Adverse Possession

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P.T. Munichikkanna Reddy & Ors vs Revamma And Ors on 24 April, 2007

    CASE NO.:

Appeal (civil) 7062 of 2000

PETITIONER:

P.T. Munichikkanna Reddy & Ors

RESPONDENT:

Revamma and Ors

DATE OF JUDGMENT: 24/04/2007

BENCH:

S.B. Sinha & Markandey Katju

JUDGMENT:

J U D G M E N T

S.B. SINHA, J :

BACKGROUND FACTS

 One Thippaiah was the owner of 5 acre 23 guntas of land having been recorded in
Survey No. 153/1 of Chikkabanavara Village. Nanjapa, adoptive father of
Respondent No. 1 purchased a portion thereof measuring 1 acre 21 guntas on
11.09.1933. By reason of two different sale deeds, dated 11.04.1934 and
5.07.1936, the appellants herein purchased 2 acre 15 guntas and 3 acre 8 guntas
of land respectively, out of the said plot. Despite the fact that Nanjapa
purchased a portion of the said plot, the appellants allegedly took over
possession of the entire 5 acre 23 guntas of land after the aforementioned
purchases. However, when allegedly their possession was sought to be disturbed
by the respondent in the year 1988, they filed a suit in the court of Additional
City Civil Judge, Bangalore which was marked as O.S. No. 287 of 1989. In the
said suit, they clamed title on the basis of adverse possession stating:

"The plaintiffs submit that in any event

the plaintiffs have perfected their title by adverse possession as the
plaintiffs have been in open, continuous uninterrupted and hostile possession of
the plaint schedule land, adversely to the interest of any other person
including the defendant for the past over fifty years exercising absolute rights
of ownership in respect of the plaint schedule land"

 Defendants  Respondents in their written statement denied and disputed the
aforementioned assertion of the plaintiffs and pleaded their own right, title
and interest as also possession in or over the said 1 acre 21 guntas of land.
The learned Trial Judge decreed the suit inter alia holding that the plaintiffs
 appellants have acquired title by adverse possession as they have been in
possession of the lands in question for a period of more than 50 years. On an
appeal having been preferred there against by the respondents before the High
Court, the said judgment of the Trial Court was reversed holding:

(i) "The important averments of adverse

possession are two fold. One is to recognize the title of the person against
whom adverse possession is claimed. Another is to enjoy the property adverse to
the title holder's interest after making him known that such enjoyment is
against his own interest. These two averments are basically absent in this case
both in the pleadings as well as in the evidence"

(ii) "The finding of the Court below that the possession of the plaintiffs'
become adverse to the defendants between 1934-1936 is again an error apparent on
the face of the record. As it is now clarified before me by the learned counsel
for the appellants that the plaintiffs' claim in respect of the other land of
the defendants is based on the subsequent sale deed dated

5.7.1936.

It is settled law that mere possession even if it is true for any number of
years will not cloth the person in enjoyment with the title by

adverse possession. As indicated supra, the important ingredients of adverse
possession should have been satisfied."

SUBMISSIONS

Mr. P. Krishnamoorthy, learned senior counsel appearing on behalf of the
appellants, submitted that the High Court committed a manifest error in arriving
at the aforementioned conclusion as it failed to take into consideration the
principle that acknowledgement of the owner's title was not sine qua non for
claiming title by prescripttion. Reliance in this behalf has been placed on Secy.
of State v. Debendra Lal Khan [AIR 1934 PC 23] and State of West Bengal v. The
Dalhousie Institute Society [AIR 1970 SC 1798].

The learned counsel appearing on behalf of the respondents, on the other hand,
supported the impugned judgment.

