Suit for Declaration of title & Possession -Sec.65 of Limitation Act - Suit based on Title - the defence is only to set up of title or Adverse possession - absence of issue is not a bar to decided the case - once title of plaintiff was proved burden lies on defendant to discharge his burden of adverse possession - in the absence of specific pleadings and evidence , no adverse possession can be considered - in the absence of other legal heirs , non- proof of oral gift from his mother to the vendor/defendant No.1 is not fatal to the case due to inheritance laws - Lower court wrongly dismissed the suit =
suit for declaration and possession was dismissed by the trial Court under
judgment and decree dated 17.02.2004. =
the impugned judgment of the trial Court has proceeded to
dismiss the suit merely on the plea of the respondents/defendants that they are
in adverse possession,though there is no issue framed nor the defendants have established any
ingredients of adverse possession.=
1. Whether the plaintiff has successfully established her title to the property
especially keeping in view the pleadings of the defendants?
2. Whether the findings of the trial Court upholding the plea of adverse
possession raised by the defendants are justified?
to claim that they are in possession of the house property since 1977, no where
they have stated as to how they came into possession.
As noticed from the legal
position, extracted above, a party setting up an adverse possession must establish that it is claiming
open, hostile possession against the person known to be interested in the
property i.e. real owner. The party setting up adverse possession must establish
its animus to possess, obviously, to the true owner. In the absence of animus
and showing that it is claimed against the real owner, the possession for any
length of time cannot fructify into adverse possession.The evidence of the
defendants,in the present case, is inconsistent inasmuch as though their written statement
is silent, Various documents filed and accepted by the defendants though show that the
defendants are residing in the suit house but that by itself is not sufficient
to establish the plea of adverse possession. While D.W.1 also
accepts knowledge of all transactions between Arifa Begum and Mehrunnisa Begum
and thereafter, Mehrunnisa Begum to the first defendant and from the first
defendant to the plaintiff, he, however, states that he is not a party to the
said documents.
The evidence, on record, therefore, does not satisfy the requirement of
establishing adverse possession. In the result, the appellant is entitled to declaration and possession.
The suit deserves to be decreed as prayed for to the extent of relief of
declaration and possession. To the extent of relief of mesne profits is
concerned, no evidence is adduced by the plaintiff in support of her plea of
mesne profits or its quantum. Hence, the plaintiff is relegated to the trial
Court to make an application under Order XX Rule 12 of the Code of Civil
Procedure, 1908 and seek determination of mesne profits. However, such
determination shall be confined from the period of three years prior to the suit
and thereafter.
The appeal is accordingly allowed with costs throughout.
As a sequel, the miscellaneous applications, if any, shall stand dismissed as
infructuous.
2014 (Feb.Part) judis.nic.in/judis_andhra/filename=10877
THE HON'BLE SRI JUSTICE VILAS V.AFZULPURKAR
CITY CIVIL COURT APPEAL No.166 OF 2004
07-02-2014
Smt. Naseeb Khatoon.... APPELLANT
Syed Abdul Aziz and others.... RESPONDENTS
Counsel for Appellant: MR. V.VENKATARAMANA
Counsel for Respondents : MR. J. KANAKAIAH
<GIST :
>HEAD NOTE:
?Cases referred:
1. AIR 1963 SC 884
2. (2005) 8 SCC 330
3. (2009) 16 SCC 517
4. 2010 (6) ALD 207
5. (2011) 12 SCC 220
6. AIR 1954 SC 526
THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR
CITY CIVIL COURT APPEAL No.166 of 2004
The Court made the following:
JUDGMENT:
This appeal is by the unsuccessful plaintiff, whose suit, O.S.No.1540 of
1996 for declaration and possession was dismissed by the trial Court under
judgment and decree dated 17.02.2004.
2. Mr. V. Venkataramana, learned senior counsel for the appellant, has
pointed out that the impugned judgment of the trial Court has proceeded to
dismiss the suit merely on the plea of the respondents/defendants that they are
in adverse possession,though there is no issue framed nor the defendants have established any
ingredients of adverse possession.
3. Per contra, Mr. J. Kanakaiah, learned counsel for the
respondents/defendants, submits that the plea of adverse possession is only an
alternate plea and even ignoring the finding of the trial Court on that aspect,
the suit was rightly dismissed on the ground that the plaintiff had failed to
adduce any documentary evidence in support of her claim for title.
4. The aforesaid rival contentions, therefore, need to be considered and
resolved.
PLEADINGS:
5. The plaint allegations proceed to state that
the suit schedule house
originally belonged to the Andhra Pradesh Housing Board and it was allotted to
one Arifa Begum.
She is stated to have entered into an agreement of sale with
one Mehrunnisa Begum on 18.01.1961 and the said purchaser came into possession
of the property since then.
Later, there were disputes between Arifa Begum and Mehrunnisa Begum, which
resulted in civil suits, being O.S.Nos.269 and 280 of 1968 and further appeal,
being A.S.No.86 of 1974 before the Chief Judge, City Civil Court, Hyderabad.
In
the said civil proceedings,
the purchaser, Mehrunnisa Begum succeeded and the vendor,
Arifa Begum, executed a registered sale deed in favour of
Mehrunnisa Begum dated 22.02.1980, marked as Ex.A5 and accompanied by plan,
Ex.A6.
It is alleged that Mehrunnisa Begum gifted the property to her son,
defendant No.1, under oral gift deed dated 20.12.1980 and later executed a
memorandum recording the said gift on 27.01.1983.
It is stated that the first
defendant, thereafter, executed a registered sale deed dated 09.10.1996, Ex.A3,
in favour of plaintiff.
It is stated that though the sale deed recites delivery
of possession to the plaintiff,
the first defendant, in fact, stated, at the
time of registration of sale deed, that his maternal uncle and his family are
residing in the said house and that they would vacate the said house in two or
three days of registration. The plaintiff, allegedly, believed the said version
and accepted the execution and registration of sale deed but her subsequent
efforts to get possession failed, ultimately, leading to filing of the present
suit, which was filed on 15.11.1996.
6. The first defendant, vendor of the plaintiff, remained ex parte.
Defendants 2 to 6, 8 and 9, who are occupiers, filed a common written statement
denying the plaint allegations.
Defendants, however, did not contravert the
ownership of Arifa Begum
but disputed that there was any agreement with
Mehrunnisa Begum or that there was any sale deed in her favour. They also denied
the gift, allegedly, executed by Mehrunnisa Begum in favour of the first
defendant, vendor of the plaintiff and also denied the title of the plaintiff.
The sheet anchor of their case was that neither Mehrunnisa Begum nor the first
defendant was ever in possession of the suit house and that the defendants
continued to remain in possession of the suit house since 1977 and as such, they
claimed that the said possession is open, uninterrupted and thereby, the
defendants claimed title by adverse possession.
7. On the basis of the aforesaid pleadings, the trial Court framed the
following issues for consideration:
1. Whether the plaintiff is entitled for the declaration, as asked for?
2. Whether the plaintiff is entitled for the past mesne profits of Rs.2000/-
3. Whether the defendants are liable to be evicted from the suit schedule
property?
