is not the grievance that the defective burden
of proof has caused a prejudice in the matter of
leading evidence, it would be duty of the Court
even at the appellate stage to correct the error of
wrongly thrown burden on the aggrieved party.
[10] So far as the rule of burden of proof goes, no
difference can be made between corporations and
individuals.
Latest Pronouncement on – Adverse Possession
BURDEN OF PROOF
T.P.R. Palania Pillai (Died) And ... vs Amjath Ibrahim Rowther And Anr. on 6 July, 1942
The Limitation Act, 1963
Annasaheb Bapusaheb Patil & Ors. ... vs Balwant And Balasaheb Babusaheb ... on 6 January, 1995
Section 8 in The Transfer of Property Act, 1882
Karthiyayani vs Ulv Kallyani And Ors. on 24 August, 1971
adverse possession
supreme court of india declaration of title
co-owner
co owner against co owner
ouster
co-sharer
title and possession
title through adverse possession
what is lawful possession
possession of co-owner
law of adverse possession
possession of co owners
hostile title
true owner
Madras High Court
Palanisamy vs Mariammal on 28 January, 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE: 28.01.2015
CORAM
THE HON'BLE MR.JUSTICE R.MAHADEVAN
S.A.No.1396 of 2003
Palanisamy ...Appellant
vs.
Mariammal ...Respondent
Second Appeal against the judgment and decree dated 30.04.2002 made in A.S.No.193 of 2001 on the file of the District Judge, Salem, confirming the judgment and decree dated 11.09.2001 in O.S.No.957 of 1998 on the file of the Principal District Munsif, Salem.
For appellant : Mr.P.Jagadeesan
For respondent : Mr.D.Shivakumaran
JUDGMENT RESERVED ON : 10.12.2014
JUDGMENT
The second appeal is filed by the defendant against the concurrent findings of the courts below.
2. The suit was filed by the respondent/plaintiff for partition claiming half share in the suit property. The plaintiff contended that the suit property was purchased by her and her husband. They had one daughter, chamundeshwari. The plaintiff and her husband separated due to a dispute. When the daughter was a minor, the plaintiffs husband sold the property in favour of the defendants father by executing the sale deed for himself and as guardian of the minor child. The plaintiffs husband had falsely declared that the plaintiff was no more. Claiming the sale deed to be invalid and not binding on her and the sale deed could only bind half share of her husband, the plaintiff had filed the suit for partition.
3. Resisting the claim, the defendant contended that the plaintiff is not the wife of late kulandaigounder, that the property was purchased by kulandaigounder in his name and in the name of his wife, that the kulandaigounder was in absolute possession, that he had mortgaged the entire property on 22-1-1975 and subsequently sold the property to the defendants father on 06-12-1976. Subsequent to the sale, the defendants father until his life time and subsequently the defendant has been in continuous, uninterrupted possession for 32 years and therefore claimed to have perfected the title by adverse possession.
4. Considering the oral as well as documentary evidence, preliminary decree has been passed in favour of the plaintiff. The same was also confirmed by the first appellate court. Aggrieved, the defendant is before this court.
5. At the time of admission, the following substantial questions of law were framed:
1.Whether or not the sale of the entire property by Kolandai Gounder under Ex.A2 in favour of the appellant's father operate against all the co-owners and consequently the appellant and his predecessors in title perfected their title to the suit property by way of adverse possession?
2.Whether the sales effected by a co-owner in favour of a stranger bars the right of the non-alienating co-owner also and the question of ouster does not apply to a stranger?
6. The learned counsel appearing for the defendant submitted that the courts below committed grave error in overlooking the fact that the plaintiff deserted her husband and their daughter who was in a tender age and after the efforts to trace her turned futile, she was presumed dead as she was unheard for more than seven years.
7. The learned counsel also drew the attention of this court towards the mortgage deed marked as Ex.B12 dated 22.01.1975 to agitate that the courts below failed to consider that the plaintiffs husband had mortgaged the entire property in favour of the defendants uncle and therefore, he alone was in possession of the property. The learned counsel further contended that earlier the plaintiffs husband and subsequently the defendants father and after his death, the defendant was in open, continuous and uninterrupted possession. The revenue records also stand in the name of the defendant and his predecessors, who have been paying the kist charges for more than 30 years and therefore, they have perfected the title by adverse possession.
