Shri Bhim Chand vs Sh. Mast Ram and Others

Rajiv Sharma, Judge

This Regular Second Appeal is directed against the judgment and decree dated 08.05.2002, passed by the learned District Judge, Mandi, H.P. in Civil Appeal No. 40 of 1999. Material facts necessary for adjudication of this appeal are that the appellant-plaintiff (hereinafter referred to as ''the plaintiff'' for the sake of convenience) has filed a suit for declaration and injunction against the original defendant, Sh. Thalia. According to the plaintiff, he has become owner in possession of the land detailed in the plaint by way of adverse possession and the revenue entries showing the respondents-defendants (hereinafter referred to as ''the defendants'' for the sake of convenience), were liable to be deleted and further sought to restrain the defendants by way of permanent injunction from interfering in the suit land. According to the plaintiff, the suit land was recorded in the ownership and possession of the defendant, but the entries in the revenue record were incorrect as the suit land was in continuous, peaceful and exclusive possession of the plaintiff since 25.5.1971 to the knowledge of the defendant. Thus, he has become owner of the suit land by way of adverse possession.

In the written statement filed by defendant Chatanki Devi, the claim of the plaintiff was admitted by stating that the plaintiff was in possession of 1/3rd share of Chhatanki Devi in the suit land since 1971.

In the written statement filed on behalf of defendant Mast Ram, it was admitted that the suit land was recorded in his ownership and possession. It was denied that the revenue entries qua the suit land were incorrect and it was also denied that the plaintiff had been in possession of the suit land since 1971 and has become owner of the suit land.

The replication was filed on behalf of the plaintiff. The original defendant died and his legal representatives were brought on record by the learned trial Court. The issues were framed by the learned Sub Judge, 1st Class, Jogindernagar, District Mandi, H.P. on 06.11.1997. He decreed the suit on 11.03.1999. The respondents, excluding Chhatanki Devi, filed an appeal before the learned District Judge, Mandi, H.P. against the judgment dated 11.03.1999. Learned District Judge, Mandi, H.P. allowed the appeal on 08.05.2002. Hence, this Regular Second Appeal.

This Regular Second Appeal was admitted on the following substantial questions of law on 12.07.2002:

Whether the learned Court below has mis-read and mis-appreciated the oral and documentary evidence especially statements of PWs. 1 and 2, DW-1 as also Exhibit PA and as such the judgment is vitiated?

Whether a co-owner and co-sharer can on basis of act, conduct and deed as also by way of written statement bound the rights of the other co-sharers by admitting the claim of the plaintiff in the written statement, if so whether the findings of the learned Court below are right and proper?

Whether the learned Court below could have granted a relief contrary to the pleadings and the defence of the defendants, more so when the allegations of the plaintiff had not been rebutted by one of the defendants, being a co-owner for herself as also for the other co-owners and as such the learned court has acted in contradiction to the law and procedure?

Mr. Sanjeev Kuthiala, learned counsel for the appellant has supported the judgment and decree passed by the learned trial Court.

Mr. G.R. Palsra, learned counsel for respondents No. 1 to 6 has supported the judgment and decree passed by the learned District Judge, Mandi.

I have heard the learned counsel for the parties and gone through the pleadings and records carefully.

Since all the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid the repetition of discussion of evidence.

According to the Jamabandi for the year 1992-93, Ex.-PA, the suit land was owned by the original defendant, namely, Thalia. The revenue entry was also corroborated by DW-1, Mast Ram. The plaintiff has not placed any material to rebut the revenue entry recorded in Jamabandi for the year 1992-1993, Ex.- PA.

The plaintiff has appeared as PW-1. According to him, he was in possession of the suit land since 1971 and he had been cultivating the same. PW-2 Dasondhi Ram and PW-3, Cheenju Ram have corroborated the statement of PW-1. PW-2 and PW-3 have only stated about the long possession of the plaintiff. It has neither been stated by the plaintiff nor by PW-2 and PW-3 how the plaintiff has come in possession of the suit land. It has not been stated by these witnesses how the possession of the plaintiff become adverse against the true owner. It was necessary for the plaintiff to plead and prove the ingredients of adverse possession. Merely stating that he was in peaceful possession since 1971 was not sufficient. The revenue records produced by the parties do not establish that the plaintiff was owner in possession of the suit land. The revenue entries were in favour of Shri Thalia. There is presumption of truth attached to the revenue entries which has not been rebutted at all by the plaintiff.

Mr. Sanjeev Kuthiala, learned counsel for the appellant has relied upon the affidavit of Smt. Chhantanki Devi. However, the plaintiff has not taken a specific ground of ouster in the plaint.