4. Whether the plaintiff is entitled to the future mesne profits @ Rs.2000/-
from the date of suit till the delivery of possession?
5. Whether there is no cause of action for the plaintiff to file the suit?
6. Whether the suit is barred by limitation?
7. To what relief?
8. Oral and documentary evidence was led by both sides.
Plaintiff examined her husband, also her GPA, as P.W.1 and an attestor of Ex.A3
sale deed, as P.W.2. Plaintiff filed GPA in favour of P.W.1,
as Ex.A1; judgment in the suit between Arifa Begum and Mehrunnisa Begum was
marked as Ex.A2 followed by Exs.A5 and A6 sale deed and the plan in favour of
Mehrunnisa Begum; Ex.A3 is the original sale deed accompanied by Ex.A4 plan
executed by the first defendant in favour of the plaintiff; Ex.A7 is the tax
receipt dated 09.06.1997 showing that the plaintiff paid the tax for the suit
house and Ex.A8 is the certified copy of the municipal tax assessment receipt
for the year 1980 to show that the house property originally standing in the
name of the APHB was transferred to Arifa Begum and then to Mehrunnisa Begum and
then to the first defendant and the plaintiff.
The second defendant examined
himself as D.W.1 and his cousin brother was examined as D.W.2.
The defendants
marked Exs.B1 to B66, which are all documents, such as passport, bank passbook,
electricity board passbook, letters, electoral card, electricity bills, money
order acknowledgement etc. to establish that the address of the defendants is
shown as that of the suit house where they are residing.
9. The trial Court, on consideration of the oral and documentary evidence and
while considering the issues 1, 3 and 6 together, dismissed the suit on the
ground that the defendants are shown to be in possession for more than 12 years
prior to filing of the suit and hence, held that the defendants acquired title
by adverse possession.
The trial Court found on other issues that the first
defendant has remained ex parte and the plaintiff failed to prove that his
vendor or his mother were ever in possession of the property.
Consequently,
the suit was held to be beyond the period of limitation and dismissed the suit.
10. Mr. Vedula Venkataramana, learned senior counsel for the
appellant/plaintiff, contended that the trial Court has completely gone wrong in
not appreciating that the defendants have not set up any title themselves nor
they have shown by their pleadings as to how they came into possession.
Learned
senior counsel submits that the plaintiff having established title, in the
absence of rival title established by the defendants, their plea of adverse
possession could not have been upheld by the trial Court.
Learned senior counsel
also points out that the defendants did not dispute the title of Arifa Begum in
the written statement and subsequent flow of title to Mehrunnisa Begum is
evidenced by the judgment and decree of the civil Court marked as Ex.A2 and the
registered sale deed, Ex.A5. Further flow of title of the first defendant in
favour of the plaintiff under Ex.A3 and plan, Ex.A4, clearly establish that the
plaintiff is the title holder and as such, there was no ground to deny the
relief of declaration of title and possession, as the defendants never pleaded
adverse possession in terms of requirement of law. Learned senior counsel placed
reliance upon various decisions of the Supreme Court to which reference will be
made at appropriate place.
11. Mr. J. Kanakaiah, learned counsel for the respondents, on the other hand,
submits that the first defendant was not examined nor the alleged gift deed
executed by Mehrunnisa Begum in his favour was produced. Learned counsel also
points out that the original sale deed of Mehrunnisa Begum was also not produced
and as such, the link in the flow of title is clearly absent so far as plaintiff
is concerned. Learned counsel points out that though the first defendant is the
son of Mehrunnisa Begum, the transfer of title of Mehrunnisa Begum through the
first defendant to the plaintiff cannot be accepted as other sons and daughters
of Mehrunnisa Begum are not joined in the said transfer. Learned counsel submits
that the plea of adverse possession is an alternate plea and that the defendants
had proved by ample evidence that they are in possession since 1977 continuously
and openly.
12. On consideration of the rival pleadings and contentions,
the following points arise for consideration.
1. Whether the plaintiff has successfully established her title to the property
especially keeping in view the pleadings of the defendants?
2. Whether the findings of the trial Court upholding the plea of adverse
possession raised by the defendants are justified?
POINT No.1:
13. It has to be noticed that the present suit is one for possession based on
title. Hence, Article 65 of the Limitation Act applies and the pleadings of the
parties have to be appreciated from the point of view of requirement of the said
article. Article 65 of the Limitation Act is as follows:
Description of suits
Period of Limitation
Time from which period begins to run
65.
For possession of immovable property based or any interest therein based on
title.
Twelve years
When the possession of the defendant becomes adverse to the plaintiff
It would be noticed from the above that such suit for possession based on title
can be resisted by the defendants by pleading that they are in possession
adverse to the claim of the plaintiff for over a statutory period of 12 years.
14. The written statement of the respondents/defendants is, primarily, based
on the plea of adverse possession from 1977 and the defendants have
conspicuously neither claimed any title nor have they stated as to how they came
into possession of the property.
15. With this background if we examine the pleadings of the defendants, on
record, it would be evident that the plaintiff's claim for title is in the
following manner, which can also be described as the flow of title, as claimed
by the plaintiff.
The house property originally belongs to APHB, which allotted the same to
Arifa Begum. The said Arifa Begum entered into an agreement of sale with
Mehrunnisa Begum, which resulted into a dispute and resolved by judgment and
decree, Ex.A2 and thereafter, executed sale deed, Ex.A5 dated 22.02.1980 in
favour of Mehrunnisa Begum. Later, Mehrunnisa Begum executed oral gift in favour
of her son dated 20.12.1980 and thereafter, executed a memorandum confirming the
same dated 27.01.1983 in favour of her son/first defendant. The first defendant
executed, Ex.A3, sale deed accompanied by plan, Ex.A4 dated 09.10.1996 in favour
of the plaintiff.
16. As mentioned above, in para 4 of the written statement the defendants
state that "... With regard to para 3 of the plaint which relates to ownership
of Arifa Begum these defendants have nothing to say ...
". Evidently, therefore,
the title of Arifa Begum is not in dispute. Subsequent title which flowed to
Mehrunnisa Begum also cannot be disputed as it is evidenced by a decree of a
competent civil Court,
as referred to above.
It is true that the subsequent memorandum of gift by
Mehrunnisa Begum in favour of the first defendant is not produced as it is said
to have been lost by the plaintiff. The sale deed, Ex.A3 and plan, Ex.A4,
conveyed all right, title and interest of the first defendant in favour of the
plaintiff.
Even assuming, therefore, that the gift in favour of the first
defendant from Mehrunnisa Begum was not established, the first defendant,
admittedly, is the only son of Mehrunnisa Begum.
The said part is evident from
the following statement of witnesses.
17. In the cross-examination of P.W.1, it is stated that
"... Mehrunnisa Begum had only one son by name Aziz (D.1). It is incorrect to
say that Mehrunnisa Begum had four sons apart from D.1 ...". D.W.1 states in
cross-examination dated 12.03.2003 that "... It is true that Mehrunnisa Begum is
the mother of D1 ... ". The defendants have not produced any evidence to show
that Mehrunnisa Begum had other children also apart from the first defendant and
as such, from the evidence on record, it has to be held that the first defendant was the
only son of Mehrunnisa Begum.