CHARACTERIZING ADVERSE POSSESSION

Adverse possession in one sense is based on the theory or presumption that the
owner has abandoned the property to the adverse possessoror on the acquiescence
of the owner to the hostile acts and claims of the person in possession. It
follows that sound qualities of a typical adverse possession lie in it being
open, continuous and hostile. [See Downing v. Bird, 100 So. 2d 57 (Fla. 1958),
Arkansas Commemorative Commission v. City of Little Rock, 227 Ark. 1085, 303
S.W.2d 569 (1957); Monnot v. Murphy, 207 N.Y. 240, 100 N.E. 742 (1913); City of
Rock Springs v. Sturm, 39 Wyo. 494, 273 P. 908, 97 A.L.R. 1 (1929).] Efficacy of
adverse possession law in most jurisdictions depend on strong limitation
statutes by operation of which right to access the court expires through
effluxion of time. As against rights of the paper-owner, in the context of
adverse possession, there evolves a set of competing rights in favour of the
adverse possessor who has, for a long period of time, cared for the land,
developed it, as against the owner of the property who has ignored the property.
Modern statutes of limitation operate, as a rule, not only to cut off one's
right to bring an action for the recovery of property that has been in the
adverse possession of another for a specified time, but also to vest the
possessor with title. The intention of such statutes is not to punish one who
neglects to assert rights, but to protect those who have maintained the
possession of property for the time specified by the statute under claim of
right or color of title. (See American Jurisprudence, Vol. 3, 2d, Page 81). It
is important to keep in mind while studying the American notion of Adverse
Possession, especially in the backdrop of Limitation Statutes, that the
intention to dispossess can not be given a complete go by. Simple application of
Limitation shall not be enough by itself for the success of an adverse
possession claim.

To understand the true nature of adverse possession, Fairweather v St Marylebone
Property Co [1962] 2 WLR 1020, [1962] 2 All ER 288 can be considered where House
of Lords referring to Taylor v. Twinberrow [1930] 2 K.B. 16, termed adverse
possession as a negative and consequential right effected only because somebody
else's positive right to access the court is barred by operation of law: "In my
opinion this principle has been settled law since the date of that decision. It
formed the basis of the later decision of the Divisional Count in Taylor v.
Twinberrow [1930] 2 K.B. 16, in which it was most clearly explained by Scrutton,
L.J. that it was a misunderstanding of the legal effect of 12 years adverse
possession under the

Limitation Acts to treat it as if it gave a title whereas its effect is " merely
negative " and, where the possession had been against a tenant, its only
operation was to bar his right to claim against the man in possession (see loc.
cit. p. 23). I think that this statement needs only one

qualification: a squatter does in the end get a title by his possession and the
indirect operation of the Act and he can convey a fee simple.

If this principle is applied, as it must be, to the Appellant's situation, it
appears that the adverse possession completed in 1932 against the lessee of No.
315 did not transfer to him either the lessee's' term or his rights against or
has obligations to the landlord who held the

reversion. The appellant claims to be entitled to keep the landlord at bay until
the expiration of the term by effluxion of time in 1992: but, if he is, it
cannot be because he is the transferee or holder of the term which was granted
to the lessee. He is in possession by his own right, so far as it is a right:
and it is a right so far as the statutes of limitation which govern the matter
prescribe both when the rights to dispossess him are to be treated as accruing
and when, having accrued, they are thereafter to be treated as barred. In other
words, a squatter has as much protection as but no more protection than the
statutes allow: but he has not the title or estate of the owner or owners whom
he has dispossessed nor has he in any relevant sense an estate

"commensurate with" the estate of the

dispossessed. All that this misleading phrase can mean is that, since his
possession only defeats the rights of those to whom it has been adverse, there
may be rights not prescribed against, such, for instance, as equitable
easements, which axe no less enforceable against him in respect of the land than
they would have been against the

owners he has dispossessed."

Also see Privy Council's decision in Chung Ping Kwan and Others v. Lam Island
Development Company Limited (Hong Kong) [(1997) AC 38] in this regard.

Therefore, to assess a claim of adverse possession, two-pronged enquiry is
required:

1. Application of limitation provision thereby jurisprudentially "willful
neglect" element on part of the owner established. Successful application in
this regard distances the title of the land from the paper-owner.

