Brundaban Ghanta & another vs Nirasa Pati

This is a defendants'' appeal against a confirming judgment.

Plaintiff instituted the suit for declaration of right, title and interest, confirmation of possession and in the alternative for delivery of possession.

The case of the plaintiff was that her husband Banamali Pati was the owner of Sabik Khata No.26, Sabik Plot Nos.540/1828, Ac.0.4 dec. and

1883/1890 Ac.0.8 dec. During Hal settlement, area of Sabik Plot No.540/1828 was enhanced from Ac.0.4 dec. to Ac.0.6 dec. It was carved

into Khata No.108, Plot No.766 and Khata No.147, Plot No.767 Ac.0.3 dec. She and her husband were in possession of Hal Plot Nos.766 and

767 peacefully, continuously and uninterruptedly. They used to pay rent. After the death of her husband, she is in possession of the land. In 1987,

Narimangal Samiti House adjacent to the said plots collapsed. The defendants cleared up the same and forcibly occupied the plots despite her

protests. On the requisition of the plaintiff, the Amin measured the land. The plaintiff came to know that plot no.767 Ac.0.3 dec. has been wrongly

recorded in the name of defendant no.1 in Hal settlement. With this factual scenario, she instituted the suit seeking the reliefs mentioned supra.

The defendants entered contest and filed a written statement denying the assertions made in the plaint. They did not claim title over plot no.766.

As regards plot no.767, they averred that Banamali Pati transferred plot no.767 in favour of defendant no.1. ROR was issued in his name. The

plaintiff has no right, title and possession over the suit land. Defendant no.1 is in possession of the land peacefully and uninterruptedly prior to the

death of Banamali Pati.

On the inter se pleadings of the parties, learned trial court framed eight issues. Parties led evidence, both oral and documentary to substantiate

their case. Learned trial judge decreed the suit. Unsuccessful defendants filed Title Appeal No.1 of 1994 before the learned Civil Judge (Senior

Division), Bonai, which was eventually dismissed.

The second appeal was admitted on the following substantial question of law.

Whether the courts below were justified in decreeing the plaintiff''s suit without examining the alternative claim of Defendant No.1 of acquisition of

title to the suit land by continuous and uninterrupted possession as of right since the year 1952 for a period exceeding 12 years ?

Heard Mr. L.K. Moharana, learned counsel on behalf of Mr. S.P. Mishra, learned Senior Advocate for the appellants and Mr. Buddhiram Das,

learned counsel on behalf of Mr. A.K. Mishra, learned counsel for the respondent.

Learned counsel for the appellants submitted that the plea of the defendants is that they have perfected title by way of adverse possession. No

issue has been framed and no finding has been rendered by the courts below. Elaborating his submission, he submitted that there was an oral

exchange of land between Brundaban Pati, husband of the plaintiff and defendant no.1. Placing reliance on the amin report vide Ext. B and rent

receipts, he submitted that the defendants are in possession of the suit land since 1952 peacefully, continuously and to the hostile animus of the

plaintiffs.

Learned counsel for the respondents submitted that the defendants have failed to substantiate the plea of oral exchange. The same has been

rightly negatived by the courts below. Defendants cannot blow hot and cold at the same breadth. They took the plea of oral exchange, but

alternatively claimed title by way of adverse possession. The plea is mutually inconsistent.

The plea of oral exchange of land and adverse possession are mutually destructive. On the basis of the oral evidence defendants assert title. A

person claiming assertive title on the basis of oral exchange cannot take prevaricating stand.

Adverse possession is not a pure question of law but a blended one of fact and law. In Bangalore Development Authority vs. N. Jayamma,

(2017) 13 SCC 159, the apex Court held:-

18.4. Most pertinently, the Court also held that the plaintiffs could not claim adverse possession as, on the facts of that case, it could not be said

that possession of the plaintiffs was peaceful, open, continuous and non-hostile. On this aspect, the Court took note of essentials of adverse

possession, which are required to be proved, from the judgment in Karnataka Board of Wakf v. Union of India and some other judgments.

