Supreme Court: Defendant can not take the plea of title as well as adverse possession simultaneously and from the same date

 We may also note that on the one hand, the appellants herein have sought to take a plea of bar of limitation vis-à-vis the original defendant claiming that possession came to them in 1976, with the suit being filed in 1989. Yet at the same time, it is claimed that the wife had title on the basis of these very documents. The claim of title from 1976 and the plea of adverse possession from 1976 cannot simultaneously hold. On the failure to establish the plea of title, it was necessary to prove as to from which date did the possession of the wife of the defendant amount to a hostile possession in a peaceful, open and continuous manner. We fail to appreciate how, on the one hand the appellants claimed that the wife of the original defendant, appellant 1 herein, had title to the property in 1976 but on their failure to establish title, in the alternative, the plea of adverse possession should be recognised from the very date.

In order to establish adverse possession an inquiry is required to be made into the starting point of such adverse possession and, thus, when the recorded owner got dispossessed would be crucial.P.T. Munichikkanna Reddy & Ors. (supra)

35. In the facts of the present case, this fact has not at all been proved.

The possession of Smt. Narasamma, the wife of the defendant, is stated to be on account of consideration paid. Assuming that the transaction did not fructify into a sale deed for whatever reason, still the date when such possession becomes adverse would have to be set out. Thus, the plea of adverse possession is lacking in all material particulars.

36. The possession has to be in public and to the knowledge of the true

owner as adverse, and this is necessary as a plea of adverse possession

seeks to defeat the rights of the true owner. Thus, the law would not be

readily accepting of such a case unless a clear and cogent basis has been made out.M. Siddiq (Dead) Through LRs (Ram Janmabhumi Temple Case) v. Mahant Suresh Das & Ors.(supra)

37. We may also note another judicial pronouncement in Ram Nagina Rai & Anr. v. Deo Kumar Rai (Deceased) by LRs & Anr.(2019) 13 SCC 324 dealing with a similar factual matrix, i.e., where there is permissive possession given by the owner and the defendant claims that the same had become adverse. It was held that it has to be specifically pleaded and proved as to when possession becomes adverse in order for the real owner to lose title 12 years hence from that time.

38. The legal position, thus, stands as evolved against the appellants herein in advancing a plea of title and adverse possession simultaneously and from the same date.

39. We have, thus, no hesitation in coming to the conclusion that the appeal is meritless and is accordingly dismissed with costs.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2710 OF 2010

NARASAMMA Vs  A. KRISHNAPPA 

Author: SANJAY KISHAN KAUL, J.

Dated:August 26, 2020.

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Whether plea of title and adverse possession can be taken at the same time by tenant?

Even the position of a tenant after termination of his tenancy is described in the case of Shyamcharans v. Sheoji Bhai (MANU/SC/0365/1977 : AIR 1977 SC 2270) in following words :-

"A tenant even after the termination of his contractual tenancy does not become an unauthorized occupant of the accommodation but remains a tenant, such a tenant is conveniently called a statutory tenant. Whether the expression aforesaid borrowed from the English Law is quite apposite or not, but what is certain is that a person continuing in possession of the accommodation even after the termination of his contractual tenancy is a tenant within the meaning of the Act and on such termination his possession does not become wrongful, until and unless a decree for eviction is made, if he continues to be in possession even after the passing of the decree, he does so as a wrongful occupant of the accommodation."

The defendant has taken pleadings in his written statement that he is owner of the suit premises and in the same breath, it has also been pleaded that he has become owner on the basis of adverse possession. In the case of Karnataka Board of Waqf v. Govt. of India and others [MANU/SC/0377/2004 : (2004) 10 SCC 779] it has been observed that the pleas of title and adverse possession are mutually inconsistent and the later does not begin to operate until the former is renounced. In para No. 12 of the same judgment it has also been observed that whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property.
22. Thus, in the light of the above-mentioned citations and oral and documentary evidence available on record, it is clear that both the lower Courts have not erred in holding that the plaintiffs' suit was not time barred and the defendants have not perfected their title by way of adverse possession. Formulated substantial question of law No. 2 is answered accordingly.

IN THE HIGH COURT OF MADHYA PRADESH (JABALPUR BENCH)

S.A. No. 1139/2005

Decided On: 06.02.2017

 Shakuntala Guha and Ors. Vs. Jasmit Kaur Narula and Ors.

Hon'ble Judges/Coram:

Ashok Kumar Joshi, J.

Citation: AIR 2017(NOC) 910 MP

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