2. Specific Positive intention to dispossess on the part of the adverse
possessor effectively shifts the title already distanced from the paper owner,
to the adverse possessor. Right thereby accrues in favour of adverse possessor
as intent to dispossess is an express statement of urgency and intention in the
upkeep of the property.

It is interesting to see the development of adverse possession law in the
backdrop of the status of Right to Property in the 21st Century. The aspect of
stronger Property Rights Regime in general, coupled with efficient legal regimes
furthering the Rule of Law argument, has redefined the thresholds in adverse
possession law not just in India but also by the Strasbourg Court. Growth of
Human Rights jurisprudence in recent times has also palpably affected the
developments in this regard. .

NEW CONSIDERATION IN ADVERSE POSSESSION LAW In that context it is relevant to
refer to JA Pye (Oxford) Ltd v. United Kingdom [2005] 49 ERG 90, [2005] ECHR 921
wherein the European Court of Human Rights while referring to the Court of
Appeal judgment ([2001]EWCA Civ 117, [2001]Ch 804) made the following reference:

"Lord Justice Keene took as his starting point that limitation periods were in
principle not incompatible with the Convention and that the process whereby a
person would be barred from enforcing rights by the passage of time was clearly
acknowledged by the Convention (Convention for the Protection of Human Rights
and Fundamental Freedoms). This position obtained, in his view, even though
limitation periods both limited the right of access to the courts and in some
circumstances had the effect of depriving persons of property rights, whether
real or personal, or of damages: there was thus nothing inherently incompatible
as between the 1980 Act and Article 1 of the Protocol."

This brings us to the issue of mental element in adverse possession cases-
intention.

1. Positive Intention

The aspect of positive intention is weakened in this case by the sale deeds
dated 11.04.1934 and 5.07.1936. Intention is a mental element which is proved
and disproved through positive acts. Existence of some events can go a long way
to weaken the presumption of intention to dispossess which might have
painstakingly grown out of long possession which otherwise would have sufficed
in a standard adverse possession case.. The fact of possession is important in
more than one ways: firstly, due compliance on this count attracts limitation
act and it also assists the court to unearth as the intention to dispossess.

At this juncture, it would be in the fitness of circumstances to discuss
intention to dispossess vis-`-vis intention to possess. This distinction can be
marked very distinctively in the present circumstances. Importantly, intention
to possess can not be substituted for intention to dispossess which is essential
to prove adverse possession. The factum of possession in the instant case only
goes on to objectively indicate intention to possess the land. As also has been
noted by the High Court, if the appellant has purchased the land without the
knowledge of earlier sale, then in that case the intention element is not of the
variety and degree which is required for adverse possession to materialize. The
High Court observed:

"It is seen from the pleadings as well in evidence that the plaintiff came to
know about the right of the defendants', only when disturbances were sought to
be made to his possession."

In similar circumstances, in the case of Thakur Kishan Singh (dead) v. Arvind
Kumar [(1994) 6 SCC 591] this court held: "As regards adverse possession, it was
not

disputed even by the trial court that the appellant entered into possession over
the land in dispute under a licence from the respondent for purposes of brick-
kiln. The possession thus initially being permissive, the burden was heavy on
the appellant to establish that it became adverse. A possession of a co-owner or
of a licencee or of an agent or a permissive possession to become adverse must
be established by cogent and convincing evidence to show hostile animus and
possession adverse to the knowledge of real owner. Mere possession for howsoever
length of time does not result in converting the permissible possession into
adverse possession. Apart from it, the Appellate Court has gone into detail and
after considering the evidence on record found it as a fact that the possession
of the appellant was not adverse."

The present case is one of the few ones where even an unusually long undisturbed
possession does not go on to prove the intention of the adverse possessor. This
is a rare circumstance, which Clarke LJ in Lambeth London Borough Council v
Blackburn (2001) 82 P & CR 494, 504 refers to: "I would not for my part think it
appropriate to strain to hold that a trespasser who had established factual
possession of the property for the necessary 12 years did not have the animus

possidendi identified in the cases. I express that view for two reasons. The
first is that the requirement that there be a sufficient manifestation of the
intention provides protection for landowners and the second is that once it is
held that the trespasser has factual possession it will very often be the case
that he can establish the manifested intention. Indeed it is difficult to find a
case in which there has been a clear finding of factual possession in which the
claim to adverse possession has failed for lack of intention."

