Holding

Adverse possession cannot be established unless the claimant proves hostile, open, continuous possession denying the true owner's title, and the burden of proof lies on the claimant; the High Court erred in finding the respondents had proved adverse possession.

Summary

The appellants filed a suit claiming title to a municipal allotment, purchasing the land two days after filing, and alleged that the respondents had encroached on a portion of the property by erecting a hutment three years earlier. The respondents contended that they had been in possession since 1969, paid municipal taxes, and were in adverse possession of the land, which they claimed was government property and a declared slum area. The High Court held that the respondents had established adverse possession and set aside the first appellate court's decree in favour of the appellants. On appeal, this Court examined the requirements of adverse possession, emphasizing that the claimant must prove hostile, open, continuous possession that denies the true owner's title, and that the burden of proof lies on the adverse possessor under Section 65 of the Limitation Act. Finding that the respondents had not satisfied these elements and that the High Court had erred in its analysis, the Court allowed both appeals, restoring the first appellate court's orders and dismissing the respondents' claims.

Issues considered

Whether the respondents proved the elements of adverse possession, including hostile, open and continuous possession denying the true owner's title.
Whether the appellants could claim title based on municipal records and a purchase made after filing the suit.
Whether the High Court erred in setting aside the first appellate court's findings on possession and title.

Legislation cited

Limitation Act, 1963s. 64, s. 65

Subjects

adverse possessionLimitation Actburden of proofmunicipal recordstitle by possessionslum areacivil appealproperty disputeencroachment

Judgment

A T. ANJANAPPA AND ORS.
v.
-
SOMALINGAPPA AND ANR.

AUGUST 22, 2006

B [ARIJIT PASA YAT AND LOK.ESH WAR SINGH PANTA, JJ.]

Adverse Possession-meaning of and requirements of acquisition of
title by adverse possession-Suit claiming title to the property on the basis
C of Municipal records-Possession of the property by plaintiff three years
prior to filing of the suit-Allegation against defendants of encroachments
on a portion of the property-Defendants stating that the land belonged to
Government and they were in adverse possession of the same-Held:
Defendants' plea of being in adverse possession of the property is not
established-If the occupant is not sure of the actual ownership of the
D property, the question of his being in hostile possession and denying the title
of the true owner does not arise-A possession, in order to be adverse, should
be a hostile possession in express or implied denial of the title of the true
owner-Such possession must be peaceful, open and continuous-Ifpossession
can be referred to a lawful title, the same cannot be considered to be
adverse-The burden to prove is on the person who bases his title on adverse
E possession-Limitation Act, 1963-Section 65-Evidence-Burden of proof

Words and Phrases: "

Adverse possession "-Meaning of

F Appellants filed a suit claiming title to the property in question by virtue
of entries in the Municipal records. Appellants purchased the property from
its owner two days after filing of the suit. The erstwhile owner had mortgaged
the property in favour of the appellant. The allegation of the appellants was
that the respondents had encroached upon a portion of the property putting a
G hutment about 3 years prior to filing of the suit. Respondents denied the title
of the appellants, contending that they were in possession of the premises for
about 16 years·; that the land was a Government land; that they were paying
tax to the municipality; that they were in adverse possession of the land; and
that the area had been declared a slum area. Respondents also filed a counter
suit. Trial Court dismissed the suit of the appellants and allowed that of the
fl 200
T. ANJANAPPA v. SOMALINGAPPA 201
respondents. Appellate Court upheld the title of the appellants and granted A
them relief of possession setting aside the judgment of trial court in both the
suits; In second appeal, High Court held that the respondents had established
their plea of adverse possession of a portion of the property, hence grant of
decree for declaration of title and possession to that extent in favour of
appellants was bad in law. Hence the present appeals.
B
Allowing the appeals, the Court

