Holding

Under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish title by adverse possession.

Summary

M. Durai sued Madhu and others for title to a parcel of land, relying on a sale deed dated 19‑Aug‑1978. The defendants claimed they had acquired title by adverse possession, having occupied the land openly and continuously for more than twelve years. The trial court accepted the defendants' claim and dismissed the suit; the first appellate court reversed that decision in favour of the plaintiff. The Madras High Court, on second appeal, held that the plaintiff must prove his title and that the burden of proof lay on him, thereby upholding the trial court’s dismissal. The Supreme Court held that under the Limitation Act, 1963, once the plaintiff establishes his title, the burden shifts to the defendant to prove adverse possession, and that the High Court had framed a wrong question of law. Consequently, the appeal was allowed and the matter remitted to the High Court for fresh consideration.

Issues considered

Whether the burden of proof in an adverse possession claim lies on the plaintiff or the defendant under the Limitation Act, 1963.
Whether the suit is barred by limitation when the plaintiff relies on a sale deed and the defendants claim possession for the statutory period.

Legislation cited

Limitation Act, 1908s. Article 142, s. Article 144
Limitation Act, 1963s. Article 64, s. Article 65

Subjects

adverse possessionburden of proofLimitation Acttitle by sale deedcivil appealstatutory periodprescription

Judgment

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A M.DURAI
v.
MADHU AND ORS.

JANUARY 11, 2007

B [S.B. SINHA AND MARKANDEY KA TJU, JJ.]

Adverse possession-Burden to prove-Suit claiming title by sale
deed-Defendants claiming adverse possession-Dismissal of suit-First
Appellate Court holding in favour of plaintiff-High Court formulated
question as to whether the lower appellate court was correct putting the
c burden to prove the possession on defendant while it was on the plaintiff
to prove his title-And was decided in favour of defendants-On appeal,
held: Once the plaintiff proves his title, the burden shifts to the defendant
to establish perfection of his title by adverse possession-High Court
formulated a wrong question-Hence matter remitted to High Court-
D Limitation Act, 1908-Articles 142 and 144-Lirnitation Act, 1963-
Evidence-Burden of proof

Appellant-Plaintiff filed a suit claiming title over the suit property on
the strength ofa sale deed. Respondents-defendants claimed to have perfected
their title to the property by adverse possession. Trial Court accepting the
E plea of defendants, dismissed the suit. Order of trial court was reversed by
First Appellate Court. In second appeal, High Court held that evidence
adduced proves that only the defendants were in possession and enjoyment
of the suit property for over the statutory period. It was for the plaintiff to
establish his title over the suit property. Hence the present appeal.
F
Allowing the appeal, the Court ......
HELD: 1. The High Court formulated a wrong question. The change
in the position in law as regards the burden of proof as was obtaining

G
in the Limitation Act, 1908 vis-a-vis Limitation Act, 1963 is evident.
Whereas in terms of Articles 142 and 144 of the old Limitation Act, the
Plaintiff was bound to prove his title as also possession within twelve years
preceding the date of institution of the suit under the Limitation Act, 1963
-
once the plaintiff proves his title, the burden shifts to the defendant to
establish that he has perfected his title by adverse possession.
H [Paras 7 and 8) [819-E-F]
816
M. DURAi v. MADHU [SINHA, J.] 817

Saroop Singh v. Banta and Ors., [2005) 8 SCC 330; T. Anjanappa A
and Ors. v. Somalingappa and Anr., [2006) 7 SCC 570, relied on.

2. Impugned judgment cannot be sustained and the matter is remitted
to the High Court for consideration of the Second Appeal afresh after
formulating an appropriate substantial question of law arising, if any.
[Para 11] [821-B-C\ B

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6195 of2000.

From the Final Judgment and Order dated 16.2.1999 of the High Court
of Judicature at Madras in S.A. No. 671/1987. C

R. Nedumaran, S. Beno Bencigar and Rajiv Rufus, for the
Appellant.

The Judgment of the Court was delivered by
D
S.B. SINHA, J.: 1. The Plaintiff is in appeal before us from a judgment
and decree dated 16.2.1999 passed by the High Court of Judicature at
Madras in Second Appeal No. 671/87 whereby and whereunder the appeal
preferred by the respondents herein from a judgment and order dated
25.11.1986 of the Subordinate Judge. Tiruvallur, Tamil Nadu which in tum E
reversed the judgment and decree dated 10.9.1984 dismissing the Suit of the
appellant was allowed. The plaintiff claimed title over the suit property by
reason of a deed of sale dated 19.8.1978. The respondent, admittedly, are in
possession of the said property. As the respondents refused to vacate the
suit land, the aforementioned suit was filed. The respondents in their written F
statement, inter alia, contended as follows :

- " ... The Plaintiff is not the owner of the suit items. These defendants
are living in the Cherinatham and the defendants are in continuous, open
and uninterrupted possession of the house site and the backyard. In the
backyard, there are very huge Othia trees, date trees. Portia trees and other G
trees which are there for generations. They were planted by the defendants'
ancestors. These defendants have also perfected title to the said portions
in their occupation for more than the statutory period"

2. The learned trial Judge framed several issues; one of them being H
818 SUPREME COURT REPORTS [2007] I S.C.R.

A "Whether the defendants perfected title to the suit property by adverse
possession?"

