Wednesday 26 December 2012

The burden to prove acquisition of title by adverse possession being on the party who sets up such a case


It seems  that while  framing  the issues, pleadings of  the
parties were read in piece­meal.  It also appears that  fundamentals   of
law of burden of proof   were ignored which resulted in framing of as
many as 16 issues. The case of the plaintiffs is that they are the owners
of   the   suit   plot;   whereas   the   defendants   claimed   that   they   are   in
possession of the same and acquired  title to it by  adverse possession.
Since the suit based upon title is governed by article 65 of the Limitation
Act and the limitation starts from the date when the possession of the
defendants becomes adverse, the question of framing  issue of limitation
does  not  arise.  The  burden  to  prove  acquisition  of  title  by    adverse
possession being on the party who sets up such a case and limitation of
12 years starts when the possession of such party becomes adverse to its
true owner, only such issue was required to be framed.


IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FIRST APPEAL No. 212/1996
Rukhamini Pandurang Sansthan, Yavatmal

...V E R S U S...
1. The State of Maharashtra, represented by
Collector, Yavatmal.
Citation 2012(6)MH.L.J 679(Bom)

2] The suit property is the land bearing Plot No.1 in Nazul
Sheet No.44 of village Pimpalgaon. One Shriram  Yadavji Sonar was the
original owner of land survey no.53, area 23.23 Acre­Gunthas (A.G.).
On 19.2.1904 he executed a will bequeathing this entire field in favour
of Rukhamini Pandurang Sansthan, at Yavatmal.   Later on Rukhamini
Pandurang  Sansthan  became  a  public  trust  under  the  Bombay  Public
Trust Act bearing registration No.A­145/Yavatmal. Out of the total area
of   23.23   A.G.   one   acre   on   South­Eastern   corner   was   put   to   non­
agricultural use after obtaining necessary permission vide revenue case
No.2/XXVIII/1930­31 which is the subject matter of the present suit. In
the year 1962 vide land acquisition case No.5/65/61­62­Yavatmal, the
land area 21.5 A.G. was acquired by the Government of Maharashtra for
establishment of Industrial Training Institute [in short I.T.I.]. The award
to  this effect was passed on 30.3.1967. Possession of  the same     was
handed  over   to  the   concerned  authority.   From   the   said   field   survey
no.53, 18 gunthas land was acquired for Yavatmal – Dhamangaon Road.
Ultimately, the plaintiffs' ownership remained only over the suit plot. In
the   year   1991   the   plaintiffs   received   a   notice   from   the   Collector,140812FA212.96.odt
3
Yavatmal   demanding   non­agricultural   assessment   of   Rs.26,000/­   in
respect of the suit plot. This made the office bearers of the trust to search
for the records and also identify the suit plot. It was noticed that along
with the land area of 21.5 A.G., the  possession of the suit plot was also
taken over   by the defendants and made constructions over  the same.
After being satisfied from the record about ownership etc over the suit
plot, notice under section 80 was issued to the defendants calling upon
them to hand over the possession of the same. It was neither replied nor
complied with. Therefore, the suit. 
3] The defendants did not dispute the entity of the plaintiffs
as a public trust. It was not disputed that under acquisition proceedings
land  area   21.5  A.G.  was  acquired  out  of   the   field  survey  no.53  for
establishment of  Industrial Training  Institute. However, it was denied
that one acre land i.e.  the suit plot was converted  to non­agricultural
use.   As   regards   the   rest   of   the   averments,   the   defendants   showed
ignorance.
4] The   defendants   put­forth   a   specific   case   that   while
handing over possession of 21.5 A.G.  of land out of field survey No.53,
possession   of   this   one   acre   land   –   suit   plot   was   also   given   to   the
defendants on 25.3.1963. Since then defendants are in possession of the
suit plot and as such acquired  title  to it by   adverse possession. Then
there is a specific admission that the land area of one acre – suit plot is
being used by the defendants particularly by defendant no.2, however,
denied that it is being used without any right, title or interest thereon, as
alleged by the plaintiffs. This fact is further admitted,  in a different form