On intention, The Powell v. Macfarlane (1977) 38 P & CR (Property, Planning &
Compensation Reports) 452  472 is quite illustrative and categorical, holding
in the following terms: "If the law is to attribute possession of land to a
person who can establish no paper title to

possession, he must be shown to have both factual possession and the requisite
intention to possess ('animus possidendi')."

.

If his acts are open to more than one interpretation and he has not made it
perfectly plain to the world at large by his actions or words that he has
intended to exclude the owner as best he can, the courts will treat him as not
having had the requisite animus possidendi and consequently as not having

dispossessed the owner.



In my judgment it is consistent with principle as well as authority that a
person who originally entered another's land as a trespasser, but later seeks to
show that he has dispossessed the owner, should be required to adduce compelling
evidence that he had the requisite animus possidendi in any case where his use
of the land was equivocal, in the sense that it did not necessarily, by itself,
betoken an intention on his part to claim the land as his own and exclude the
true owner.



What is really meant, in my judgment, is that the animus possidendi involves the
intention, in one's own name and on one's own behalf, to exclude the world at
large, including the owner with the paper title if he be not himself the
possessor, so far as is reasonably practicable and so far as the processes of
the law will allow."

Thus, there must be intention to dispossess. And it needs to be open and hostile
enough to bring the same to the knowledge and plaintiff has an opportunity to
object. After all adverse possession right is not a substantive right but a
result of the waiving (willful) or omission (negligent or otherwise) of right to
defend or care for the integrity of property on the part of the paper owner of
the land. Adverse possession statutes, like other statutes of limitation, rest
on a public policy that do not promote litigation and aims at the repose of
conditions that the parties have suffered to remain unquestioned long enough to
indicate their acquiescence.

While dealing with the aspect of intention in the Adverse possession law, it is
important to understand its nuances from varied angles.

Intention implies knowledge on the part of adverse possessor. The case of Saroop
Singh v. Banto and Others [(2005) 8 SCC 330] in that context held:

"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 defendants

possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai
Nayak)

30. Animus possidendi is one of the

ingredients of adverse possession. Unless the person possessing the land has a
requisite animus the period for prescripttion 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 Mohd. Mohd. Ali v. Jagadish Kalita, SCC para 21.)"

  A peaceful, open and continuous possession as engraved in the maxim nec vi,
nec clam, nec precario has been noticed by this Court in Karnataka Board of Wakf
v. Government of India and Others [(2004) 10 SCC 779] in the following terms:

"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"

  It is important to appreciate the question of intention as it would have
appeared to the paper-owner. The issue is that intention of the adverse user
gets communicated to the paper owner of the property. This is where the law
gives importance to hostility and openness as pertinent qualities of manner of
possession. It follows that the possession of the adverse possessor must be
hostile enough to give rise to a reasonable notice and opportunity to the paper
owner.

In Narne Rama Murthy v. Ravula Somasundaram and Others [(2005) 6 SCC 614], this
Court held:

"However, in cases where the question of

limitation is a mixed question of fact and law and the suit does not appear to
be barred by limitation on the face of it, then the facts necessary to prove
limitation must be pleaded, an issue raised and then proved. In this case the
question of limitation is intricately linked with the question whether the
agreement to sell was entered into on behalf of all and whether possession was
on behalf of all. It is also linked with the plea of adverse possession. Once on
facts it has been found that the purchase was on behalf of all and that the
possession was on behalf of all, then, in the absence of any open, hostile and
overt act, there can be no adverse possession and the suit would also not be
barred by limitation. The only hostile act which could be shown was the
advertisement issued in 1989. The suit filed almost immediately thereafter."