3. As indicated hereinbefore, the learned trial Judge dismissed the suit
of the appellant holding that the defendants have perfected their title by
remaining in possession of the suit land for a period of more than twelve
B years. Jn the appeal preferred thereagainst by the appellant, the Subordinate
Judge. Tiruvallur reversed the said findings of the learned trial Judge
holding as follows :

"There is no proof to the order to say that the vendor of the suit
c property who sold the same to the plaintiff in 1969 had the
knowledge of the Defendant's possession over the property, that
though he sold the land to the extent of I .59 acres in Survey No.
83, the possession was obtained only after deducting the 5 cents
of the ,land under the possession and the defendants and that the
same was the intention of the plaintiff and further as pointed out
D by the learned counsel for Appellant that the order of the Lower
Court that it is the intention of the plaintiff is only the Lower
Court's assumption."

4. A Second Appeal thereagainst was filed by the respondents. The
E High Court framed the following substantial question of law.

"Whether the Lower Appellate Court is correct in having reversed
the judgment of the trial court without even adverting its attention
to important question like adverse possession and without even
considering the evidence available on record, but misguiding itself .....
F
by a strange proposition that the burden lies on the defendants in
this case whereas the onus is entirely on the plaintiff tc prove the
case put forward by him?"

5. The High Court sought to appreciate the entire evidence and came
G to the following conclusion :

" ........ The trial Court on a careful analysis of the entire evidence has
considered that the physical possession of the plaintiff excludes
the dt.fendants' possession and actually the extent to the west of
H the suit property alone was in the physical possession and
M. DURAi v. MADHU [SINHA, J .] 819

enjoyment of the plaintiff, which extent was alone in the possession .A
and enjoyment of the vendor. Even though an extent of 1.59 cents
was conveyed to the plaintiff under Ex.A. I, the evidence adduced
proves that only the defendants are in possession and enjoyment
of the suit property for over the statutory period. So the judgment
and decree passed by the first Appellate Court has to necessarily
be interfered with. It is for the plaintiff to establish his title over the
B
suit property. Even though the judgment and decree of the first
·-,. Appellate Court being based on facts, cannot be interfered with in
this Second Appeal, the first appellate court has not considered the
evidence adduced in coming to such conclusion and this has
necessitated this Court to interfere with the finding of the first c
Appellate Court in the Second Appeal."

6. Learned counsel appearing on behalf of the appellant inter alia
submitted that the purported substantial question of law formulated by the
High Court was mis-conceived inasmuch as in terms of Articles 64 and 65
of the Limitation Act, 1963, the burden of proof to establish that they had D
perfected their title by remaining in possession would be on the defendants.
We see force in the submissions of the learned counsel.

7. The change in the position in law as regards the burden of proof
as was obtaining in the Limitation Act, 1908 vis-a-vis Limitation Act, 1963 E
is evident. Whereas in terms of Articles 142 and 144 of the old Limitation
Act, the Plaintiff was bound to prove his title as also possession within
twelve years preceding the date of institution of the suit under the Limitation
-. Act, 1963, once the plaintiff proves his title, the burden shifts to the
defendant to establish that he has perfected his title by adverse possession.
F
8. The High Comt, therefore, evidently formulated a wrong question.

9. This asµect of the matter has since been considered by this
Court in Saroop Singh v. Banic & Ors., [2005] 8 SCC 330 wherein it was
held thus:
G
"28. The statutory provisions of the Limitation Act have undergone
a change when compared to the terms of Article 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 H
820 SUPREME COURT REPORTS [2007] I S.C.R.

A 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, .the 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
B 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 the defendant's possession
becomes adverse. (See Vasantiben Prah/adji Nayak v. Somnath
c Muyibhat Nayak.)

30. "Animus Possidendi' is one of the ingredients of adverse
possession. Unless the person possessing the land had a requisite
animus the period for prescription does not commence. As in the
D 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. Jagdish
Kalita, SCC 21.)"

IO. Yet again in T. Anianappa & Ors. v. Somalingappa & Anr., [2006]
E 7 sec 570 this Court opined as under:

"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. The person setting up
adverse possession may have been holding under the rightful
owner title e.g. trustees, guardians, bailiffs or agents ......"

It was further more held as under :

"It is well-recognised proposition in law that mere possession
however long does not necessarily mean that it is adverse to the
G true owner. Adverse possession really means the hostile possession
which is expressly or impliedly in denial of the 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
H
M. DURAI v. MADHU [SINHA, J.] 821

such possession in denial of the true owner's title must be peaceful, A
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."
B
11. In view of the aforementioned authoritative pronouncements of this
Court, we are of the opinion that the impugned judgment cannot be
sustained and this should be set aside and the matter be remitted to the High
Court for consideration of the Second Appeal afresh after formulating an
appropriate substantial question of law arising, if any. The appeal is allowed. C
No. costs.

K.K.T. Appeal allowed.

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