HELD: l. 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. The requirements of proving adverse C
pnssession 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. Equally, the High
Court has proceeded on the basis that the respondent in his suit had D
established his plea of possession. The factual position does not appear to have
been analysed by the High Court in the proper perspective. When the High
Court was upsetting the findings recorded by the court below i.e., the first
appellate Court, it would have been proper for the High Court to analyse the
factual position in detail which has not been done. No reason has been indicated
to show as to why it was differing from the factual findings recorded by it. E
The first appellate Court had categorically found that the appellants in the
present appeals had proved possession three years prior to filing of the suit.
This finding has not been upset. Therefore, the High Court was not justified
in setting aside the first appellate Court's order. (209-B-Fl

2.1. The concept of adverse possession contemplates a hostHe possession F
i.e. a possession which is expressly or impliedly in denial of the title of the
true owner. 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 G
enjoyment of his property. 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. Where possession
can be referred to a lawful title, it will not be considered to be adverse.
(206C-F) H
202 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A Vidya Devi v. Prem Prakash and Ors., I1995( 4 sec 496, referred to.

2.2. 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
B from it, including the rightful owm:r), he is in adverse possession of it.
(207-E-F(

Wardv. Carttar. (1866) LR I Eq.29, referred to.

2.3. Adverse possession not only entitles the adverse possessor, like
C 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
D this although the true owner is ignorant of the adverse possessor being in
occupation. (207-G-H; 208-A(

Rains v. Buxion, (1880) 14 Ch D 537, referred to.

2.4. 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
E 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. (208-D-E)

Halsbwy 's 1953 Edition, Volume-I, referred to.

F 2.5. Mere possession however long does not necessarily mean that it is
adverse to the true owner and 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 nece.ssar.i: that there should be evidence of
G the adverse possessor actually informing the real owner of the former's hostile
action. [298-G-H; 209-A-B)

2.6. 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
H show by clear and unequivocal evidence i.e. possession was hostile to the real
T.ANJANAPPAv. SOMALINGAPPA [PASAYAT,J.] 203

owner and amounted to a denial of his title to the property claimed. In deciding A
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. (207-A-B]

Annasaheb v. B.B. Patil, AIR (1995) SC 895, referred to.
B
CIVIL APPELLATEmRISDICTION : Civil Appeal No. 3594 of 2006.

From the Judgment and Order dated 5.9.2003 of the High Court of
Kamataka at Bangalore in R.S.A. Nos. 275/99 and 276of1999.

Girish Ananthamurthy and P.P. Singh for the Appellants. c
Basava Prabhu S. Patil, A.S. Bhasme and B. Subrahmanya Prasad for the
Respondents.

The Judgment of the Court was delivered by
D
ARIJIT PASAYAT, J. Leave granted.

Challenge in these appeals is to the correctness of the judgment rendered
by a learned Single Judge of the Karnataka High Court allowing in part two
SecoJld Appeals filed by the respondents in the present appeals.
E
Background facts in a nutshell are as under:

Two appeals were filed before the High Court against the judgment and
decree passed by Civil Judge, ·senior Division, Bellary in RA No.15/94 and RA
,.
No.16/94 arising out of O.S.No.168/85 and O.S.No.286/88 respectively on the
file of Principal Munsiff, Bellary. O.S.No.168/85 was filed by the appellants. F
They filed a suit for declaration of title in respect of the suit schedule property
described as a house site measuring 25' x 75' pictorially described in the rough
sketch accompanying the plaint and which form part ofCTS No.373/3A/IA/
2/B in Block No.XXIV, Ward No.XXII, Devinagar, Bellary City. The plaintiffs
claimed title to the property by virtue of entries in the Municipality records. G
The suit site was originally granted by Municipality to one Thippanna in the
year 1962 from whom one Siddalinagana Gouda purchased in the year 1971
under registered sale deed. One Narasimhappa purchased the suit property
from Siddalingana Gouda by a registered sale deed in the year 1978. The
plaintiffs purchased the suit site from Narasimhappa under Ex.P. I on 29.5.1985,
two days after filing of the suit. It is said that the erstwhile owner Narasimhappa H
204 SUPREME COURT REPORTS (2006] SUPP. 5 S.C.R.