8. The learned counsel for the appellant/defendant relying upon the judgments reported in AIR 1972 Kerala 229 (Karthiyayani .vs. U.Kallyani), 1967(1) MLJ 383 (P.N.Kailasanatha Mudaliar .vs. Viswanatha Mudaliar), 1942 (2) MLJ 321 (T.P.R.Palania Pillai (died) and others .vs. Amjath Ibrahim Rowther and another) and 1999(1) MLJ 173 (Sundaravalli Ammal Versus Perumal & Others) in support of his contention that the period for calculating the adverse possession would have to be reckoned from the date on which the entire property was mortgaged by the plaintiffs husband on 22.01.1975 or 06.12.1976, the date on which the property was sold to the defendants father and the notice of ouster would not be applicable in case of a stranger and therefore the defendant has perfected the title by adverse possession.
9. The learned counsel for the appellant further contended that both the courts erred in holding that the defendant had not specifically pleaded ouster when there was sufficient pleadings regarding adverse possession and hence sought the second appeal to be allowed.
10. Per contra, the learned counsel for the respondent/plaintiff relying upon the judgments in 2001(10) SCC 434 (Janaki Pandyani .vs. Ganeshwar Panda (dead) by LRs.), 2013 (8) MLJ 116 (T.A.Mohamed Moideen (died) .vs. T.A.Haja Hussain) and 2014 (5) MLJ 705 (G.Radhakrishnan .vs. Kanna Pillai) contended that the possession of a co-sharer cannot be held to be adverse in the absence of partition and unless hostile title is asserted to the knowledge of owner, the plea of adverse possession cannot be invoked. The learned counsel further contended that the courts below were right in holding that in the absence of specific pleadings and evidence regarding ouster and hostility, the plea of adverse possession could not survive. Hence, no interference is called for.
11. Heard both the parties and perused the records.
12. In the case on hand it is not in dispute that the property was purchased in the joint names of the plaintiff and her husband. Reasons may be different, but the fact remains that the plaintiff deserted her husband and daughter and she has come back to claim her right in the property after 28 years. However, before she could stake a claim to her share, the property was sold by Ex.B2 to the defendants father, declaring her to be dead in the sale deed. Even before the sale, the plaintiffs husband had mortgaged the entire property to one kuppan on 22-01-1975 by a registered deed and to discharge that mortgage, the property was sold to the defendants father.
13. In the above facts, the question that arises for the consideration of this court to decide the substantial questions of law is whether the above actions of the plaintiffs husband as a co-owner would oust the right of the plaintiff to seek the decree of partition.
14. The judgment relied upon by the learned counsel for the defendant in AIR 1972 Kerala 229 (Karthiyayani .vs. U.Kallyani) deals with the adverse possession against non-alienating co-owners by stranger put in possession under usufructuary mortgage. The relevant portion is as follows:
11. As regards the property other than that Covered by Ext. D11 the coowners were in possession ever since Charu died in 1117 and in regard to such property a stranger was put in possession under Ext D13 mortgage in 1119. The suit is filed more than 12 years of that date. The very fact that a stranger has been inducted into possession and consequently possession of the original coowners terminated would be sufficient to out the other coowners to notice of the conduct of the alienating coowners. Therefore ouster would be to their notice and possession of the transferee would be adverse from the date of Ext. D13 as regards the property which the mortgagee was put in possession of under Ext. D13. Hence I must agree with the courts below in finding that the claim of the plaintiff in regard to the area of the suit property excluding that covered by Ext. D11 is barred by limitation. "
15. In the judgment reported in 1967(1) MLJ 383 (P.N.Kailasanatha Mudaliar .vs. Viswanatha Mudaliar), this court held that that adverse possession i.e., ouster in such a case, started from the date of possession by the mortgagee and not from the date of ouster to the knowledge of the other members. The relevant paragraph at page reads as under:
It is significant to notice that the learned Judge has emphasized that the fact that the property as a whole is described in the schedule and that the schedule did not expressly say that what was sold was only the right, title and interest of the judgment-debtor, would indicate that what was sold was the entire property. From this decision, it is seen that so long as there is no exclusion of the share of the son, the sale of the entire property, as such described in the sale certificate, would be sufficient to convey the entire property. In the instant case, there is not only no exclusion of the shares of the sons, but what was sold was expressly the entire 2/3rd share using the all estate clause. Further, under section 8 of the Transfer of Property Act, in the absence of a different intention expressly or by necessary implication, a transfer of property should pass to the transferee all the interest which the transferor is capable of passing in the property. This principle underlying section 8, Transfer of Property Act, was applied by the Bench decision in Muthiah Chettiar v. Rajalu Ayyar Nagaswami Ayyar & Co., already referred to. For all these reasons, I hold that the Official Assignee intended and actually conveyed the 2/3rd share in the house including the plaintiff's shares and the first defendant also bargained for and purchased a 2 /3rd share in the entire house.