by  pleading  that  since  the  suit  plot was lying  fallow  and idle, while
handing over  the possession of 21.5 A.G. land, it was also voluntarily
given in possession of the defendants by the plaintiffs on 25.4.1963.
5] On the basis of the rival pleadings, the learned trial court
framed as many as 17 issues. The first being about proper valuation of
the   suit,   which   came   to   be   deleted   later   on.   The   parties   adduced
evidence  oral  as well  as  documentary.  On  behalf  of  the  plaintiffs its
trustee – P.W. 1 Dattatraya Kulkarni entered the witness box. In rebuttal
three witnesses, mainly the office bearers of I.T.I. were examined. After
considering   the   evidence   brought   on   record,   the   learned   trial   court
answered nine issues relating  to  title  to  the suit plot in  favour of  the
plaintiffs.   The   issues   no.12,   13,   14   which   cast   burden   upon   the
defendants  to   prove   acquisition   of   title   to  the   suit   plot  by    adverse
possession and  to prove  that suit was  time barred, were answered in
their favour. This resulted in dismissal of the suit and hence this appeal.
6] Mr.   Khare,   the   learned   counsel   appearing     for   the
appellants criticized the approach of the trial court particularly about the
findings   given   on   the   point   of   limitation   and   adverse   possession.
According to him, the learned trial court was totally oblivious of a well
defined   distinction   between   the   term   “adverse   possession”   and
“possession   simplicitor”.   The   possession   howsoever   long   cannot   be
adverse unless it is coupled with 'animus possidendi'. It further required
that  such  possession  should be hostile  to its  true  owner. These  basic
requirements having not been satisfied by the defendants and therefore,
the judgment and decree is not sustainable in law, he urged.
7] Mr.   Bhagde,   the   learned   A.G.P.   appearing   for   the
defendants / appellants herein, supported the judgment and decree. He
submits   that   right   from   the   year   1963   defendants   have   been   in
possession of the suit plot. They have established by adducing evidence
that  said possession was continuous, uninterrupted  and  as  an owner.
Plaintiffs were aware of the possession of the defendants over the land
area 21.05 A.G.   as well as  the suit plot.  In  that view of  the matter,
learned  trial  court  did  not  commit  any  error  while  answering issues
no.13 and 14 in favour of the defendants, he urged.
8] It seems  that while  framing  the issues, pleadings of  the
parties were read in piece­meal.  It also appears that  fundamentals   of
law of burden of proof   were ignored which resulted in framing of as
many as 16 issues. The case of the plaintiffs is that they are the owners
of   the   suit   plot;   whereas   the   defendants   claimed   that   they   are   in
possession of the same and acquired  title to it by  adverse possession.
Since the suit based upon title is governed by article 65 of the Limitation
Act and the limitation starts from the date when the possession of the
defendants becomes adverse, the question of framing  issue of limitation
does  not  arise.  The  burden  to  prove  acquisition  of  title  by    adverse
possession being on the party who sets up such a case and limitation of
12 years starts when the possession of such party becomes adverse to its
true owner, only such issue was required to be framed. Be that as it may.
9] Points arise for my consideration are :
1]  Whether the plaintiffs are the owners of the 
suit plot?
2] Whether  the defendants   acquired  title  to  the  
suit plot by   adverse possession?
10] By pleading that the possession of the suit plot was also
surrendered along with the land acquired and they acquired title to it by
adverse possession, the defendants to a great extent discharged the onus
which in fact lay upon the plaintiffs to prove the title to the suit land and
added  to  this are  findings recorded by  the  trial court in  favour of  the
plaintiffs. It is  relevant to reproduce contents in the written statement at
paragraph 3 & 4 as under:
3. .....It is submitted  that  the possession of 21 acres 5
gunthas land of field S.No.53 and other 1 acre which is subject
matter of this suit of the entire land was given  in possession of

