How to prove plea of adverse possession if date of commencement of adverse possession is not available?
The Supreme Court in the case of T. Anjanappa (supra) clearly elucidates this principle of law in the following words :-
"15. An occupation of reality is inconsistent with the right of the true owner. Where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner (that is, with the intention of excluding all persons from it, including the rightful owner), he is in adverse possession of it. Thus, if A is in possession of a field of B's, he is in adverse possession of it unless there is something to show that his possession is consistent with a recognition of B's title. (See Ward v. Carttar (1865) LR 1 Eq.29)). Adverse possession is of two kinds, according as it was adverse from the beginning, or has become so subsequently. Thus, if a mere trespasser takes possession of A's property, and retains it against him, his possession is adverse ab initio. But if A grants a lease of land to B, or B obtains possession of the land as A's bailiff, or guardian, or trustee, his possession can only become adverse by some change in his position. Adverse possession not only entitles the adverse possessor, like every other possessor, to be protected in his possession against all who cannot show a better title, but also, if the adverse possessor remains in possession for a certain period of time produces the effect either of barring the right of the true owner, and thus converting the possessor into the owner, or of depriving the true owner of his right of action to recover his property and this although the true owner is ignorant of the adverse possessor being in occupation. (See Rains v. Buxton (1880 (14) Ch D 537))."
10. In the present case, the possession of Defendant No. 1 of the suit land cannot be said to be consistent with recognition of the title of the Plaintiffs or their predecessor Rama. Both courts have come to the conclusion that Defendant No. 1 was in uninterrupted possession of the suit land since the year 1952 and till the date of filing of the suit in 1978. It is nobody's case that this possession was a permissive possession in the sense that it had the permission of the true owner of the suit land, namely, Rama, and his successors, the Plaintiffs herein. Defendant No. 1 was cultivating the suit land, taking crops year after year from the suit land, his cultivating possession being clearly evidenced by the entries in the record of rights from the year 1952 till the year 1978 and even thereafter, showing Defendant No. 1 as the person in possession and cultivation of the suit land. There being no case of a permissive possession on the part of Defendant No. 1 since the year 1952, this possession must be treated as adverse to the Plaintiffs and their predecessor Rama.
11. Now the next question is whether this adverse possession was open and sufficient in publicity so as to mature into adverse possession, defeating the true owner's right to the property. Even here, the first Appellate Court was in clear error in proceeding on the footing that there was no notice of his adverse possession by Defendant No. 1 to the Plaintiffs or their predecessor Rama. The law does not require any specific notice or, for that matter, any proof that there was specific knowledge on the part of the true owner of the adverse possessor's possession or assertion of title. What is important is whether the possession was so open and sufficient in publicity as to impute knowledge on the part of the true owner. It should be open and not concealed. It should be effective so as to impute knowledge on the part of the true owner. It is not for the adverse possessor to establish specific knowledge of the true owner in all cases of adverse possession.
IN THE HIGH COURT OF BOMBAY
Second Appeal No. 62 of 1995
Decided On: 07.03.2017
Maruti Dagadu Charwad Vs. Bhau Nama Gujar
Hon'ble Judges/Coram:
S.C. Gupte, J.
Citation: 2017(5) Bom CR126
