Saturday, 16 June 2018

When plea of adverse possession is not proved?

 In T. Anjanappa and Ors. v. Somalingappa and Anr. MANU/SC/8429/2006 : (2006) 7 SCC 570, this Court held that mere possession, howsoever long it may be, does not necessarily mean that it is adverse to the true owner and the classical requirement of acquisition of title by adverse possession is that such possessions are in denial of the true owners' title.

37. Relying upon the aforesaid decision, this Court again in Chatti Konati Rao and Ors. v. Palle Venkata Subba Rao MANU/SC/1033/2010 : (2010) 14 SCC 316 in Para 14 held as under:

14. In view of the several authorities of this Court, few whereof have been referred above, what can safely be said is that mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The possession must be open and hostile enough so that it is known by the parties interested in the property. The Plaintiff is bound to prove his title as also possession within twelve years and once the Plaintiff proves his title, the burden shifts on the Defendant to establish that he has perfected his title by adverse possession. Claim by adverse possession has two basic elements i.e. the possession of the Defendant should be adverse to the Plaintiff and the Defendant must continue to remain in possession for a period of twelve years thereafter.

38. Applying the aforementioned principle of law to the facts of the case on hand, we find absolutely no merit in this plea of Defendant No. 1 for the following reasons:

39. First, Defendant No. 1 has only averred in his plaint (counter-claim) that he, through his father, was in possession of the suit land since 1953. Such averments, in our opinion, do not constitute the plea of "adverse possession" in the light of law laid down by this Court quoted supra. Second, it was not pleaded as to from which date, Defendant No. 1's possession became adverse to the Plaintiff (Wakf Board). Third, it was also not pleaded that when his adverse possession was completed and ripened into the full ownership in his favour. Fourth, it could not be so for the simple reason that the Plaintiff (Wakf Board) had filed a suit in the year 1971 against Defendant No. 1's father in relation to suit land. Therefore, till the year 1971, the question of Defendant No. 1 perfecting his title by "adverse possession" qua the Plaintiff (Wakf Board) did not arise. The Plaintiff then filed present suit in the year 1991 and, therefore, again the question of perfecting title upto 1991 qua the Plaintiff did not arise.

40. The reason is that the Plaintiff being a Wakf Board, the period of 30 years as prescribed Under Section 66G of the Wakf (Amendment) Act, 1984 is applicable to establish the factum of "adverse possession" by any person against any Wakf property. In this case, Defendant No. 1 could not establish his 30 years' continuous possession qua the Plaintiff because the continuity was broken twice by the positive act on the part of true owner-Wakf Board (plaintiff) first in 1971 and then in 1991 by asserting their ownership over the suit land against Defendant No. 1 in two suits.



41. In the light of these two admitted facts emerging from the record, we are of the view that the Appellant (Defendant No. 1) failed to prove his case of "adverse possession" on facts and law.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2571 of 2008

Decided On: 13.09.2017

 Dharampal (dead) thr. L.Rs. Vs.  Punjab Wakf Board and Ors.

Hon'ble Judges/Coram:
R.K. Agrawal and Abhay Manohar Sapre, JJ.

Citation:( 2018) 11 SCC 449.
Read full judgment: Click here


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