A had mortgaged the property in favour of plaintiff. According to plaintiffs, the
defendants had encroached upon a portion of the suit property to an extent
of 15' x 25', put a hutment about three years prior to the suit, and therefore,
on the strength of title the plaintiff sought for the relief of declaration of title
and poss~ssion and also sought for injunction against the defendant not to
B repair or put up any permanent structure on the suit site. The defendants filed
the written statement denying the title of the plaintiff contending that the
defendants are in possession of the premises since the year 1969 by putting
up hutment and paying tax to the municipality. The defendants also contended
that the property is a government land and they are in adverse possession
of the property. A defence was also taken that the area has been declared as
C a slum area. Hence, they prayed for dismissal of the suit.

During the pendency of O.S. No.168/85, the defendant No. I there.in filed
a suit in O.S. No.286/88. The plaint averments are reproduction of the written
statement in 0.S.No.168/85.

D The trial Court dismissed the suit ofT. Anjanappa, T. Sekharam and T.
Gov ind (plaintiffs in O.S. No.168/85) by rejecting claim of plaintiffs' title to the
property. The suit filed by T. Somalingappa i.e. O.S.No.286/88 came to be
allowed. Present appellants filed two appe~ ls against the judgment and decree
in O.S.No.168/85 and O.S.No.286/88 before the Civil Judge, Senior Division,
Bellary. In appeal, the appellate court set aside the judgment and decree of
E the trial Court in O.S.No.168/85 and O.S.No.286/88, upheld the title of the
plaintiffs and also granted relief of possession and thus allowed both the
appeals filed by the plaintiffs. Second Appeals were filed challenging
correctness thereof by T. Somalingappa and Dakshyanamma.

The following substantial questions of law were formulated at the time
F
of admission :

I. Though the appellate Court has concurred with the findings of the
Principal Munsiff regarding the appellant's possession and enjoyment
of the property even before the purchase of the property by the
G respondent, whether the appellate court was justified in dismissing
the suit of the appellants for injunction whic:h was decreed by the
Principal Munsiff.

2. The suit schedule property which was declared by the Government
as a slum area, the action of the Municipality in granting allotment of
H the same in favour of the other persons. Whether the Municipality
T. ANJANAPPA v. SOMALINGAPPA [PASAYA T, J.] 205

has got the power to allow the site, which was declared as a slum area A
by the government in favour of other persons.

The following additional substantial questions of law were framed at the
time of hearing:

(1) Whether the appellate Court was right in declaring title of the B
plaintiffs on the basis of Ex.P. I which came to be executed after
filing of the suit in O.S.No.168/85?
(2) Whether the appellate court committed error in appreciating the
orai and documentary evidence regarding the plea of adverse
possession put forth by the defendants and the findings thereon C
are perverse and contrary to evidence on record?

According to the High Court, ticklish situation arose in the legal combat
between the parties. When the suit 0.S.No.168/85 was filed, obviously the
plaintiffs had no title to the property, but they sought for declaration of title.
In the absence of title, there was no basis for the plaintiffs to seek possession D
from the defendants. It was contended that the plaintiffs had taken the
property as a security in a mortgage transaction from the erstwhile owner.
High Court noted that the mortgage deed is not produced. It was observed
that there is nothing on record to show that it was a possessory mortgage.
Unless the plaintiffs had some kind of title or possessory interest they could
not have sought for relief for possession. E
According to the High Court though the defendants were in possession
under the mistaken assumption of title with themselves or with the Government,
same cannot be a ground to hold that the possession is not a hostile
possession from the standpoint of the real owner. It was further held that the
real owner when dispossessed under Article 64 of the Indian Limitation Act, F
I963 (in short the 'Limitation Act') has to seek possession within 12 years
from the date of dispossession. It was therefore held that the findings of the
court below i.e. first appellate Court that the defendants had failed to prove
the plea of adverse possession is perverse and contrary to law and evidence
on record. After holding so, it was further held that though the documents G
produced by the defendants do not fully establish the case of adverse
possession to the full extent of 15' x 75', yet the stand of the defendants about
actual physical possession read with the admission of the plaintiffs sufficiently
establish that the defendants were in adverse possession of 15' x 75'. It was
further held that even otherwise, the suit for possession to that extent was
not filed within 12 years of dispossession and therefore grant of decree for H
206 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A declaration of the title and possession to that extent in favour of plaintiffs
(appellants herein) is bad in law arid liable to be set aside.