Thus, irrespective of whether the gift in his
favour is established or not, the first defendant takes the property of
Mehrunnisa Begum, as the only son and successor in the absence of any other
claim or evidence of any other claim on record. Moreover, the first defendant
does not dispute the title claimed by the plaintiff and remained ex parte and
did not contest the suit.
The sale deed, Ex.A3, executed by the first defendant
in favour of the plaintiff conveys right, title and interest of Mehrunnisa
Begum, which devolves on the first defendant, to the plaintiff. In the absence
of any plea of title set up by the defendants, the title of the plaintiff has to
be held to have been established.
The trial Court has, obviously, failed to
notice all these aspects and had not discussed or bestowed its attention to the
crucial documents and pleadings, as referred to above.
I, therefore, hold that Point No.1 deserves to be answered and is answered
in favour of the appellant/plaintiff.
POINT No.2:
18. So far as plea of adverse possession raised by the defendants is
concerned, the following legal position is required to be kept in mind for
appreciation of the said plea.
19. The decision of the Supreme Court
in NEDUNURI KAMESWARAMMA v. SAMPATI
SUBBA RAO1 is relied upon by the learned senior counsel for the appellant to
substantiate that
when the parties went to trial fully knowing their rival case
and led evidence, absence of an issue cannot be said to be fatal.
Based on the
said proposition even if there is no issue as regards adverse possession,
it cannot be said that the judgment of the trial Court is vitiated only on that
ground.
Similarly, the Supreme Court in SAROOP SINGH v. BANTO2
points out the
distinction between Articles 142 and 144 of the schedule appended to the
Limitation Act, 1903 and the corresponding Articles 64 and 65 under the
Limitation Act, 1963. Paras 28 to 31 of the said decision, which are extracted
below, clearly spell out the principle:
"28. The statutory provisions of the Limitation Act have undergone a change when
compared to the terms of Articles 142 and 144 of the schedule appended to the
Limitation Act, 1908, in terms whereof it was imperative upon the plaintiff not
only to prove his title but also to prove his possession within twelve years,
preceding the date of institution of the suit. However, a change in legal
position has been effected in view of Articles 64 and 65 of the Limitation Act,
1963. In the instant case, plaintiff-respondents have proved their title and,
thus, it was for the first defendant to prove acquisition of title by adverse
possession. As noticed hereinbefore, the first defendant-Appellant did not raise
any plea of adverse possession. In that view of the matter the suit was not
barred.
29. 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 defendant's possession becomes adverse. [See Vasantiben Prahladji
Nayak and Others vs. Somnath Muljibhai Nayak and Others (2004) 3 SCC 376]
30. ''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 Md.
Mohammad Ali (Dead) By LRs. Vs. Jagdish Kalita and Others, (2004) 1 SCC 271,
para 21]
31. Yet again in Karnataka Board of Wakf vs. Government of India and Others
[(2004) 10 SCC 779], it was observed:
"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."
In HEMAJI WAGHAJI JAT v. BHIJHABHAI KHENGARBHAI HARIJAN3 a classic
requirement of plea and proof of adverse possession was noticed by the Supreme
Court. Para 23 is relevant, which is extracted hereunder:
"23. This court had an occasion to examine the concept of adverse possession
in T. Anjanappa v. Somalingappa [(2006) 7 SCC 570]. The court observed that a
person who bases his title on adverse possession must show by clear and
unequivocal evidence that his title was hostile to the real owner and amounted
to denial of his title to the property claimed. The court further observed that:
"20. ... 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."
20. The pleadings and evidence on the part of the defendants though proceeds
to claim that they are in possession of the house property since 1977, no where
they have stated as to how they came into possession.
As noticed from the legal
position, extracted above, a party setting up an adverse possession must establish that it is claiming
open, hostile possession against the person known to be interested in the
property i.e. real owner. The party setting up adverse possession must establish
its animus to possess, obviously, to the true owner. In the absence of animus
and showing that it is claimed against the real owner, the possession for any
length of time cannot fructify into adverse possession.
The evidence of the
defendants,in the present case, is inconsistent inasmuch as though their written statement
is silent,
in the evidence, D.W.1 has tried to project as if the house property
stands in the name of one Asifa Begum, who is stated to be D.W.1's real grand
mother.
Similarly, the water connection is stated to stand in the name of Syed
Ibrahim, who is stated to be his paternal uncle.
Thus, during the evidence, the
plea of setting up title in Asifa Begum and Syed Ibrahim is tried to be
projected contrary to the written statement accepting the title of Arifa Begum.
Various documents filed and accepted by the defendants though show that the
defendants are residing in the suit house but that by itself is not sufficient
to establish the plea of adverse possession.
The said Asifa Begum or Syed
Ibrahim, were not allottees from APHB, as the title of APHB stood transferred to
Arifa Begum, which was admitted by the defendants in their written statement.
The said plea of the defendants by setting up title in Asifa Begum, therefore,
is totally without any foundation and basis, apart from the fact that their
written statement is silent on that aspect.
21. Further, cross-examination of P.W.1 by the defendants does not even give
any suggestion as to adverse possession to her and the cross-examination
proceeds to claim title through Asifa Begum.
In the cross-examination of D.W.1, he admits that though he claimed that Asifa
Begum is her grand mother, he does not know the name of her husband and he does
not have any record nor any document showing when Asifa Begum died nor he has
any document to show allotment in her favour from APHB. He also accepts that he
has never stated in the written statement about the possession of Asifa Begum
over the suit property. He also accepts that he does not know as to in whose
name the mutation of the house stands in the municipal record. While D.W.1 also
accepts knowledge of all transactions between Arifa Begum and Mehrunnisa Begum
and thereafter, Mehrunnisa Begum to the first defendant and from the first
defendant to the plaintiff, he, however, states that he is not a party to the
said documents.
The evidence, on record, therefore, does not satisfy the requirement of
establishing adverse possession.
22. Mr. J. Kanakaiah, learned counsel for the respondents, placed reliance
upon the judgment of this Court in EO, SRI BRAMARAMBA MALLIKARJUNA SWAMY TEMPLE
v. SAI KRUPA HOMES4 for the proposition that in a suit for declaration of title
the onus is entirely on the plaintiff and the plaintiff must establish not only
his title but the title of his vendor also. Learned counsel also relied upon a
decision of the Supreme Court in RANGAMMAL v. KUPPUSWAMI5 to claim that onus
will shift to the opposite party only when plaintiff proves the validity and
genuineness of the document relied upon. That decision, in my view, is not
relevant. Learned counsel placed strong reliance upon a decision of the Supreme
Court in M.M.B CATHOLICOS v. M.P. ATHANASIUS6 for the proposition that plaintiff
in an ejectment suit must succeed on the strength of his own title and not on
the weakness of the defendants. The above proposition is also unexceptionable.