The test is, as has been held in the case of R. v. Oxfordshire County Council
and Others, Ex Parte Sunningwell Parish Council [1999] 3 ALL ER 385; [1999] 3
WLR 160:

Bright v. Walker (1834) 1 Cr. M. & R. 211, 219, "openly and in the manner that a
person rightfully entitled would have used it. . ." The presumption arises, as
Fry J. said of prescripttion generally in Dalton v. Angus (1881) 6 App.Cas. 740,
773, from acquiescence.

  The case concerned interpretation of section 22(1) of the Commons Registration
Act 1965. Section 22(1) defined "town or village green" as including

"  land  on which the inhabitants of any

locality have indulged in [lawful] sports and pastimes as of right for not less
than 20 years."

It was observed that the inhabitants' use of the land for sports and pastimes
did not constitute the use "as of right". The belief that they had the right to
do so was found to be lacking. The House held that they did not have to have a
personal belief in their right to use the land. The court observed: "the words
'as of right' import the absence of any of the three characteristics of
compulsion, secrecy or licence 'nec vi, nec clam, nec precario', phraseology
borrowed from the law of easements."

Later in the case of Beresford, R (on the application of) v. City of Sunderland
[2003] 3 WLR 1306, [2004] 1 All ER 160 same test was referred to.

Thus the test of nec vi, nec clam, nec precario i.e., "not by force, nor
stealth, nor the license of the owner" has been an established notion in law
relating to the whole range of similarly situated concepts such as easement,
prescripttion, public dedication, limitation and adverse possession.

In Karnataka Wakf Board (Supra), the law was stated, thus:  "In the eye of law,
an owner would be deemed to be in possession of a property so long as there is
no intrusion. Non-use of the property by the owner even for a long time won't
affect his title. But the position will be altered when another person takes
possession of the property and asserts a right over it. Adverse possession is a
hostile possession by clearly asserting hostile title in denial of the title of
true owner. It is a well- settled principle that a party claiming adverse
possession must prove that his possession is 'nec vi, nec clam, nec precario',
that is, peaceful, open and continuous. The possession must be adequate in
continuity, in publicity and in extent to show that their possession is adverse
to the true owner. It must start with a wrongful disposition of the rightful
owner and be actual, visible, exclusive, hostile and continued over the
statutory period. (See : S M Karim v. Bibi Sakinal AIR 1964 SC 1254, Parsinni v.
Sukhi ( 1993 ) 4 SCC 375 and D N Venkatarayappa v. State of Karnataka (1997) 7
SCC 567.) Physical fact of exclusive possession and the animus possidendi to
hold as owner in exclusion to the actual owner are the most important factors
that are to be accounted in cases of this nature. Plea of adverse possession is
not a pure question of law but a blended one of fact and law. Therefore, a
person who claims adverse possession should show (a) on what date he came into
possession, (b) what was the nature of his possession, (c) whether the factum of
possession was known to the other party, (d) how long his possession has
continued, and (e) his possession was open and undisturbed. A person pleading
adverse possession has no equities in his favour. Since he is trying to defeat
the rights of true owner, it is for him to clearly plead and establish all facts
necessary to establish his adverse possession."

2. Inquiry into the particulars of Adverse Possession Inquiry into the starting
point of adverse possession i.e. dates as to when the paper owner got
dispossessed is an important aspect to be considered. In the instant case the
starting point of adverse possession and Other facts such as the manner in which
the possession operationalized, nature of possession: whether open, continuous,
uninterrupted or hostile possession - have not been disclosed. An observation
has been made in this regard in S.M. Karim v. Mst. Bibi Sakina [AIR 1964 SC
1254]: "Adverse possession must be adequate in

continuity, in publicity and extent and a plea is required at the least to show
when possession becomes adverse so that the starting point of limitation against
the party affected can be found. There is no evidence here when possession
became adverse, if it at all did, and a mere suggestion in the relief clause
that there was an uninterrupted possession for "several 12 years" or that the
plaintiff had acquired "an absolute title" was not enough to raise such a plea.
Long possession is not necessarily adverse possession and the prayer clause is
not a substitute for a plea."