Even assuming that under Exhibit B-l, the shares of the plaintiffs were no conveyed, the plaintiff's rights, long ago, became barred by limitation and extinguished, as a result of ouster. Learned Counsel for the appellants drew my attention to some decisions in which it was held that as between co-owners, the mere fact that one co-owner is in possession of the entire property would not be sufficient evidence of ouster so as to extinguish the rights of the other co-owner. The principle of those cases will have no application in the instant case as in this case there has been an alienation by the Official Assignee which amounts to alienation by a co-owner to a stranger. In such a situation, the decision of the Bench of this Court in Palani Pillai v. Ibrahim Rowther, clearly applies. In that case in respect of property owned by the members of a Muhammadan family, some of the co-owners executed a usufructuary mortgage of certain specific items and the mortgagee entered into possession of the mortgaged items. It was held that adverse possession i.e., ouster in such a case, started from the date of possession by the mortgagee and not from the date of ouster to the knowledge of the other members. The principle of this decision is that while possession of one co-owner is in itself rightful and does not imply hostility, the position is different when the stranger is in possession and that his possession itself indicates that it is adverse to the true owners. It is unnecessary to refer to other cases on the point and it is sufficient to refer to the decision of the Supreme Court in Chenbasavana Gowd v. Mahabaleswarappa, in which the principle was applied in the case of a lease by the father including the son's share. Learned Counsel for the appellants lastly urged that in the instant case, the plaintiff's father and grand-father had been in occupation of the house and that that should be regarded as recognition of the plaintiffs right to a 5 /21 share. This argument is totally devoid of substance. So far as the 1st plaintiff is concerned, in the same place he was living in a rented house and came to occupy the house in 1956. In the affidavit which he filed in Appeal No. 65 of 1961, Exhibit B-9, he has stated that it was only in 1951, he came to know that the suit property was his family property and that it was only when he began to live in a rented house that some villagers told him that he need not live in a rented house when he has himself got a house meaning the suit house, in his own right. This shows that till 1956, the 1st plaintiff never knew that he had a right in this house. Under these circumstances, it is impossible to recognise the possession, if any, of the plaintiffs father or grand-father as referrable to the plaintiffs right. Unless the plaintiffs are able to establish that the first defendant allowed the plaintiffs father and grandfather to remain in occupation of the house, recognising the plaintiffs right in pursuance of an arrangement with the plaintiffs, express or implied, the possession of their father, even if true, would not enure for the benefit of the plaintiffs. This question has been considered by the learned District Munsif in paragraphs 12 and 13 of the judgment. The conclusion arrived at by him is correct and is supported by adequate and satisfactory evidence, with the result that the plaintiffs right, if any, must be deemed to have been extinguished by ouster and adverse possession from the year 1930. I have no doubt in my mind that all these thirty years, the 1st plaintiff himself knew that the entire 2 /3rd share in the house had been told to the first defendant. It was only as a result of recent misunderstandings, the plaintiffs had embarked upon this frivolous and vexatious litigation. Looked at from any point of view, the plaintiffs suit lacks substance and has been rightly dismissed."