The Division Bench of this Court in Shiam Sunder and others Vs. Tara Chand and others, 1978 S.L.C.111 has laid down that in the absence of clear proof of ouster, the possession of one sharer must be regarded as possession on behalf of all. It is not reasonably possible to hold that the ouster from possession of the respondents has been established. The Division Bench has further held that there was nothing to show that for a period of twelve years or more there has been a disclaimer by the appellants of the rights of the respondents by any open and unequivocal assertions of hostile title.

Their Lordships of the Hon''ble Supreme Court in Vidya Devi alias Vidya Vati (Dead by L.R''s) Vs. Prem Prakash and others, have held that broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Their Lordships have held as under:

From the underlined portion extracted above, it will be seen that in order that the possession of co-owner may be adverse to others, it is necessary that there should be ouster or something equivalent to it. This was also the observation of the Supreme Court in P. Lakshmi Reddy Vs. L. Lakshmi Reddy, which has since been followed in Mohd. Zain-ul-Abdin v. Syed Ahmad Mohiuddin, AIR 1990 SC 507.

"Ouster" does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession, Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are(i) declaration of hostile animus(ii) long and uninterrupted possession of the person pleading ouster and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owners. Thus co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law.

Their Lordships of the Hon''ble Supreme Court in T. Anjanappa and Others Vs. Somalingappa and Another, have explained the entire concept of adverse possession as under:

The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other''s rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner''s right excluded him from the enjoyment of his property.

Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person''s title. Possession is not held to he adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful Owner''s title e.g. trustees, guardians, bailiffs or agents. Such persons cannot set up adverse possession.

"Adverse possession" means a hostile possession which is expressly or impliedly in denial of title of the true owner. Under Article 65 of the Limitation Act, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. (See Annasaheb Bapusaheb Patil and others Vs. Balwant alias Balasaheb Babusaheb Patil (dead) by LRs. and heirs etc.,

Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person 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.

An occupation of reality is inconsistent with the right of the true owner. Where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner (that is, with the intention of excluding all persons from it, including the rightful owner), he is in adverse possession of it. Thus, if A is in possession of a field of B''s, he is in adverse possession of it unless there is something to show that his possession is consistent with a recognition of B''s title. (See Ward v. Carttar (1866) LR 1 Eq. 29). Adverse possession is of two kinds, according as it was adverse from the beginning, or has become so subsequently. Thus, if a mere trespasser takes possession of A''s property, and retains it against him, his possession is adverse ab initio. But if A grants a lease of land to B, or B obtains possession of the land as A''s bailiff, or guardian, or trustee, his possession can only become adverse by some change in his position. Adverse possession not only entitled the adverse possessor, like every other possessor, to be protected in his possession against all who cannot show a better title, but also, if the adverse possessor remains in possession for a certain period of time produces the effect either of barring the right of the true owner, and thus converting the possessor into the owner, or of depriving the true owner of his right of action to recover his property and this although the true owner is ignorant of the adverse possessor being in occupation. (See Rains v. Buxion (1880 (14) Ch D 537).

It is the basic principle of law of adverse possession that (a) it is the temporary and abnormal separation of the property from the title of it when a man holds property innocently against all the world but wrongfully against the true owner; (b) it is possession inconsistent with the title of the true owner.

It is well recognized proposition in law that mere possession however long does not necessarily means that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner''s title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former''s hostile action.

Their Lordships of the Hon''ble Supreme Court in P.T. Munichikkanna Reddy and Others Vs. Revamma and Others, have held that to assess a claim of adverse possession, two pronged enquiry is required:

Application of limitation provision thereby jurisprudentially "willful neglect" element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.

Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper-owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.

Thereafter, their Lordships of the Hon''ble Supreme Court have discussed the new consideration in adverse possession law as under:

In that context it is relevant to refer to JA Pye (Oxford) Ltd v. United Kingdom (2005) 49 ERG 90, (2005) ECHR 921 wherein the European Court of Human Rights while referring to the Court of Appeal judgment ((2001) EWCA Civ 117, (2001) Ch 804) made the following reference:

Lord Justice Keene took as his starting point that limitation periods were in principle not incompatible with the Convention and that the process whereby a person would be barred from enforcing rights by the passage of time was clearly acknowledged by the Convention (Convention for the Protection of Human Rights and Fundamental Freedoms). This position obtained, in his view, even though limitation periods both limited the right of access to the courts and in some circumstances had the effect of depriving persons of property rights, whether real or personal, or of damages: there was thus nothing inherently incompatible as between the 1980 Act and Article 1 of the Protocol.