Also mention as to the real owner of the property must be specifically made in
an adverse possession claim.

In Karnataka Wakf Board (Supra), it is stated: "Plaintiff, filing a title suit
should be very clear about the origin of title over the property. He must
specifically plead it. In P Periasami v. P

Periathambi ( 1995 ) 6 SCC 523 this Court ruled that - "Whenever the plea of
adverse possession is projected, inherent in the plea is that someone else was
the owner of the property." The pleas on title and adverse possession are
mutually inconsistent and the latter does not begin to operate until the former
is renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar ( 1996 ) 1 SCC 639
that is similar to the case in hand, this Court held: "As regards the first
plea, it is inconsistent with the second plea. Having come into possession under
the agreement, he must disclaim his right there under and plead and prove
assertion of his

independent hostile adverse possession to the knowledge of the transferor or his
successor in title or interest and that the latter had acquiesced to his illegal
possession during the entire period of 12 years, i.e., up to completing the
period his title by prescripttion nec vi, nec clam, nec precario. Since the
appellant's claim is founded on Section 53-A, it goes without saying that he
admits by implication that he came into possession of land lawfully under the
agreement and continued to remain in

possession till date of the suit. Thereby the plea of adverse possession is not
available to the

appellant.""



3. New Paradigm to Limitation Act

The law in this behalf has undergone a change. In terms of Articles 142 and 144
of the Limitation Act, 1908, the burden of proof was on the plaintiff to show
within 12 years from the date of institution of the suit that he had title and
possession of the land, whereas in terms of Articles 64 and 65 of the Limitation
Act, 1963, the legal position has underwent complete change insofar as the onus
is concerned: once a party proves its title, the onus of proof would be on the
other party to prove claims of title by adverse possession. The ingredients of
adverse possession have succinctly been stated by this Court in S.M. Karim v.
Mst. Bibi Sakina [AIR 1964 SC 1254] in the following terms:

 "Adverse possession must be adequate in

continuity, in publicity and extent and a plea is required at the least to show
when possession becomes adverse so that the starting point of limitation against
the party affected can be found"

[See also M. Durai v. Madhu and Others 2007 (2) SCALE 309]

The aforementioned principle has been reiterated by this Court in Saroop Singh
v. Banto and Others [(2005) 8 SCC 330] stating: "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 defendants

possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai
Nayak)

30. Animus possidendi is one of the

ingredients of adverse possession. Unless the person possessing the land has a
requisite animus the period for prescripttion 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 Mohd. Mohd. Ali v. Jagadish Kalita, SCC para 21.)"

   In Mohammadbhai Kasambhai Sheikh and Others v. Abdulla Kasambhai Sheikh
[(2004) 13 SCC 385], this Court held: "But as has been held in Mahomedally

Tyebally v. Safiabai the heirs of Mohammedans (which the parties before us are)
succeed to the estate in specific shares as tenants-in-common and a suit by an
heir for his/her share was governed, as regards immovable property, by Article
144 of the Limitation Act, 1908. Article 144 of the Limitation Act, 1908 has
been materially re-enacted as Article 65 of the Limitation Act, 1963 and
provides that the suit for possession of immovable property or any interest
therein based on title must be filed within a period of 12 years from the date
when the possession of the defendant becomes adverse to the plaintiff.
Therefore, unless the defendant raises the defence of adverse possession to a
claim for a share by an heir to ancestral property, he cannot also raise an
issue relating to the limitation of the plaintiffs claim"

 The question has been considered at some length recently in T. Anjanappa and
Others v. Somalingappa and Another [(2006) 7 SCC 570], wherein it was opined :

"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 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"

[See also Des Raj and Ors. v. Bhagat Ram (Dead) By LRs. and Ors., 2007 (3) SCALE
371; Govindammal v. R. Perumal Chettiar & Ors., JT 2006 (10) SC 121 : (2006) 11
SCC 600]