It is also well settled that any one of the co-owners can also seek ejectment.
In fact, in EO, SRI BRAMARAMBA MALLIKARJUNA SWAMY TEMPLE's case (4 supra) it is
stated as under:
"ADVERSE POSSESSION: -
37. This leaves the last main contention of the learned counsel for the
plaintiffs that their title is established by adverse possession on the ground
that their vendors were in possession of the suit lands for over 30 years. The
legal position with regard to claiming adverse possession is well settled as per
the decision of the Supreme Court in AMRENDRA PRATAP SINGH's case (6 supra) and
the relevant paras 22 and 23 are extracted hereunder:
"What is adverse possession?
22. Every possession is not, in law, adverse possession. Under Article 65 of the
Limitation Act, 1963, a suit for possession of immovable property or any
interest therein based on title can be instituted within a period of 12 years
calculated from the date when the possession of the defendant becomes adverse to
the plaintiff. By virtue of Section 27 of the Limitation Act, at the
determination of the period limited by the Act to any person for instituting a
suit for possession of any property, his right to such property stands
extinguished. The process of acquisition of title by adverse possession springs
into action essentially by default or inaction of the owner. A person, though
having no right to enter into possession of the property of someone else, does
so and continues in possession setting up title in himself and adversely to the
title of the owner, commences prescribing title into himself and such
prescription having continued for a period of 12 years, he acquires title not on
his own but on account of the default or inaction on part of the real owner,
which stretched over a period of 12 years results into extinguishing of the
latter's title. It is that extinguished title of the real owner which comes to
vest in the wrongdoer. The law does not intend to confer any premium on the
wrong doing of a person in wrongful possession; it pronounces the penalty of
extinction of title on the person who though entitled to assert his right and
remove the wrong doer and re-enter into possession, has defaulted and remained
inactive for a period of 12 years, which the law considers reasonable for
attracting the said penalty. Inaction for a period of 12 years is treated by the
Doctrine of Adverse Possession as evidence of the loss of desire on the part of
the rightful owner to assert his ownership and reclaim possession.
23. The nature of the property, the nature of title vesting in the rightful
owner, the kind of possession which the adverse possessor is exercising, are all
relevant factors which enter into consideration for attracting applicability of
the Doctrine of Adverse Possession. The right in the property ought to be one
which is alienable and is capable of being acquired by the competitor. Adverse
possession operates on an alienable right. The right stands alienated by
operation of law, for it was capable of being alienated voluntarily and is
sought to be recognized by doctrine of adverse possession as having been
alienated involuntarily, by default and inaction on the part of the rightful
claimant, who knows actually or constructively of the wrongful acts of the
competitor and yet sits idle. Such inaction or default in taking care of one's
own rights over property is also capable of being called a manner of 'dealing'
with one's property which results in extinguishing one's title in property and
vesting the same in the wrong doer in possession of property and thus amounts to
'transfer of immovable property' in the wider sense assignable in the context of
social welfare legislation enacted with the object of protecting a weaker
section."
38. Learned counsel for the appellants contended that the possession claimed
by the respondents is not continuous and is sporadic. The hostile, open and
continuous possession has to be established by the person claiming adverse
possession. In the present case, even assuming that the plaintiffs or their
predecessors were in possession, the plaintiffs have failed to establish that
they had any animus to possess the land adversely. The adverse possession, in
order to fructify into a title must also be against true owner."
23. As discussed in the paragraphs above, adverse possession,
as pleaded by the defendants is firstly neither against the true owner nor
against the person having interest in the property. Further, as to how the said
possession originated is also not stated nor the point of time when it became
adverse is pleaded or proved. In the absence of these vital ingredients,
therefore, it cannot be said that defendants have established adverse
possession. The finding of the trial Court upholding adverse possession pleaded
by the defendants merely on the ground that the defendants were in possession
since 1977 is clearly erroneous and unsustainable as mere possession for any
length of time would not convert itself into adverse possession.
Point No.2 is accordingly held against the defendants.
24. In the result, the appellant is entitled to declaration and possession.
The suit deserves to be decreed as prayed for to the extent of relief of
declaration and possession. To the extent of relief of mesne profits is
concerned, no evidence is adduced by the plaintiff in support of her plea of
mesne profits or its quantum. Hence, the plaintiff is relegated to the trial
Court to make an application under Order XX Rule 12 of the Code of Civil
Procedure, 1908 and seek determination of mesne profits. However, such
determination shall be confined from the period of three years prior to the suit
and thereafter.
The appeal is accordingly allowed with costs throughout.
As a sequel, the miscellaneous applications, if any, shall stand dismissed as
infructuous.
____________________
VILAS V. AFZULPURKR, J
February 7, 2014
suit for declaration and possession was dismissed by the trial Court under
judgment and decree dated 17.02.2004. =
the impugned judgment of the trial Court has proceeded to
dismiss the suit merely on the plea of the respondents/defendants that they are
in adverse possession,though there is no issue framed nor the defendants have established any
ingredients of adverse possession.=
1. Whether the plaintiff has successfully established her title to the property
especially keeping in view the pleadings of the defendants?
2. Whether the findings of the trial Court upholding the plea of adverse
possession raised by the defendants are justified?
It has to be noticed that the present suit is one for possession based on
title. Hence, Article 65 of the Limitation Act applies and the pleadings of the
parties have to be appreciated from the point of view of requirement of the said
article.
Article 65 of the Limitation Act is as follows:
Description of suits Period of Limitation Time from which period begins to run
65.For possession of immovable property based or any interest therein based on
title. Twelve years When the possession of the defendant becomes adverse to the plaintiff
It would be noticed from the above that such suit for possession based on title
can be resisted by the defendants by pleading that they are in possession
adverse to the claim of the plaintiff for over a statutory period of 12 years.
The house property originally belongs to APHB, which allotted the same to
Arifa Begum. The said Arifa Begum entered into an agreement of sale with
Mehrunnisa Begum, which resulted into a dispute and resolved by judgment and
decree, Ex.A2 and thereafter, executed sale deed, Ex.A5 dated 22.02.1980 in
favour of Mehrunnisa Begum. Later, Mehrunnisa Begum executed oral gift in favour
of her son dated 20.12.1980 and thereafter, executed a memorandum confirming the
same dated 27.01.1983 in favour of her son/first defendant. The first defendant
executed, Ex.A3, sale deed accompanied by plan, Ex.A4 dated 09.10.1996 in favour
of the plaintiff.
". Evidently, therefore,
the title of Arifa Begum is not in dispute. Subsequent title which flowed to
Mehrunnisa Begum also cannot be disputed as it is evidenced by a decree of a
competent civil Court,
as referred to above.
It is true that the subsequent memorandum of gift by
Mehrunnisa Begum in favour of the first defendant is not produced as it is said
to have been lost by the plaintiff. The sale deed, Ex.A3 and plan, Ex.A4,
conveyed all right, title and interest of the first defendant in favour of the
plaintiff.