16. In the judgment reported in 1942 (2) MLJ 321 (T.P.R.Palania Pillai (died) and others .vs. Amjath Ibrahim Rowther and another), the Full bench of this court held that adverse possession as against the members cannot be said to begin only from the date of ouster to their knowledge. The relevant paragraphs are extracted hereunder:-
"2. There is a conflict of authority in this Court on the question whether it is necessary in order to support a plea of adverse possession that knowledge of adverse possession must be proved. The appeal came in the first instance before King, J., and in view of this conflict he has referred to a Full Bench the following question:
Where some co-owners usufruetuarily mortgage specific items of property held by the members of a Mohammadan family and the mortgagee enters into possession of the mortgaged items under his mortgage deed, is a suit to recover the share therein by other members of the same family barred by article 144 of the Limitation Act at the end of twelve years of such possession or does adverse possession begin as against the other members only from the date of ouster to their knowledge?
The weight of authority in this Court is in favour of an affirmative answer being given to the first part of the question. There are decisions of the Calcutta and Bombay High Courts to the same effect, and support for the majority view is also to be obtained from the decision of the Privy Council in Secretary of State for India in Council v. Debmdra Lal Khan (1933) 66 M.L.J. 134: L.R. 61 I.A. 78 : I.L.R. 61 Cal. 262: (P.C.).
5. ...... But it was also pointed out that while the possession, of one co-owner is, in itself, rightful, and does not imply hostility the possession is different when a stranger is in possession. The possession of a stranger in itself indicates that his possession is adverse to the true owners.
7. Possession to be adverse must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor, as the Privy Council pointed out in Secretary of State for India in Council v. Debendra Lal Khan (1933) 66 M.L.J. 134: L.R. 61 I.A. 78: I.L.R. 61 Cal. 262 (P.C.). As already indicated we are of the opinion that the judgment lends strong support for the majority opinion of this Court. In that case a zamindar claimed against the Crown title to a fishery in a navigable river by reason of adverse possession. The learned Counsel who appeared for the Crown advanced the argument that adverse possession should be shown to have been brought to the knowledge of the Crown, but in their Lordships' opinion there was no authority for this requirement. It was sufficient that possession was overt and without any attempt at concealment so that the person against whom time was running ought if he exercised due vigilance to be aware of what was happening.
8. When one of several co-sharers lets into possession a stranger who proceeds to cultivate the land for his own benefit the other co-sharers must, unless they deliberately close their eyes, know of what is going on., but if they are so regardless of their own interests they must take the consequences. Where a person who is in possession under a usufructuary mortgage granted by one of several coparceners remains in possession of the land and cultivates it for years, a position which we have here, there can be no doubt that the requirements of continuity, publicity and extent for adverse possession are fully complied with. Consequently we would answer the first part of the question referred in the affirmative and the latter part in the negative. It follows that the decisions in Muthukrishna Aiyangar v. Sankaranarayana Aiyar (1914) 27 M.L.J. 600, Ramachandra Deo v. Balaji (1940) 1 M.L.J. 673: I.L.R. (1940.) Mad. 245. Venkatarama Aiyar v. Subramania Sastri (1923) 20 L.W. 122. Moidin v. Kunhalikutti (1935) 42 L.W. 798. and Govindaswami Chettiar v. Kothandapani Chettiar (1926) 52 M.L.J. 203. must so far as they indicate a contrary opinion be deemed to be overruled. "
17. In the judgment reported in 1999(1) MLJ 173 (Sundaravalli Ammal Versus Perumal & Others), this court has held that the period of adverse possession starts from the date of sale. The relevant paragraphs are as follows:
4. In this second appeal we are concerned only with respect to items 1 and 2 of the plaint A schedule property, which items were denied to the plaintiff on the ground that the defendants 3, 4, 7 and 8 had prescribed title by adverse possession. Since I have to assess the correctness of the said judgment and decree of the lower appellate court, I am not going into the other facts. It is not in dispute that these defendants 3, 4, 7 and 8 derived title from the first defendant under the sale deeds. The plaintiff/appellant claims right in the said property both as a heir of Arumugam Pillai and also on the basis of the Will alleged to have been executed by Pappathi Ammal on 9.1.1973. But the courts below have concurrently disbelieved the same. Against the said finding, there was no appeal before the lower appellate court by the plaintiff.