defts. on 25.3.63 and accordingly possession receipt for 21 acres
5 gunthas was given to the Revenue Authority and from that date
suit   land   of   1   acre   is   in   possession   of   defts.   no.   1   to   4
continuously,   peacefully   without   any  interruption   as  a  owner
thereof up to this date, and the deft. have acquired the right by
adverse possession in it, of full and complete ownership.....
.....It is true that the said land of 1 acre which is plot
is being used by the defts. and particularly by the defts. no. 2 but
it is denied that it is being used without any right, title or interest
thereon as alleged by the plff.”
“4. It is admitted that the defts. no. 2 has made barbed
wire fencing to the land which was acquired by the State and put
in possession including 1 acre of land more also referred to above
as   suit   land.   It   is   admitted   that   while   making   various
construction works  the  approach roads are  constructed by  the
defts. no. 2 as owner thereof and the deft. no. 2 has fixed barbed
wire fencing to plot no.1, sheet no.44, but it is denied that it was
done without any right, title, interest thereon as alleged by the
plff.......
.....The land was lying fallow and idle and it seems
that while giving the possession of 21 acres 5 gunthas of land,
this 1 acre of land was also voluntarily given in possession of the
defts. by the plff. on 25.3.63 as referred above, which is situated
east­south corner of the said field and may have been numbered
as plot no.1 sheet no.44 as alleged by the plff.....”
.....It is admitted that because of the fencing to 1 acre
of the land i.e. plot no.1, sheet no. 44 particularly on the eastern
and southern side of the same, it has become impossible for the
plff. to enter into its plot as alleged, but it is submitted that the
plff. has lost all the right, title and interest in the property i.e. 1
acre of land which is Nazul plot no.1, sheet no.44 referred  to
above as suit land because plff. has totally lost its right, title and
interest by virtue of adverse possession by the defts. of the said
land from 25.3.63 because the deft. no. 1 to 4 are in exclusive
possession of the said land.....” 
11] Exhibit 51 is the notice issued by the plaintiffs from the
office   of   the   Collector,   Yavatmal   calling   upon   them   to   deposit   the
amount in respect of non­agricultural assessment in respect of the plot
no.1 in  a  Nazul  Sheet  No.44  area   43,6700  sq.ft.  at  Yavatmal.    The
amount demanded was Rs.32,528/­. Exhibit 52 is the Tipan Utara of the
land survey no.53. It shows that the total area of the land was 22.23 A.G.
Exhibit   53   is   the   original   order   passed   by   the   Assistant   Settlement
Officer. This   reveals that one acre land out of  field survey no.53 was
converted to non agricultural use vide Revenue case No.267/1­B/1930­
31. Exhibit 54 is the map drawn by the surveyor attached to the office of
the District Land Records. Suit land has been shown in green colour with
the remark that the same is in possession of the defendants. This map is
in  pursuance   to  the measurement  dated  15.6.1992.  This  evidence  is
supported by  the oral evidence of P.W.1 Dattatraya Kulkarni. On  this
issue no evidence has been adduced in rebuttal. On the contrary Shrikant
Lakhe (D.W.1) who is  witnesses  for the defendants admitted in  cross
examination that the land survey no.53,  admeasured  22.23 A.G.  He
came to know that the disputed one acre plot was numbered as plot no.1
during nazul survey and this is out of survey no.53. Third witness of the
defendants i.e. D.W.  3 Manohar  simply  showed ignorance  about  the
location of the suit plot and whether they are in possession of the same.
Thus having considered  the evidence brought on record and particularly
stand   taken   in   the   defence   which   I   have   reproduced   in   extenso   in
preceding paras  of this judgment, the findings recorded by the learned
trial court on issue nos. 1  to 5 and 8  to 11, appear  to be very much
consistent with the evidence on record.
12] Now, I shall advert to the point of limitation and adverse
possession. The suit based upon  title is governed by article 65 of  the
Limitation   Act.   Limitation   of   12   years   commences   from   the   date,
possession of  the defendant becomes adverse  to  the plaintiff. Onus is
entirely   on   the   party   who   sets   up   a   title   on   the   basis   of   adverse
possession.    Presumptions  and  probabilities  cannot  be  substituted  for
evidence.  It  must   be   shown   by   clear   and   unequivocal   evidence   that
possession was hostile to its true owner and amounted to a denial of his
title to the property claimed. Mere long possession for a period of more
than 12 years cannot result in  acquisition of title by adverse possession.
What is material is 'animus possidendi'. It seems  that  the learned  trial
court   could   not   distinguish   between   the   'possession   simplicitor'   and
'adverse  possession'  and  therefore  fallen in error while  recording  the
finding   that   the   suit   is   barred   by   limitation   and   defendants   have
perfected title to it by  adverse possession. 
13] Before dwelling into the oral evidence I shall reproduce
the gist of the defendants' pleadings on the issue of adverse possession.
In   paragraph   3   it   is   stated   that   while   placing   the   defendants   in
possession of 21.05 A.G. land out of field survey no.53, other one acre