Even assuming, therefore, that the gift in favour of the first
defendant from Mehrunnisa Begum was not established, the first defendant,
admittedly, is the only son of Mehrunnisa Begum. Thus, irrespective of whether the gift in his
favour is established or not, the first defendant takes the property of
Mehrunnisa Begum, as the only son and successor in the absence of any other
claim or evidence of any other claim on record. Moreover, the first defendant
does not dispute the title claimed by the plaintiff and remained ex parte and
did not contest the suit. The sale deed, Ex.A3, executed by the first defendant
in favour of the plaintiff conveys right, title and interest of Mehrunnisa
Begum, which devolves on the first defendant, to the plaintiff. In the absence
of any plea of title set up by the defendants, the title of the plaintiff has to
be held to have been established.I, therefore, hold that Point No.1 deserves to be answered and is answered in favour of the appellant/plaintiff.
Adverse possession -
The pleadings and evidence on the part of the defendants though proceedstitle. Hence, Article 65 of the Limitation Act applies and the pleadings of the
parties have to be appreciated from the point of view of requirement of the said
article.
Article 65 of the Limitation Act is as follows:
Description of suits Period of Limitation Time from which period begins to run
65.For possession of immovable property based or any interest therein based on
title. Twelve years When the possession of the defendant becomes adverse to the plaintiff
It would be noticed from the above that such suit for possession based on title
can be resisted by the defendants by pleading that they are in possession
adverse to the claim of the plaintiff for over a statutory period of 12 years.
The house property originally belongs to APHB, which allotted the same to
Arifa Begum. The said Arifa Begum entered into an agreement of sale with
Mehrunnisa Begum, which resulted into a dispute and resolved by judgment and
decree, Ex.A2 and thereafter, executed sale deed, Ex.A5 dated 22.02.1980 in
favour of Mehrunnisa Begum. Later, Mehrunnisa Begum executed oral gift in favour
of her son dated 20.12.1980 and thereafter, executed a memorandum confirming the
same dated 27.01.1983 in favour of her son/first defendant. The first defendant
executed, Ex.A3, sale deed accompanied by plan, Ex.A4 dated 09.10.1996 in favour
of the plaintiff.
". Evidently, therefore,
the title of Arifa Begum is not in dispute. Subsequent title which flowed to
Mehrunnisa Begum also cannot be disputed as it is evidenced by a decree of a
competent civil Court,
as referred to above.
It is true that the subsequent memorandum of gift by
Mehrunnisa Begum in favour of the first defendant is not produced as it is said
to have been lost by the plaintiff. The sale deed, Ex.A3 and plan, Ex.A4,
conveyed all right, title and interest of the first defendant in favour of the
plaintiff.
Even assuming, therefore, that the gift in favour of the first
defendant from Mehrunnisa Begum was not established, the first defendant,
admittedly, is the only son of Mehrunnisa Begum. Thus, irrespective of whether the gift in his
favour is established or not, the first defendant takes the property of
Mehrunnisa Begum, as the only son and successor in the absence of any other
claim or evidence of any other claim on record. Moreover, the first defendant
does not dispute the title claimed by the plaintiff and remained ex parte and
did not contest the suit. The sale deed, Ex.A3, executed by the first defendant
in favour of the plaintiff conveys right, title and interest of Mehrunnisa
Begum, which devolves on the first defendant, to the plaintiff. In the absence
of any plea of title set up by the defendants, the title of the plaintiff has to
be held to have been established.I, therefore, hold that Point No.1 deserves to be answered and is answered in favour of the appellant/plaintiff.
Adverse possession -
to claim that they are in possession of the house property since 1977, no where
they have stated as to how they came into possession.
As noticed from the legal
position, extracted above, a party setting up an adverse possession must establish that it is claiming
open, hostile possession against the person known to be interested in the
property i.e. real owner. The party setting up adverse possession must establish
its animus to possess, obviously, to the true owner. In the absence of animus
and showing that it is claimed against the real owner, the possession for any
length of time cannot fructify into adverse possession.The evidence of the
defendants,in the present case, is inconsistent inasmuch as though their written statement
is silent, Various documents filed and accepted by the defendants though show that the
defendants are residing in the suit house but that by itself is not sufficient
to establish the plea of adverse possession. While D.W.1 also
accepts knowledge of all transactions between Arifa Begum and Mehrunnisa Begum
and thereafter, Mehrunnisa Begum to the first defendant and from the first
defendant to the plaintiff, he, however, states that he is not a party to the
said documents.
The evidence, on record, therefore, does not satisfy the requirement of
establishing adverse possession. In the result, the appellant is entitled to declaration and possession.
The suit deserves to be decreed as prayed for to the extent of relief of
declaration and possession. To the extent of relief of mesne profits is
concerned, no evidence is adduced by the plaintiff in support of her plea of
mesne profits or its quantum. Hence, the plaintiff is relegated to the trial
Court to make an application under Order XX Rule 12 of the Code of Civil
Procedure, 1908 and seek determination of mesne profits. However, such
determination shall be confined from the period of three years prior to the suit
and thereafter.
The appeal is accordingly allowed with costs throughout.
As a sequel, the miscellaneous applications, if any, shall stand dismissed as
infructuous.
2014 (Feb.Part) judis.nic.in/judis_andhra/filename=10877
THE HON'BLE SRI JUSTICE VILAS V.AFZULPURKAR
CITY CIVIL COURT APPEAL No.166 OF 2004
07-02-2014
Smt. Naseeb Khatoon.... APPELLANT
Syed Abdul Aziz and others.... RESPONDENTS
Counsel for Appellant: MR. V.VENKATARAMANA
Counsel for Respondents : MR. J. KANAKAIAH
<GIST :
>HEAD NOTE:
?Cases referred:
1. AIR 1963 SC 884
2. (2005) 8 SCC 330
3. (2009) 16 SCC 517
4. 2010 (6) ALD 207
5. (2011) 12 SCC 220
6. AIR 1954 SC 526
THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR
CITY CIVIL COURT APPEAL No.166 of 2004
The Court made the following:
JUDGMENT:
This appeal is by the unsuccessful plaintiff, whose suit, O.S.No.1540 of
1996 for declaration and possession was dismissed by the trial Court under
judgment and decree dated 17.02.2004.
2. Mr. V. Venkataramana, learned senior counsel for the appellant, has
pointed out that the impugned judgment of the trial Court has proceeded to
dismiss the suit merely on the plea of the respondents/defendants that they are
in adverse possession,though there is no issue framed nor the defendants have established any
ingredients of adverse possession.
3. Per contra, Mr. J. Kanakaiah, learned counsel for the
respondents/defendants, submits that the plea of adverse possession is only an
alternate plea and even ignoring the finding of the trial Court on that aspect,
the suit was rightly dismissed on the ground that the plaintiff had failed to
adduce any documentary evidence in support of her claim for title.
4. The aforesaid rival contentions, therefore, need to be considered and
resolved.
PLEADINGS:
5. The plaint allegations proceed to state that
the suit schedule house
originally belonged to the Andhra Pradesh Housing Board and it was allotted to
one Arifa Begum.
