Saturday 25 December 2021

Whether the court would pass judgment on admission if the defendant fails to plead the date on which his adverse possession commenced?

  With regard to what are the necessary pleadings in a case where title through adverse possession is claimed, either as a shield or as a sword, the Supreme Court in Karnataka Board of Wakf (supra) has held that a person who claims adverse possession should show : (a) on what date he had come into possession; (b) what was the nature of his possession; (c) whether the factum of the possession was known to the other party; (d) how long his possession has continued and (e) his possession was open and undisturbed. It is a well settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precario”, that is, peaceful, open and continuous. This possession which is adequate in continuity, in publicity, and in extent must be to show that the possession is adverse to the true owner. It must start with wrongful dispossession of the rightful owner and the actual physical and hostile continued possession over a statutory period.{Para 27}

28. No doubt the defendants have accepted the fact that this suit property had fallen in the share of late Sudhir Kumar Tyagi, the plaintiffs' predecessor-in-interest, on partition of the suit property and he had been its owner since then. However, one fact that stands out is that in 2004, the defendants admit that defendant No. 1 requested late Sudhir Kumar Tyagi to allow them to use the plot which was adjacent to their Sports Complex. In view of the fact that the parties were on good terms, as per the averments in the written statement, late Sudhir Kumar Tyagi had permitted the defendant No. 1 to use the plot. Thus, the possession has not been a result of wrongful dispossession of the rightful owner, when the defendant No. 1 came into the premises.

29. It is trite that long possession will not affect the title of the true owner. Nor would the lack of use of the property by the owner, for a long time, affect his title. It is only when the defendants start asserting hostile title that the clock will start ticking. Strangely, in the entire written statement, the defendants have not stated with any definiteness as to the dates since when they had started asserting their hostile title. That alone would disclose a valid defence to the suit by asserting title by adverse possession. The mere fact that the boundary walls had been built by the defendants cannot be termed as a hostile act against the true owner as the walls had been constructed to define the properties of the defendants after the family partition took place. Nor for that matter, would the construction activities at the site be inferred as an assertion of hostility by the defendant No. 1, as nowhere it is stated that he had done so without the permission of the true owner late Sudhir Kumar Tyagi and in fact claimed title during his life time.

30. In fact, there is no disclosure in this regard, except a bald assertion. But when the written statement is seen in totality, the fact that the parties were in a cordial relationship and the defendant No. 1 himself claims that the water and electricity meters continue to stand in the name of late Sudhir Kumar Tyagi and that he used to reimburse him when payments were made, would show that the defendant No. 1 did not assert independent and hostile title to late Sudhir Kumar Tyagi. It is in this background that a date had to be disclosed when assertion of hostile possession was first made, since limitation would then be counted from that date. An essential ingredient has thus not been pleaded.

31. The defendants had to specifically plead with sufficient clarity when the possession became adverse and the exact date when adverse possession commenced and whether this fact was let known to the real owner. Their only reliance is on construction activities but that fact alone does not establish hostile title, as the initial possession was permissive. It was deemed to have continued till the plaintiffs revoked that permission to the defendants to remain in the suit property. It is only when the required animus to hold the property in a manner hostile to the true owner that it would be possible to determine how many years have passed since such open and hostile possession continued. Without commencement, there cannot be continuation. In the present case, a fundamental plea to submit the claim of adverse possession is missing and the burden on the defendants has not been discharged.

 In the High Court of Delhi at New Delhi

(Before Asha Menon, J.)

Monika Tyagi and Others  Vs Subhash Tyagi and Others 

CS(OS) 230/2020 and I.As. 7755/2020 

Decided on December 17, 2021

Citation: 2021 SCC OnLine Del 5400

Read full Judgment here: Click here

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