This brings us to the issue of mental element in adverse possession cases-intention. 1. Positive Intention

The aspect of positive intention is weakened in this case by the sale deeds dated 11.04.1934 and 5.07.1936. Intention is a mental element which is proved and disproved through positive acts. Existence of some events can go a long way to weaken the presumption of intention to dispossess which might have painstakingly grown out of long possession which otherwise would have sufficed in a standard adverse possession case.. The fact of possession is important in more than one ways: firstly, due compliance on this count attracts limitation act and it also assists the court to unearth as the intention to dispossess.

At this juncture, it would be in the fitness of circumstances to discuss intention to dispossess vis-�-vis intention to possess. This distinction can be marked very distinctively in the present circumstances.

Importantly, intention to possess can not be substituted for intention to dispossess which is essential to prove adverse possession. The factum of possession in the instant case only goes on to objectively indicate intention to possess the land. As also has been noted by the High Court, if the appellant has purchased the land without the knowledge of earlier sale, then in that case the intention element is not of the variety and degree which is required for adverse possession to materialize.

The High Court observed:

It is seen from the pleadings as well in evidence that the plaintiff came to know about the right of the defendants'', only when disturbances were sought to be made to his possession.

In similar circumstances, in the case of Thakur Kishan Singh (dead) Vs. Arvind Kumar, this court held:

As regards adverse possession, it was not disputed even by the trial court that the appellant entered into possession over the land in dispute under a licence from the respondent for purposes of brick-kiln. The possession thus initially being permissive, the burden was heavy on the appellant to establish that it became adverse. A possession of a co-owner or of a licencee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissible possession into adverse possession. Apart from it, the Appellate Court has gone into detail and after considering the evidence on record found it as a fact that the possession of the appellant was not adverse.

The present case is one of the few ones where even an unusually long undisturbed possession does not go on to prove the intention of the adverse possessor. This is a rare circumstance, which Clarke LJ in Lambeth London Borough Council v. Blackburn (2001) 82 P&CR 494, 504 refers to:

I would not for my part think it appropriate to strain to hold that a trespasser who had established factual possession of the property for the necessary 12 years did not have the animus possidendi identified in the cases. I express that view for two reasons. The first is that the requirement that there be a sufficient manifestation of the intention provides protection for landowners and the second is that once it is held that the trespasser has factual possession it will very often be the case that he can establish the manifested intention. Indeed it is difficult to find a case in which there has been a clear finding of factual possession in which the claim to adverse possession has failed for lack of intention.

On intention, The Powell v. Macfarlane (1977) 38 P&CR (Property, Planning & Compensation Reports) 452 _ 472 is quite illustrative and categorical, holding in the following terms:

If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (''animus possidendi'').

If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.

In my judgment it is consistent with principle as well as authority that a person who originally entered another''s land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner.

What is really meant, in my judgment, is that the animus possidendi involves the intention, in one''s own name and on one''s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow."

Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving (willful) or omission (negligent or otherwise) of right to defend or care for the integrity of property on the part of the paper owner of the land. Adverse possession statutes, like other statutes of limitation, rest on a public policy that do not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence.

While dealing with the aspect of intention in the Adverse possession law, it is important to understand its nuances from varied angles.

Intention implies knowledge on the part of adverse possessor. The case of Saroop Singh Vs. Banto and Others, in that context held:

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 defendants 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 a 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. Mohd. Ali v. Jagadish Kalita, SCC para 21.)

A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by this Court in Karnataka Board of Wakf Vs. Government of India and Others, in the following terms:

_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_

It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper owner.

In Narne Rama Murthy v. Ravula Somasundaram and Others ((2005) 6 SCC 614), this Court held:

However, in cases where the question of limitation is a mixed question of fact and law and the suit does not appear to be barred by limitation on the face of it, then the facts necessary to prove limitation must be pleaded, an issue raised and then proved. In this case the question of limitation is intricately linked with the question whether the agreement to sell was entered into on behalf of all and whether possession was on behalf of all. It is also linked with the plea of adverse possession. Once on facts it has been found that the purchase was on behalf of all and that the possession was on behalf of all, then, in the absence of any open, hostile and overt act, there can be no adverse possession and the suit would also not be barred by limitation. The only hostile act which could be shown was the advertisement issued in 1989. The suit filed almost immediately thereafter.