land which is subject matter of  this suit was also given in possession.
Since then they are in possession of the suit plot continuously peacefully
without  any interruption  and  as  owner  thereof.  In  paragraph  4 it is
pleaded that the land was lying fallow and idle and it seems that while
giving possession of 21.05 A.G., this one acre of land was also voluntarily
given in possession of the defendants by the plaintiffs on 25.3.1963. This140812FA212.96.odt
9
is situated on East­South corner of the suit field and might have been
numbered as plot no.1 sheet no.44 as alleged by the plaintiff. 
14] Now,   it   is   necessary   to   examine   as   to   whether   the
defendants could establish that their possession over the suit land was
hostile to its true owner and since inception they had animus to possess
the  same  adversely.  In  his  evidence   D.W.1  Shrikant  stated  that  for
establishment   of   the   Industrial   Training   Institute   and   Government
Polytechnic   various   lands   including   the   land   field   survey   no.53
admeasuring   21.05   A.G.   were   acquired   and   since   then   they   are   in
possession of the same. According to him the disputed one acre land is in
possession of the I.T.I. since  beginning. Evidence of D.W. 2 Ganpat who
was a Senior Clerk serving in  I.T.I. during period  from 1982  to 1985
shows that the disputed portion of the suit land is in possession of the
plaintiffs and I.T.I. since the date of acquisition. The third witness D.W. 3
Manohar was Principal of I.T.I. during year 1967 to 1974. According to
him whatever possession of the land was handed over to the institute, is
in their possession and no additional portion is either encroached upon
or is in their possession. It reveals  from his cross examination that he
does  not  know  how much  area was  acquired  and  possession  of  how
much area was handed over to them. He showed ignorance whether in
addition to 21.05 A.G. land the defendants are also in possession of the
additional portion of one acre of land. He does not know about the suit
land   being   numbered   as   nazul   plot   no.1   in   sheet   no.44   of   village
Pimpalgaon.
15] What spells out  from  the aforesaid evidence is  that  the
suit land is in possession of the defendants. It does not show that at any
point of time the possession of the defendants over the suit land became
adverse.   The   tenor   of   the   oral   evidence   is   that   whatever   the   land
acquired and given in possession, is being possessed by  them without
there being any element of possessing the said land  adversely to its true
owner. The pleading is  that the land was lying fallow and idle and it
was   voluntarily   given   in   possession   of   defendants   by   plaintiffs   on
25.3.1963.   This     appears   to   be   palpably   incorrect   and   inherently
improbable. The original owners of  the land who appeared before the
Special Land Acquisition Officer which is evident from the award placed
on  record,  had    claimed  compensation @ Rs.10,000/­  per  acre.  It is
unbelievable that they had    voluntarily handed over the possession of
additional  area   of  one  acre. Moreover,    why  defendants  ­State  shall
indulge in exercise of taking possession of more land than  acquired.
16] In   State   of   Haryana   ..vs..   Mukesh   Kumar   and   others
(2011)10 SCC 404, their Lordships held that “A person pleading adverse
possession has no equities in his favour since he is trying to defeat the
rights of the true owner. It is for him to clearly plead and establish all
facts necessary to establish adverse possession.” Coming down heavily on
the  State which  sets  up  a  plea  of  adverse  possession  their  Lordships
observed  that  “If  the   protectors  of  law  become  the  grabbers  of  the
property, then people will be left with no protection and there would be
a total anarchy in the entire country”. (emphasis supplied)
17] Law declared by supreme Court practically brings an end
to the controversy involved in this appeal. In that view of  the matter,
there is no alternative than to negative the case of the defendants that
the suit is barred by limitation or they acquired the title to the suit plot
by adverse possession. This follows that the suit filed by the plaintiffs for
possession of the suit plot will have to be decreed by setting aside the
judgment and decree passed by the learned trial court.
18] Before   parting   with   the   judgment,   it   is   necessary   to
observe that if  the defendants consider that the suit plot has become an
integral   part   of   the   buildings   constructed   for   housing   the   I.T.I.   and
Government Polytechnic etc or without great inconvenience   possession
of the same cannot be parted  with, they have remedy to   acquire  the
same by paying just and fair compensation to the plaintiffs. Since it is a
trust property and remained uncared or was practically abandoned, but
for the notice issued by the Collectorate, there may not any objection for
such acquisition. Be that as it may. 
19] Appeal succeeds. 
Judgment and decree passed by the trial court dismissing
the suit is set aside. Suit for possession of the suit plot i.e. plot no.1 nazul
sheet no.44 stands decreed. Map exhibit 53 and 54 shall form part of the
decree 
Respondents shall bear their own costs in addition to the
costs   incurred   by   the   plaintiffs   throughout.   Decree   be   drawn
accordingly.
JUDGE
SMP. 

Print Page

No comments:

Post a Comment