CONTENTIONS OF PARTIES

The decision of the Judicial Committee in Debendra Lal Khan (supra), whereupon
reliance has been placed by Mr. Krishnamoorthy, does not militate against the
aforementioned propositions of law. The question which arose for consideration
therein was as to whether the plaintiff had acquired right or title to the
fisheries by adverse possession in the portion of river Cossye. In the
aforementioned situation, it was held that the Limitation Act is indulgent to
the Crown in one respect only, namely, in requiring a much longer period of
adverse possession than in the case of a subject; otherwise there is no
discrimination between the Crown and the subject as regards the requisites of
adverse possession. The said decision is not of much assistance in this case.

In The Dalhousie Institute Society (supra), this Court found as of fact that the
respondents were in open, continuous and uninterrupted possession and enjoyment
of site for over 60 years. It was in that situation, the title of the defendant,
in that behalf, was accepted.

RIGHT TO PROPERTY AS HUMAN RIGHT

There is another aspect of the matter, which cannot be lost sight of. The right
of property is now considered to be not only a constitutional or statutory right
but also a human right.

Declaration of the Rights of Man and of the Citizen, 1789 enunciates right to
property under Article 17 :

      "since the right to property is inviolable and sacred, no-one may be
deprived thereof, unless public necessity, legally ascertained, obviously
requires it and just and prior indemnity has been paid".

  Moreover, Universal Declaration of Human Rights, 1948 under section 17(i) and
17(ii) also recognizes right to property :

"17 (i) Everyone has the right to own property alone as well as in association
with others. (ii) No-one shall be arbitrarily deprived of his property."

Human rights have been historically considered in the realm of individual rights
such as, right to health, right to livelihood, right to shelter and employment
etc. but now human rights are gaining a multifaceted dimension. Right to
property is also considered very much a part of the new dimension. Therefore,
even claim of adverse possession has to be read in that context. The activist
approach of the English Courts is quite visible from the judgement of Beaulane
Properties Ltd. v. Palmer [2005 (3) WLR 554 : 2005 EWHC 817 (Ch.)] and JA Pye
(Oxford) Ltd v. United Kingdom [2005] ECHR 921 [2005] 49 ERG 90, [2005] ECHR
921], The court herein tried to read the Human Rights position in the context of
adverse possession. But what is commendable is that the dimensions of human
rights has widened so much that now property dispute issues are also being
raised within the contours of human rights.

With the expanding jurisprudence of the European Court of Human Rights, the
Court has taken an unkind view to the concept of adverse possession in the
recent judgment of J.A. Pye (Oxford) Ltd v. the United Kingdom [2005] ECHR 921,
which concerned the loss of ownership of land by virtue of adverse possession.

In the instant case the applicant company was the registered owner of a plot of
23 hectares of agricultural land. The owners of a property adjacent to the land,
Mr. and Mrs. Graham ("the Grahams") occupied the land under a grazing agreement.
After a brief exchange of documents in December 1983 a chartered surveyor acting
for the applicants wrote to the Grahams noting that the grazing agreement was
about to expire and requiring them to vacate the land.

In essence, from September 1984 onwards until 1999 the Grahams continued to use
the whole of the disputed land for farming without the permission of the
applicants.

In 1997, Mr Graham moved the Local Land Registry against the applicant on the
ground that he had obtained title by adverse possession. The applicant companies
responded to the motion and importantly also issued further proceedings seeking
possession of the disputed land.

The Grahams challenged the applicant companies' claims under the Limitation Act
1980 ("the 1980 Act") which provides that a person cannot bring an action to
recover any land after the expiration of 12 years of adverse possession by
another. They also relied on the Land Registration Act 1925, which applied at
the relevant time and which provided that, after the expiry of the 12-year
period, the registered proprietor was deemed to hold the land in trust for the
squatter.