6. Though the plaintiff/appellant claims right in the property through Pappathi Ammal, the sale of the suit properties by the first defendant is as early as in 1962 under Ex.B-2. From the date of purchase of the said properties, the contesting defendants are in exclusive possession, adverse to the interest of the said Pappathi Ammal. So, the submission of the learned counsel that the limitation will start only from the date of death of Pappathi Ammal cannot be countenanced.
7. The Apex Court, in the decision in Annasaheb Bapusaheb Patil v. Balwant Babusahed Patil Annasaheb Bapusaheb Patil v. Balwant Babusahed Patil Annasaheb Bapusaheb Patil v. Balwant Babusahed Patil , A.I.R. 1995 S.C. 895 has held as follows:
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 title at all. There cannot be any dispute about the proposition 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. But in this case, the contesting defendants were not having any valid title with respect to the share of Pappathi Ammal, through whom the appellant/plaintiff claims right in the property. So, with respect to that share of the property, it cannot be said that the contesting defendants were in possession of the same with valid title. So, they cannot (sic.) claim any adverse possession against the said Pappathi Ammal or the plaintiff.
11. The Bombay High Court also has taken similar view in Anjanabai v. Jaswantibai , A.I.R. 1993 Bom. 134 following the decision of the Full Bench decision of this Court, in Palania Pillai v. Amjath Ibrahim , A.I.R. 1942 Mad. 622:(1942)2 MLJ. 321 (F.B.)which runs as follows:
The decision of the Full Bench in 1899 I.L.R. 23 Bom. 137, would squarely apply to the facts involved in the present case. The very fact that the stranger has been inducted into possession and consequently, the possession of the co-owners terminated would be sufficient to put the other co-owners to notice of the conduct of the alienating co-owners. Therefore, ouster would be to their notice and the possession of transferee would be adverse from the date of possession."
18. Per contra, learned counsel for the respondent/plaintiff has relied upon the following judgments in support of his contention that the possession of a co-sharer cannot be held to be adverse in the absence of partition and unless hostile title is asserted to the knowledge of owner, the plea of adverse possession cannot be invoked:-
(i) In the judgment reported in 2001(10) SCC 434 (Janaki Pandyani .vs. Ganeshwar Panda (dead) by LRs.), the Hon'ble Apex Court has held that adverse possession cannot be claimed by one co-sharer against another so long as the property has not been partitioned. The relevant portion is as follows:
2. After we heard learned counsel for the appellant and perused the record, we are of the view that the judgment of the High Court is not sustainable in law. The High Court found that Ext. B-1 was not signed by Madhusudan Panda and was not proved. Therefore, the High Court cannot make Ext. B-1 as the basis for acquisition of title by adverse possession. This approach of the High Court in holding that the defendants have acquired title to property by adverse possession was erroneous. Further, merely because the defendants had converted the thatched house into a tiled house and also dug a well, it does not mean it was an ouster of the plaintiff. Admittedly, the property in dispute is a joint family property and the plaintiff and the defendants are the co-sharers of the property. In fact, there is no partition of the property and so long as the property is not partitioned, it continues to be a joint Hindu family property. Under such circumstances, one co-sharer cannot claim adverse possession against the other co-sharer. In view of the said legal position, the High Court fell in error in holding that the defendants had acquired title in the property by adverse possession. "
(ii) In the judgment reported in 2013 (8) MLJ 116 (T.A.Mohamed Moideen (died) .vs. T.A.Haja Hussain), this Court has held that Simply because twelve years' period might have got expired without one of the co-sharers being in possession, that would not attract the concept 'ouster' in favour of the possessor or owner and there should be clear proof to demonstrate and display that the co-owner in possession started enjoying the property as his own property detriment to the interest of the other co-sharers not in possession. The relevant paragraphs are extracted hereunder:-
"7. No doubt, so far as this case is concerned, the pleadings before the court were not adequate. However, this a suit for partition, in stricto sensu, the rules relating to the pleadings cannot be bull-dozed in and throw the baby along with the bathe water. The question of adverse possession, in matters of this nature would not arise in view of the decision of the Hon'ble Apex Court reported in (2007) 4 MLJ 912 (SC) (P.T.Munichikkanna Reddy and others vs. Revamma and others). Certain excerpts from it would run thus:
"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; City of Rock Springs v. Sturm.)
6. Efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which right to access the court expires through efflux 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 ones 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 colour of title. (See American Jurisprudence, Vol. 3, 2d, p. 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 cannot be given a complete go-by. Simple application of limitation shall not be enough by itself for the success of an adverse possession claim.
8. Therefore, to assess a claim of adverse possession, two-pronged enquiry is required:
1. Application of limitation provision thereby jurisprudentially wilful 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.
9. 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 has also palpably affected the developments in this regard.
New consideration in adverse possession law
10. In that context it is relevant to refer to JA Pye (Oxford) Ltd. v. United Kingdom wherein the European Court of Human Rights while referring to the Court of Appeal judgment JA Pye (Oxford) Ltd. v. Graham 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.
14. Importantly, intention to possess cannot 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 materialise.
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. Govt. of India in the following terms: (SCC p.785, para 11) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. 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.
22. 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.
32. 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. Bibi Sakina in the following terms: (AIR p.1256, para 5) 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."
A bare poring over and perusal of the said precedent would highlight and spotlight the fact that possession by one co-owner amounts to possession by the other co-owner. Simply because twelve years' period might have got expired without one of the co-sharers being in possession, that would not attract the concept 'ouster' in favour of the possessor or owner. There should be clear proof to demonstrate and display that the co-owner in possession started enjoying the sad property as his own property detriment to the interest of the other co-sharers not in possession."
(iii) In 2014 (5) MLJ 705 (G.Radhakrishnan .vs. Kanna Pillai), this court has held that the person who claims adverse possession had to plead and prove that possession was nee vi, nee clam, nee precario, ie., peaceful, open and continuous. The relevant paragraphs are as follows:-
"6. In order to answer the issues raised in the appeal, it is necessary to consider the essential requirements as to the pleadings regarding adverse possession, which has been laid down by the Apex Court in the case of Karnataka Board of Wakf Vs. Government of India & others (2004) 10 SCC 779.
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 It would be relevant to point out that these details are lacking in the pleadings of the present case.
10. It is not the case of purchasers/defendants 2 to 5 that the suit property is a separate property of the first defendant. In other words, they have admitted that it is the joint family property belonging to the plaintiff and the first defendant. Contending that the father- plaintiff was living away from his son / first defendant and that he was not in physical possession of suit property for several years and that he has not objected to the execution of sale deeds by the first defendant, the defendants contended that the first defendant has prescribed title by adverse possession.
10.1. This plea is incorrect. Every co-owner has equal right to the possession of every bit of joint property and none of them can exclude the other from the enjoyment thereof. Many a time joint possession is inconvenient. There may be arrangements for the exclusive enjoyment of different portions of the common property. Again, a co-owner may possess exclusively any property which had not been hitherto enjoyed by any other co-owner. For want of knowledge or for other reasons, the other co-owners would not have protested. That does not mean that they have consented or relinquished their right over the property. The exclusive possession must point out any act which is inconsistent with joint ownership.
12. When a co-owner set up a plea of ouster to prove adverse character of such possession by asserting affirmatively and that too, to the knowledge of other members that he asserted the exclusive hostile title and if the possession continues for statutory period of more than twelve years, then only, the co-owner / purchaser from the co-owner can succeed. Therefore, it is necessary to find out whether the burden of proof has been discharged either by the first defendant or by defendants 2 and 3 who are claiming title through the first defendant.
12.1. The burden of proof lies on the party who claims adverse possession. The defendants had to plead and prove that the possession of the first defendant was nee vi, nee clam, nee precario, i.e., peaceful, open and continuous. This has been so held in the case reported in (1993) 4 SCC 375 (Parsinnin vs. Sukhi), cited supra.