The test is, as has been held in the case of R. v. Oxfordshire County Council and Others, Ex Parte Sunningwell Parish Council (1999) 3 ALL ER 385; (1999) 3 WLR 160:

Bright v. Walker (1834) 1 Cr. M. & R. 211, 219, "openly and in the manner that a person rightfully entitled would have used it..." The presumption arises, as Fry J. said of prescription generally in Dalton v. Angus (1881) 6 App. Cas. 740, 773, from acquiescence.

The case concerned interpretation of section 22(1) of the Commons Registration Act 1965. Section 22(1) defined "town or village green" as including

_ land _ on which the inhabitants of any locality have indulged in (lawful) sports and pastimes as of right for not less than 20 years.

It was observed that the inhabitants'' use of the land for sports and pastimes did not constitute the use "as of right". The belief that they had the right to do so was found to be lacking. The House held that they did not have to have a personal belief in their right to use the land. The court observed:

the words ''as of right'' import the absence of any of the three characteristics of compulsion, secrecy or licence_ ''nec vi, nec clam, nec precario'', phraseology borrowed from the law of easements.

Later in the case of Beresford, R (on the application of) v. City of Sunderland (2003) 3 WLR 1306, (2004) 1 All ER 160 same test was referred to.

Thus the test of nec vi, nec clam, nec precario i.e., "not by force, nor stealth, nor the license of the owner" has been an established notion in law relating to the whole range of similarly situated concepts such as easement, prescription, public dedication, limitation and adverse possession.

In Karnataka Wakf Board (Supra), the law was stated, thus:

In the eye of 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 won''t 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 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 Vs. Mst. Bibi Sakina, Parsinni (Dead) by Lrs. and Others Vs. Sukhi and Others, and D.N. Venkatarayappa and another Vs. State of Karnataka and others, 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 true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.

Inquiry into the particulars of Adverse Possession

Inquiry into the starting point of adverse possession i.e. dates as to when the paper owner got dispossessed is an important aspect to be considered. In the instant case the starting point of adverse possession and Other facts such as the manner in which the possession operationalized, nature of possession: whether open, continuous, uninterrupted or hostile possession - have not been disclosed. An observation has been made in this regard in S.M. Karim Vs. Mst. Bibi Sakina,

Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea.

Also mention as to the real owner of the property must be specifically made in an adverse possession claim.

In Karnataka Wakf Board (Supra), it is stated:

Plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. In P. Periasami (Dead) by Lrs. Vs. P. Periathambi and Others, this Court ruled that - "Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property." The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal (Deceased) through his Lrs. Kachru and Others Vs. Mirza Abdul Gaffar and Another, that is similar to the case in hand, this Court held: "As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right there under 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 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 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.

New Paradigm to Limitation Act

The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned: once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession. The ingredients of adverse possession have succinctly been stated by this Court in S.M. Karim Vs. Mst. Bibi Sakina, in the following terms: "_Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found_"

(See also M. Durai Vs. Madhu and Others,

The aforementioned principle has been reiterated by this Court in Saroop Singh Vs. Banto and Others, stating:

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 defendants 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 a 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. Mohd. Ali v. Jagadish Kalita, SCC para 21.)

In Mohammadbhai Kasambhai Sheikh and Others v. Abdulla Kasambhai Sheikh ((2004) 13 SCC 385), this Court held:

_But as has been held in Mahomedally Tyebally v. Safiabai the heirs of Mohammedans (which the parties before us are) succeed to the estate in specific shares as tenants-in-common and a suit by an heir for his/her share was governed, as regards immovable property, by Article 144 of the Limitation Act, 1908. Article 144 of the Limitation Act, 1908 has been materially reenacted as Article 65 of the Limitation Act, 1963 and provides that the suit for possession of immovable property or any interest therein based on title must be filed within a period of 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. Therefore, unless the defendant raises the defence of adverse possession to a claim for a share by an heir to ancestral property, he cannot also raise an issue relating to the limitation of the plaintiffs claim_

The question has been considered at some length recently in T. Anjanappa and Others Vs. Somalingappa and Another, wherein it was opined :

The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise. Above being the position the High Court''s judgment is clearly unsustainable

(See also Des Raj and Others Vs. Bhagat Ram (Dead) By LRs. and Others, ; Govindammal Vs. R. Perumal Chettiar and Others,

Learned 1st Appellate Court has correctly appreciated the oral as well as documentary evidence led by the parties, including the statements of PW-1, PW-2, DW-1 and Ex.-PA. Consequently, there is no substantial question of law involved in this Regular Second Appeal. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed, so also the pending application(s), if any. No costs.