Sukutri Bai vs Surji Bai And Ors

The substantial question of law involved, formulated and to be answered in this second appeal preferred by the appellant/defendant No.5 is as

under:Â​

“Whether the Court below has erred in holding that respondent No.1 has perfected her title by way of adverse possession ?â€​

[For the sake of convenience, parties would be referred hereinafter as per their status shown and ranking given in the suit before the trial Court].

The suit property was originally ancestral property in the hands of Rupsai. The plaintiff is one of the daughter of Rupsai, who filed a suit for

declaration of title, ownership on the basis of adverse possession and permanent injunction stating interÂalia that she was gharjiha daughter of Rupsai

and for her livelihood the suit land was given to her 30Â35 years prior to filing of the suit and as such, she has perfected her title by way of adverse

possession. In that suit, the plaintiff has impleaded Rupsai, her father as party defendant, but during pendency of the suit, he died and his legal

representatives i.e. widow, sons and daughters were brought on record.

The defendants filed their written statement and denied the averments made in the plaint stating inter alia that the suit property is ancestral

property in the hands of Rupsai and after death of Rupsai, all the daughters have also limited right over the property of their father.

The trial Court after appreciating oral and documentary evidence available on record, by its judgment and decree dated 7.3.2001, dismissed the suit

holding that the suit property is ancestral property of the parties and it was only given to the plaintiff for cultivation. On appeal being preferred by the

plaintiff, the first appellate Court decreed the suit holding that the plaintiff is in possession over the suit land for 30 years and has perfected her title by

way of adverse possession. Questioning the judgment and decree of the first appellate Court, this second appeal under Section 100 of the CPC has

been filed by the appellant/defendant No.5, in which substantial question of law has been formulated, which has been setÂout in the opening

paragraph of this judgment.

Mr.Rakesh Pandey, learned counsel for the appellant/defendant No.5, would submit that the first appellate Court is absolutely unjustified in holding

that the plaintiff has perfected her title by way of adverse possession, which is a perverse finding, as such, finding recorded by the first appellate Court

deserves to be set aside.

None present for respondents No.1 to 8 though served.

I have heard learned counsel for the appellant, considered his submissions made hereinabove and also went through the records with utmost

circumspection.

The question for consideration would be, whether the plaintiff has perfected her title by way of adverse possession over the suit land ?

The Supreme Court in the matter of Karnataka Board of Wakf v. Government of India and others (2004) 10 SCC 779 has laid down the

requirements for pleading and establishing necessary facts to establish his adverse possession. ParaÂ​11 of the report states as under:Â​

“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. NonÂuse 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 the true owner. It is a wellÂ‐

settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precarioâ€, 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 1964 SC 1254, Parsinni v. Sukhi (1993) 4 SCC 375 and D. N. Venkatarayappa v. State of Karnataka (1997) 7 SCC 567).

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. (Dr. Mahesh Chand Sharma v. Raj Kumari Sharma (1996) 8 SCC 128).â€​

The principle of law laid down in Karnataka Board of Wakf (supra) has recently been followed by the Supreme Court in the matter of Ravinder

Kaur Grewal and others v. Manjit Kaur and others (2019) 8 SCC 729, in which it was held as under:Â​

“56. There is the acquisition of title in favour of plaintiff though it is negative conferral of right on extinguishment of the right of an owner of the

property. The right ripened by prescription by his adverse possession is absolute and on dispossession, he can sue based on “title†as envisaged in

the opening part under Article 65 of Act. Under Article 65, the suit can be filed based on the title for recovery of possession within 12 years of the

start of adverse possession, if any, set up by the defendant. Otherwise right to recover possession based on the title is absolute irrespective of

limitation in the absence of adverse possession by the defendant for 12 years. The possession as trespasser is not adverse nor long possession is

synonym with adverse possession.

The adverse possession requires all the three classic requirements to coÂexist at the same time, namely, necÂvi i.e. adequate in continuity, nec

clam i.e., adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that

if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it.

Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser’s

long possession is not synonymous with adverse possession. Trespasser’s possession is construed to be on behalf of the owner, the casual user

does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property,

protects it and in case of agricultural property by and the large concept is that actual tiller should own the land who works by dint of his hard labour

and makes the land cultivable. The legislature in various States confers rights based on possession.

Adverse possession is heritable and there can be tacking of adverse possession by two or more persons as the right is transmissible one. In our

opinion, it confers a perfected right which cannot be defeated on reÂ​entry except as provided in Article 65 itself. Tacking is based on the fulfillment of

certain conditions, tacking may be by possession by the purchaser, legatee or assignee, etc. so as to constitute continuity of possession, that person

must be claiming through whom it is sought to be tacked, and would depend on the identity of the same property under the same right. Two distinct

trespassers cannot tack their possession to constitute conferral of right by adverse possession for the prescribed period.â€​

Reverting to the facts of the present case in light of principle of law laid down by the Supreme Court in the aboveÂstated judgments (supra), it is

quite vivid that the suit property was admittedly ancestral property in the hands of Rupsai including the plaintiff and defendant No.5, in which sons and

daughters of Rupsai had right to partition though the appellant/defendant No.5 and the plaintiff have limited right over the share of their father in the

ancestral property. Not only this, the plaintiff has failed to plead and establish that on what date she came into possession, what was the nature of her

possession, whether the factum of possession was known to other party, how long her possession has continued and her possession was open and

undisturbed.

The Supreme Court in the matter of Nanjegowda alias Gowda (Dead) by Legal Representatives and another v. Ramegowda (2018) 1 SCC 574

has held that there cannot be adverse possession amongst members of one family for want of animus among them over land belonging to their family.

As such, the first appellate Court is absolutely unjustified in decreeing the suit of the plaintiff by granting appeal. Accordingly, the judgment and

decree of the first appellate Court is hereby set aside and that of the trial Court is hereby restored. The substantial question of law is answered in

favour of the defendants and against the plaintiff.

The second appeal is allowed to the extent indicated hereinabove. No cost(s).

Decree be drawnÂ​up accordingly.