Discussion in this behalf is contained in paras 18 to 21, which read as under: (M. Venkatesh case, SCC pp.10-12)

Coming then to the question whether the respondents-plaintiffs could claim adverse possession, we need to hardly mention the well known

and oft quoted maxim nec vi, nec clam, nec precario meaning thereby that adverse possession is proved only when possession is peaceful, open,

continuous and hostile. The essentials of adverse possession were succinctly summed up by this Court in Karnataka Board of Wakf v. Union of

India in the following words: (SCC p.785, para 11)

''11.In the eye of the 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 would not affect his title. But the position will be altered when another person takes possession of the property

and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. 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. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true

owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory

period. (See S.M. Karim v. Bibi Sakina, Parsinni v. Sukhi and D.N. Venkatarayappa v. State of Karnataka. 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. [Mahesh Chand Sharma v. Raj Kumari Sharma)''

Reference may also be made to the decision of this Court in Saroop Singh v. Banto, wherein this Court emphasised the importance of animus

possidendi and observed: (SCC p.340, paras 29-30)

In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but

commences from the date the defendant''s possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak.)

""Animus possidendi"" is one of the ingredients of adverse possession. Unless the person possessing the land has the requisite animus the period

for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true

owner, the logical corollary is that he did not have the requisite animus. (See Mohd. Mohammad Ali v. Jagadish Kalita para 21.)

Also noteworthy is the decision of this Court in Mohan Lal v. Mirza Abdul Gaffar, wherein this Court held that claim of title to the property

and adverse possession are in terms contradictory. This Court observed: (SCC pp.640-41, para 4)

''4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right

thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor-in-title

or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e. up to completing the period of his title

by prescription nec vi, nec clam, nec precario. Since the appellant''s claim is founded on Section 53-A, it goes without saying that he admits by

implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby

the plea of adverse possession is not available to the appellant.''

To the same effect is the decision of this Court in Annasaheb Bapusaheb Patil v. Balwant, wherein this Court elaborated the significance of a

claim to title vis-a-vis the claim to adverse possession over the same property. The Court said: (SCC p.554, para 15)

''15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a period 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.''

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In Rama Shankar v. Om Prakash Likhdhari, the Allahabad High Court has observed as under:

The principle of adverse possession and its consequences wherever attracted, has been recognised in the statute dealing with limitation. The

first codified statute dealing with limitation came to be enacted in 1840. Act 14 of 1840 in fact was an enactment applicable in England but it was

extended to the territory of Indian continent which was under the reign of East India Company, by an authority of Privy Council in East India Co.

V. Oditchurn Paul.

xxx xxx xxx

The law of Prescription prescribes the period at the expiry of which not only the judicial remedy is barred but a substantive right is acquired or

extinguished. A prescription, by which a right is acquired, is called an ''acquisitive prescription''. A prescription by which a right is extinguished is

called ''extinctive prescription''. The distinction between the two is not of much practical importance or substance. The extinction of right of one

party is often the mode of acquiring it by another. The right extinguished is virtually transferred to the person who claims it by prescription.

Prescription implies with the thing prescribed for is the property of another and that it is enjoyed adversely to that other. In this respect it must be

distinguished from acquisition by mere occupation as in the case of res nullius. The acquisition in such cases does not depend upon occupation for

any particular length of time.

Mere reciting the words in the written statement that ""the defendants have got every right, title and interest over the suit plot by their actual,

continuous, exclusive, open and uninterrupted hostile possession since 1952"" are not suffice. The date of entry into the suit land has not been

mentioned. Mere possession of the suit land for long time is not suffice to hold that the plaintiffs have perfected title by way of adverse possession,

unless the classical requirements of adverse possession nec vi, nec clam, nec precario are pleaded and proved. The pleadings lack details. The

substantial question of law is answered accordingly.

In the wake of the aforesaid the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.