She is stated to have entered into an agreement of sale with
one Mehrunnisa Begum on 18.01.1961 and the said purchaser came into possession
of the property since then.
Later, there were disputes between Arifa Begum and Mehrunnisa Begum, which
resulted in civil suits, being O.S.Nos.269 and 280 of 1968 and further appeal,
being A.S.No.86 of 1974 before the Chief Judge, City Civil Court, Hyderabad.
In
the said civil proceedings,
the purchaser, Mehrunnisa Begum succeeded and the vendor,
Arifa Begum, executed a registered sale deed in favour of
Mehrunnisa Begum dated 22.02.1980, marked as Ex.A5 and accompanied by plan,
Ex.A6.
It is alleged that Mehrunnisa Begum gifted the property to her son,
defendant No.1, under oral gift deed dated 20.12.1980 and later executed a
memorandum recording the said gift on 27.01.1983.
It is stated that the first
defendant, thereafter, executed a registered sale deed dated 09.10.1996, Ex.A3,
in favour of plaintiff.
It is stated that though the sale deed recites delivery
of possession to the plaintiff,
the first defendant, in fact, stated, at the
time of registration of sale deed, that his maternal uncle and his family are
residing in the said house and that they would vacate the said house in two or
three days of registration. The plaintiff, allegedly, believed the said version
and accepted the execution and registration of sale deed but her subsequent
efforts to get possession failed, ultimately, leading to filing of the present
suit, which was filed on 15.11.1996.
6. The first defendant, vendor of the plaintiff, remained ex parte.
Defendants 2 to 6, 8 and 9, who are occupiers, filed a common written statement
denying the plaint allegations.
Defendants, however, did not contravert the
ownership of Arifa Begum
but disputed that there was any agreement with
Mehrunnisa Begum or that there was any sale deed in her favour. They also denied
the gift, allegedly, executed by Mehrunnisa Begum in favour of the first
defendant, vendor of the plaintiff and also denied the title of the plaintiff.
The sheet anchor of their case was that neither Mehrunnisa Begum nor the first
defendant was ever in possession of the suit house and that the defendants
continued to remain in possession of the suit house since 1977 and as such, they
claimed that the said possession is open, uninterrupted and thereby, the
defendants claimed title by adverse possession.
7. On the basis of the aforesaid pleadings, the trial Court framed the
following issues for consideration:
1. Whether the plaintiff is entitled for the declaration, as asked for?
2. Whether the plaintiff is entitled for the past mesne profits of Rs.2000/-
3. Whether the defendants are liable to be evicted from the suit schedule
property?
4. Whether the plaintiff is entitled to the future mesne profits @ Rs.2000/-
from the date of suit till the delivery of possession?
5. Whether there is no cause of action for the plaintiff to file the suit?
6. Whether the suit is barred by limitation?
7. To what relief?
8. Oral and documentary evidence was led by both sides.
Plaintiff examined her husband, also her GPA, as P.W.1 and an attestor of Ex.A3
sale deed, as P.W.2. Plaintiff filed GPA in favour of P.W.1,
as Ex.A1; judgment in the suit between Arifa Begum and Mehrunnisa Begum was
marked as Ex.A2 followed by Exs.A5 and A6 sale deed and the plan in favour of
Mehrunnisa Begum; Ex.A3 is the original sale deed accompanied by Ex.A4 plan
executed by the first defendant in favour of the plaintiff; Ex.A7 is the tax
receipt dated 09.06.1997 showing that the plaintiff paid the tax for the suit
house and Ex.A8 is the certified copy of the municipal tax assessment receipt
for the year 1980 to show that the house property originally standing in the
name of the APHB was transferred to Arifa Begum and then to Mehrunnisa Begum and
then to the first defendant and the plaintiff.
The second defendant examined
himself as D.W.1 and his cousin brother was examined as D.W.2.
The defendants
marked Exs.B1 to B66, which are all documents, such as passport, bank passbook,
electricity board passbook, letters, electoral card, electricity bills, money
order acknowledgement etc. to establish that the address of the defendants is
shown as that of the suit house where they are residing.
9. The trial Court, on consideration of the oral and documentary evidence and
while considering the issues 1, 3 and 6 together, dismissed the suit on the
ground that the defendants are shown to be in possession for more than 12 years
prior to filing of the suit and hence, held that the defendants acquired title
by adverse possession.
The trial Court found on other issues that the first
defendant has remained ex parte and the plaintiff failed to prove that his
vendor or his mother were ever in possession of the property.
Consequently,
the suit was held to be beyond the period of limitation and dismissed the suit.
10. Mr. Vedula Venkataramana, learned senior counsel for the
appellant/plaintiff, contended that the trial Court has completely gone wrong in
not appreciating that the defendants have not set up any title themselves nor
they have shown by their pleadings as to how they came into possession.
Learned
senior counsel submits that the plaintiff having established title, in the
absence of rival title established by the defendants, their plea of adverse
possession could not have been upheld by the trial Court.
Learned senior counsel
also points out that the defendants did not dispute the title of Arifa Begum in
the written statement and subsequent flow of title to Mehrunnisa Begum is
evidenced by the judgment and decree of the civil Court marked as Ex.A2 and the
registered sale deed, Ex.A5. Further flow of title of the first defendant in
favour of the plaintiff under Ex.A3 and plan, Ex.A4, clearly establish that the
plaintiff is the title holder and as such, there was no ground to deny the
relief of declaration of title and possession, as the defendants never pleaded
adverse possession in terms of requirement of law. Learned senior counsel placed
reliance upon various decisions of the Supreme Court to which reference will be
made at appropriate place.
11. Mr. J. Kanakaiah, learned counsel for the respondents, on the other hand,
submits that the first defendant was not examined nor the alleged gift deed
executed by Mehrunnisa Begum in his favour was produced. Learned counsel also
points out that the original sale deed of Mehrunnisa Begum was also not produced
and as such, the link in the flow of title is clearly absent so far as plaintiff
is concerned. Learned counsel points out that though the first defendant is the
son of Mehrunnisa Begum, the transfer of title of Mehrunnisa Begum through the
first defendant to the plaintiff cannot be accepted as other sons and daughters
of Mehrunnisa Begum are not joined in the said transfer. Learned counsel submits
that the plea of adverse possession is an alternate plea and that the defendants
had proved by ample evidence that they are in possession since 1977 continuously
and openly.
12. On consideration of the rival pleadings and contentions,
the following points arise for consideration.
1. Whether the plaintiff has successfully established her title to the property
especially keeping in view the pleadings of the defendants?
2. Whether the findings of the trial Court upholding the plea of adverse
possession raised by the defendants are justified?
POINT No.1:
13. It has to be noticed that the present suit is one for possession based on
title. Hence, Article 65 of the Limitation Act applies and the pleadings of the
parties have to be appreciated from the point of view of requirement of the said
article. Article 65 of the Limitation Act is as follows:
Description of suits
Period of Limitation
Time from which period begins to run
65.
For possession of immovable property based or any interest therein based on
title.