12.2. As per the decision reported in (1995) 4 SCC 496 (Vidya Devi vs. Prem Prakash) (in para 27 and 28), in case of co-owner, three elements are necessary for establishing the plea of ouster.
declaration of hostile animus;
long and uninterrupted possession of the person pleading ouster; and exercise of right of exclusive ownership, openly and to the knowledge of other co-owner.
12.3. One who holds possession on behalf of another, does not, by mere denial of others title, make his possession adverse so as to give himself the benefit of statute of limitation. This is the proposition held in the decision reported in (1995) 2 SCC 543 (Annasaheb Bapusaheb Patil Vs. Balwant).
12.4. It has been held, in the context of co-sharer, in (1980) 4 SCC 396 (Karbalai Begum vs. Mohd. Sayeed), that mere non-participation in the rent and profits of the land of a co-sharer does not amount to ouster.
13. If the facts of this case are tested on the bed rock of the principles enunciated by the Supreme Court, it will be clear, as already stated, that the case of the defendants suffer from lack of pleadings and evidence.
14. Just because the plaintiff was living away from the first defendant, just because the plaintiff married a lady of his own choice and just because the plaintiff did not live jointly with the first defendant, it will not lead to the conclusion that the plaintiff is not a joint family member. The first defendant has not proved the intention to claim the property adverse to the interest of the plaintiff, leading to the invasion of the rights of the plaintiff.
15. The Courts below have rightly appreciated the legal proposition in proper perspective and therefore, there are no grounds to interfere with the judgments and decree of the Courts below.
16. In the result, the second appeal is dismissed. The judgement and decree dated 16.09.2004 in A.S.No.20 of 2004 before the Sub Court, Panruti, confirming the judgment and decree, dated 27.02.2004 in O.S.No.107 of 2002 on the file of the District Munsif Court, Panruti, are are confirmed. No costs. Consequently, C.M.P.No.10677 of 2005 is also dismissed."
19. In the judgments relied upon by the appellant/defendant, it has been laid down that the sale by the co-owner to a stranger of the entire property would amount to ouster of the rights of other co-owner if he/she does not challenge the same within the period of limitation. The judgments also lay down that the period of limitation would have to computed from the date on which the stranger/mortgagee was put into possession. However, it is to be noted here that the plaintiffs husband had misrepresented in the sale deed that the plaintiff had passed away and on that basis claimed himself and his daughter to be the absolute owners. The defendant also accepted that his father is a cousin of the plaintiff. Therefore, the father of the defendant would have known the truth that the plaintiff was still alive. As rightly held by the courts below, the mortgage and alienation was also within seven years from her disappearance and therefore, the presumption is dead also would not hold water. The sale of the plaintiffs share is therefore invalid. Hence, in the facts of this case, this court is of the view that the plea of ouster by a co-owner of the rights of other co-owner is unsustainable. Hence the judgments relied upon by the learned counsel for the appellant/defendant would not come to his aid in the present facts. To plead and succeed that a person has perfected his tittle by adverse possession, he has to necessarily prove that he had held the property in hostile to the title of the true owner with his knowledge. The same is evident from the judgments relied upon by the learned counsel for the respondent/plaintiff. Similarly, mere changes in the revenue records would not entitle the co-owner or the purchaser to claim that he had perfected the title by adverse possession in the absence of proof of satisfying that the defendant or his father was nee vi, nee clam, nee precario, i.e. peaceful, open and continuous. The word open would signify the hostility of title to the knowledge of the true owner. Similarly, when the title of the owner is questioned, there cannot be any plea of perfection of title by adverse possession. Also, from the evidence, it is also clear that the defendant has not proved that there has been some changes to the land. The land remains to be vacant. The defendant has also not proved that he has the knowledge of the plaintiff asserted the hostile title. Nevertheless, the plea of ouster was not even pleaded. Hence this court finds no reasons to interfere with the judgements and decrees of the courts below. The substantial questions of law are answered in negative.
20. In the result, the second appeal is dismissed thereby confirming the concurrent judgments and decrees of the courts below. No costs.
28.01.2015 Index : Yes/No.
Internet : Yes/No.
mra To
1. The District Judge, Salem.
2. The Principal District Munsif, Salem.
3. The Section Officer, V.R. Section, High Court, Madras.
anil end