Learned counsel for the appellants submitted that the High Court's
approach is clearly unsustainable in law. The concept of adverse possession
has been clearly misunderstood by the High Court.
B
Learned counsel for the respondents on the other hand submitted that
in view of the accepted position that the defendants were in possession for
more than 12 years and that actual physical possession was with them the
High Court cannot be faulted. -
C 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
D 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
E that person in denial of the owner's right excluded him from the enjoyment
of his property.

Possession to be adverse must be possession by a person who does
not acknowledge the .other's rights but denies them. It is a matter of
fundamental principle of law that where possession can be referred to a lawful
F title, it will not be considered to be adverse. It is on the basis of this principle
that it has been laid down that since the possession of one co-owner can be
referred to his status as co-owner, it cannot be considered adverse to other
co-owner. (See Vidya Devi V. Prem Prakash and Ors., [ 1995] 4 sec 496).

G 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 be 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.
H
T.ANJANAPPAv. SOMALINGAPPA [PASAYAT,J.] 207

"Adverse possession" means a hostile possession which is expressly A
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 B
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 v. B.B. Patil, AIR (1995) SC 895 at C
902.

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 D
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. E
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 F
is something to show that his possessio~ 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 G

- 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 H
208 SUPREME COURT REPORTS [2006) SUPP. 5 S.C.R.

A 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).

Adverse possession is that form of possession or occupancy of land
B which is inconsistent with the title of any person to whom the land rightfully
belongs and tends to extinguish that. person's title, which provides that no
person shall make an entry or distress, or bring an action to recover any land
or rent, but within twelve years next after the time when the right first accrued,
and does away with the doctrine of adverse possession, except in the cases
C provided for by Section 15. Possession is not held to be adverse if it can be
referred to a lawful title.

According to Pollock, "In common speech a man is said to be in
possession of anything of which he has the apparent control or from the use
of which he has the apparent powers of excluding others".
D
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.
E
In Halsbury's 1953 Edition, Volume-I it has been stated as follows:

"At the determination of the statutory period limited to any person
for making an entry or bringing an action, the right or title of such
person to the land, rent or advowso:i, for the recovery of which such
F entry or action might have been made or brought within such period
is extinguished and such title cannot afterwards be reviewed either by
re-entry or by subsequent acknowledgement. The operation of the
statute is mei"ely neg3tive, it extinguished the right and title of the
dispossessed owner and leaves the occupant with a title gained by
the fact of possession and resting on the infirmity of the right of the
G others to eject him."

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
H in denial ohitle of the true owner and in order to constitute adverse possession
T.AN.lANAPPAv. SOMALINGAPPA (PASAYAT.J.) 209

the possession proved must be adequate in continuity, in publicity and in A
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 B
necessary that there should be evidence of the adverse possessor actually
informing the real owner of the former's hostile action.

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 C
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. Therefore,
the appeal which relates to OS 168/85 is allowed by setting aside the impugned D
judgment of the High Court to that extent. Equally, the High Court has
proceeded on the basis that the plaintiff in OS.286/88 had established his plea
of possession. The factual position does not appear to have been analysed
by the High Court in the proper perspective. When the High Court was
upsetting the findings recorded by the court below i.e. first appellate Court E
it would have been proper for the High Court to analyse the factual position
in detail which has not been done. No reason has been indicated to show as
to why it was differing from the factual findings recorded by it. The first
appellate Court had categorically found that the appellants in the present
appeals had proved possession three years prior to filing of the suit. This
finding has not been upset. Therefore, the High Court was not justified in F
setting aside the first appellate Court's order. The appeal before this Court
relating to O.S. 286 of 1988 also deserves to be allowed. Therefore, both the
appeals are allowed but without any order as to costs.

The appeals are disposed of accordingly.
G
K.K. T. Appeals Allowed.