Twelve years
When the possession of the defendant becomes adverse to the plaintiff
It would be noticed from the above that such suit for possession based on title
can be resisted by the defendants by pleading that they are in possession
adverse to the claim of the plaintiff for over a statutory period of 12 years.
14. The written statement of the respondents/defendants is, primarily, based
on the plea of adverse possession from 1977 and the defendants have
conspicuously neither claimed any title nor have they stated as to how they came
into possession of the property.
15. With this background if we examine the pleadings of the defendants, on
record, it would be evident that the plaintiff's claim for title is in the
following manner, which can also be described as the flow of title, as claimed
by the plaintiff.
The house property originally belongs to APHB, which allotted the same to
Arifa Begum. The said Arifa Begum entered into an agreement of sale with
Mehrunnisa Begum, which resulted into a dispute and resolved by judgment and
decree, Ex.A2 and thereafter, executed sale deed, Ex.A5 dated 22.02.1980 in
favour of Mehrunnisa Begum. Later, Mehrunnisa Begum executed oral gift in favour
of her son dated 20.12.1980 and thereafter, executed a memorandum confirming the
same dated 27.01.1983 in favour of her son/first defendant. The first defendant
executed, Ex.A3, sale deed accompanied by plan, Ex.A4 dated 09.10.1996 in favour
of the plaintiff.
16. As mentioned above, in para 4 of the written statement the defendants
state that "... With regard to para 3 of the plaint which relates to ownership
of Arifa Begum these defendants have nothing to say ...
". Evidently, therefore,
the title of Arifa Begum is not in dispute. Subsequent title which flowed to
Mehrunnisa Begum also cannot be disputed as it is evidenced by a decree of a
competent civil Court,
as referred to above.
It is true that the subsequent memorandum of gift by
Mehrunnisa Begum in favour of the first defendant is not produced as it is said
to have been lost by the plaintiff. The sale deed, Ex.A3 and plan, Ex.A4,
conveyed all right, title and interest of the first defendant in favour of the
plaintiff.
Even assuming, therefore, that the gift in favour of the first
defendant from Mehrunnisa Begum was not established, the first defendant,
admittedly, is the only son of Mehrunnisa Begum.
The said part is evident from
the following statement of witnesses.
17. In the cross-examination of P.W.1, it is stated that
"... Mehrunnisa Begum had only one son by name Aziz (D.1). It is incorrect to
say that Mehrunnisa Begum had four sons apart from D.1 ...". D.W.1 states in
cross-examination dated 12.03.2003 that "... It is true that Mehrunnisa Begum is
the mother of D1 ... ". The defendants have not produced any evidence to show
that Mehrunnisa Begum had other children also apart from the first defendant and
as such, from the evidence on record, it has to be held that the first defendant was the
only son of Mehrunnisa Begum.
Thus, irrespective of whether the gift in his
favour is established or not, the first defendant takes the property of
Mehrunnisa Begum, as the only son and successor in the absence of any other
claim or evidence of any other claim on record. Moreover, the first defendant
does not dispute the title claimed by the plaintiff and remained ex parte and
did not contest the suit.
The sale deed, Ex.A3, executed by the first defendant
in favour of the plaintiff conveys right, title and interest of Mehrunnisa
Begum, which devolves on the first defendant, to the plaintiff. In the absence
of any plea of title set up by the defendants, the title of the plaintiff has to
be held to have been established.
The trial Court has, obviously, failed to
notice all these aspects and had not discussed or bestowed its attention to the
crucial documents and pleadings, as referred to above.
I, therefore, hold that Point No.1 deserves to be answered and is answered
in favour of the appellant/plaintiff.
POINT No.2:
18. So far as plea of adverse possession raised by the defendants is
concerned, the following legal position is required to be kept in mind for
appreciation of the said plea.
19. The decision of the Supreme Court
in NEDUNURI KAMESWARAMMA v. SAMPATI
SUBBA RAO1 is relied upon by the learned senior counsel for the appellant to
substantiate that
when the parties went to trial fully knowing their rival case
and led evidence, absence of an issue cannot be said to be fatal.
Based on the
said proposition even if there is no issue as regards adverse possession,
it cannot be said that the judgment of the trial Court is vitiated only on that
ground.
Similarly, the Supreme Court in SAROOP SINGH v. BANTO2
points out the
distinction between Articles 142 and 144 of the schedule appended to the
Limitation Act, 1903 and the corresponding Articles 64 and 65 under the
Limitation Act, 1963. Paras 28 to 31 of the said decision, which are extracted
below, clearly spell out the principle:
"28. The statutory provisions of the Limitation Act have undergone a change when
compared to the terms of Articles 142 and 144 of the schedule appended to the
Limitation Act, 1908, in terms whereof it was imperative upon the plaintiff not
only to prove his title but also to prove his possession within twelve years,
preceding the date of institution of the suit. However, a change in legal
position has been effected in view of Articles 64 and 65 of the Limitation Act,
1963. In the instant case, plaintiff-respondents have proved their title and,
thus, it was for the first defendant to prove acquisition of title by adverse
possession. As noticed hereinbefore, the first defendant-Appellant did not raise
any plea of adverse possession. In that view of the matter the suit was not
barred.
29. 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 defendant's possession becomes adverse. [See Vasantiben Prahladji
Nayak and Others vs. Somnath Muljibhai Nayak and Others (2004) 3 SCC 376]
30. ''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 Md.
Mohammad Ali (Dead) By LRs. Vs. Jagdish Kalita and Others, (2004) 1 SCC 271,
para 21]
31. Yet again in Karnataka Board of Wakf vs. Government of India and Others
[(2004) 10 SCC 779], it was observed:
"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."
In HEMAJI WAGHAJI JAT v. BHIJHABHAI KHENGARBHAI HARIJAN3 a classic
requirement of plea and proof of adverse possession was noticed by the Supreme
Court. Para 23 is relevant, which is extracted hereunder:
"23. This court had an occasion to examine the concept of adverse possession
in T. Anjanappa v. Somalingappa [(2006) 7 SCC 570]. The court observed that a
person who bases his title on adverse possession must show by clear and
unequivocal evidence that his title was hostile to the real owner and amounted
to denial of his title to the property claimed. The court further observed that:
"20. ... 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."
20. The pleadings and evidence on the part of the defendants though proceeds
to claim that they are in possession of the house property since 1977, no where
they have stated as to how they came into possession.
As noticed from the legal
position, extracted above, a party setting up an adverse possession must establish that it is claiming
open, hostile possession against the person known to be interested in the
property i.e. real owner. The party setting up adverse possession must establish
its animus to possess, obviously, to the true owner. In the absence of animus
and showing that it is claimed against the real owner, the possession for any
length of time cannot fructify into adverse possession.
The evidence of the
defendants,in the present case, is inconsistent inasmuch as though their written statement
is silent,
in the evidence, D.W.1 has tried to project as if the house property
stands in the name of one Asifa Begum, who is stated to be D.W.1's real grand
mother.
Similarly, the water connection is stated to stand in the name of Syed
Ibrahim, who is stated to be his paternal uncle.
Thus, during the evidence, the
plea of setting up title in Asifa Begum and Syed Ibrahim is tried to be
projected contrary to the written statement accepting the title of Arifa Begum.
Various documents filed and accepted by the defendants though show that the
defendants are residing in the suit house but that by itself is not sufficient
to establish the plea of adverse possession.
The said Asifa Begum or Syed
Ibrahim, were not allottees from APHB, as the title of APHB stood transferred to
Arifa Begum, which was admitted by the defendants in their written statement.
The said plea of the defendants by setting up title in Asifa Begum, therefore,
is totally without any foundation and basis, apart from the fact that their
written statement is silent on that aspect.
21. Further, cross-examination of P.W.1 by the defendants does not even give
any suggestion as to adverse possession to her and the cross-examination
proceeds to claim title through Asifa Begum.
In the cross-examination of D.W.1, he admits that though he claimed that Asifa
Begum is her grand mother, he does not know the name of her husband and he does
not have any record nor any document showing when Asifa Begum died nor he has
any document to show allotment in her favour from APHB. He also accepts that he
has never stated in the written statement about the possession of Asifa Begum
over the suit property. He also accepts that he does not know as to in whose
name the mutation of the house stands in the municipal record. While D.W.1 also
accepts knowledge of all transactions between Arifa Begum and Mehrunnisa Begum
and thereafter, Mehrunnisa Begum to the first defendant and from the first
defendant to the plaintiff, he, however, states that he is not a party to the
said documents.
The evidence, on record, therefore, does not satisfy the requirement of
establishing adverse possession.
22. Mr. J. Kanakaiah, learned counsel for the respondents, placed reliance
upon the judgment of this Court in EO, SRI BRAMARAMBA MALLIKARJUNA SWAMY TEMPLE
v. SAI KRUPA HOMES4 for the proposition that in a suit for declaration of title
the onus is entirely on the plaintiff and the plaintiff must establish not only
his title but the title of his vendor also. Learned counsel also relied upon a
decision of the Supreme Court in RANGAMMAL v. KUPPUSWAMI5 to claim that onus
will shift to the opposite party only when plaintiff proves the validity and
genuineness of the document relied upon. That decision, in my view, is not
relevant. Learned counsel placed strong reliance upon a decision of the Supreme
Court in M.M.B CATHOLICOS v. M.P. ATHANASIUS6 for the proposition that plaintiff
in an ejectment suit must succeed on the strength of his own title and not on
the weakness of the defendants. The above proposition is also unexceptionable.
It is also well settled that any one of the co-owners can also seek ejectment.
In fact, in EO, SRI BRAMARAMBA MALLIKARJUNA SWAMY TEMPLE's case (4 supra) it is
stated as under:
"ADVERSE POSSESSION: -
37. This leaves the last main contention of the learned counsel for the
plaintiffs that their title is established by adverse possession on the ground
that their vendors were in possession of the suit lands for over 30 years. The
legal position with regard to claiming adverse possession is well settled as per
the decision of the Supreme Court in AMRENDRA PRATAP SINGH's case (6 supra) and
the relevant paras 22 and 23 are extracted hereunder:
"What is adverse possession?
22. Every possession is not, in law, adverse possession. Under Article 65 of the
Limitation Act, 1963, a suit for possession of immovable property or any
interest therein based on title can be instituted within a period of 12 years
calculated from the date when the possession of the defendant becomes adverse to
the plaintiff. By virtue of Section 27 of the Limitation Act, at the
determination of the period limited by the Act to any person for instituting a
suit for possession of any property, his right to such property stands
extinguished. The process of acquisition of title by adverse possession springs
into action essentially by default or inaction of the owner. A person, though
having no right to enter into possession of the property of someone else, does
so and continues in possession setting up title in himself and adversely to the
title of the owner, commences prescribing title into himself and such
prescription having continued for a period of 12 years, he acquires title not on
his own but on account of the default or inaction on part of the real owner,
which stretched over a period of 12 years results into extinguishing of the
latter's title. It is that extinguished title of the real owner which comes to
vest in the wrongdoer. The law does not intend to confer any premium on the
wrong doing of a person in wrongful possession; it pronounces the penalty of
extinction of title on the person who though entitled to assert his right and
remove the wrong doer and re-enter into possession, has defaulted and remained
inactive for a period of 12 years, which the law considers reasonable for
attracting the said penalty. Inaction for a period of 12 years is treated by the
Doctrine of Adverse Possession as evidence of the loss of desire on the part of
the rightful owner to assert his ownership and reclaim possession.
23. The nature of the property, the nature of title vesting in the rightful
owner, the kind of possession which the adverse possessor is exercising, are all
relevant factors which enter into consideration for attracting applicability of
the Doctrine of Adverse Possession. The right in the property ought to be one
which is alienable and is capable of being acquired by the competitor. Adverse
possession operates on an alienable right. The right stands alienated by
operation of law, for it was capable of being alienated voluntarily and is
sought to be recognized by doctrine of adverse possession as having been
alienated involuntarily, by default and inaction on the part of the rightful
claimant, who knows actually or constructively of the wrongful acts of the
competitor and yet sits idle. Such inaction or default in taking care of one's
own rights over property is also capable of being called a manner of 'dealing'
with one's property which results in extinguishing one's title in property and
vesting the same in the wrong doer in possession of property and thus amounts to
'transfer of immovable property' in the wider sense assignable in the context of
social welfare legislation enacted with the object of protecting a weaker
section."
38. Learned counsel for the appellants contended that the possession claimed
by the respondents is not continuous and is sporadic. The hostile, open and
continuous possession has to be established by the person claiming adverse
possession. In the present case, even assuming that the plaintiffs or their
predecessors were in possession, the plaintiffs have failed to establish that
they had any animus to possess the land adversely. The adverse possession, in
order to fructify into a title must also be against true owner."
23. As discussed in the paragraphs above, adverse possession,
as pleaded by the defendants is firstly neither against the true owner nor
against the person having interest in the property. Further, as to how the said
possession originated is also not stated nor the point of time when it became
adverse is pleaded or proved. In the absence of these vital ingredients,
therefore, it cannot be said that defendants have established adverse
possession. The finding of the trial Court upholding adverse possession pleaded
by the defendants merely on the ground that the defendants were in possession
since 1977 is clearly erroneous and unsustainable as mere possession for any
length of time would not convert itself into adverse possession.
Point No.2 is accordingly held against the defendants.
24. In the result, the appellant is entitled to declaration and possession.
The suit deserves to be decreed as prayed for to the extent of relief of
declaration and possession. To the extent of relief of mesne profits is
concerned, no evidence is adduced by the plaintiff in support of her plea of
mesne profits or its quantum. Hence, the plaintiff is relegated to the trial
Court to make an application under Order XX Rule 12 of the Code of Civil
Procedure, 1908 and seek determination of mesne profits. However, such
determination shall be confined from the period of three years prior to the suit
and thereafter.
The appeal is accordingly allowed with costs throughout.
As a sequel, the miscellaneous applications, if any, shall stand dismissed as
infructuous.
____________________
VILAS V. AFZULPURKR, J
February 7, 2014
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