It is important to quote here the judgment pronounced in favour of the Grahams
([2000]Ch 676). The court held in favour of the Grahams but went on to observe
the irony in law of adverse possession. According to the court, law which
provides to oust an owner on the basis of inaction of 12 years is "illogical and
disproportionate". The effect of such law would "seem draconian to the owner"
and "a windfall for the squatter". The fact that just because "the owner had
taken no step to evict a squatter for 12 years, the owner should lose 25
hectares of land to the squatter with no compensation whatsoever" would be
disproportionate.

The applicant companies appealed and the Court of Appeal reversed the High Court
decision. The Grahams then appealed to the House of Lords, which, allowed their
appeal and restored the order of the High Court. In J A Pye (Oxford) Ltd & Ors v
Graham & Anor [2002] 3 All ER 865 House of Lords observed that the Grahams had
possession of the land in the ordinary sense of the word, and therefore the
applicant companies had been dispossessed of it within the meaning of the 1980
Act. There was no inconsistency between a squatter being willing to pay the
paper owner if asked and his being in possession in the meantime. It will be
pertinent to note in this regard Lord Bingham (agreeing with Lord Browne-
Wilkinson) in the course of his judgment:

"[The Grahams] sought rights to graze or cut grass on the land after the summer
of 1984, and were quite prepared to pay. When Pye failed to respond they did
what any other farmer in their position would have done: they continued to farm
the land. They were not at fault. But the result of Pye's inaction was that they
enjoyed the full use of the land without payment for 12 years. As if that were
not gain enough, they are then rewarded by obtaining title to this considerable
area of valuable land without any obligation to compensate the former owner in
any way at all. In the case of unregistered land, and in the days before
registration became the norm, such a result could no doubt be justified as
avoiding protracted uncertainty where the title to land lay. But where land is
registered it is difficult to see any justification for a legal rule which
compels such an apparently unjust result, and even harder to see why the party
gaining title should not be required to pay some compensation at least to the
party losing it. It is reassuring to learn that the Land Registration Act 2002
has addressed the risk that a registered owner may lose his title through
inadvertence. But the main provisions of that Act have not yet been brought into
effect, and even if they had it would not assist Pye, whose title had been lost
before the passing of the Act. While I am satisfied that the appeal must be
allowed for the reasons given by my noble and learned friend, this is a
conclusion which I (like the judge [Neuberger J]...) 'arrive at with no
enthusiasm'."

Thereafter the applicants moved the European Commission of Human Rights (ECHR)
alleging that the United Kingdom law on adverse possession, by which they lost
land to a neighbour, operated in violation of Article 1 of Protocol No. 1 to
Convention for the Protection of Human Rights and Fundamental Freedoms ("the
Convention"). It was contended by the applicants that they had been deprived of
their land by the operation of the domestic law on adverse possession which is
in contravention with Article 1 of Protocol No. 1 to Convention for the
Protection of Human Rights and Fundamental Freedoms ("the Convention"), which
reads as under:

"Every natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions except in the public
interest and subject to the conditions provided for by law and by the general
principles of international law.

The preceding provisions shall not, however, in any way impair the right of a
State to enforce such laws as it deems necessary to control the use of property
in accordance with the general interest or to secure the payment of taxes or
other

contributions or penalties."

The European Council of Human Rights importantly laid down three pronged test to
judge the interference of government with the right of "peaceful enjoyment of
property". While referring to Beyeler v. Italy [GC], no. 33202/96, '' 108-14,
ECHR 2000-I, it was held that the "interference" should comply with the
principle of lawfulness pursue a legitimate aim (public interest) by means
reasonably proportionate to the aim sought to be realized.

In fine the court observed:

"The question nevertheless remains whether, even having regard to the lack of
care and inadvertence on the part of the applicants and their advisers, the
deprivation of their title to the registered land and the transfer of beneficial
ownership to those in unauthorised possession struck a fair balance with any
legitimate public interest served.

In these circumstances, the Court concludes that the application of the
provisions of the 1925 and 1980 Acts to deprive the applicant companies of their
title to the registered land imposed on them an individual and excessive burden
and upset the fair balance between the demands of the public interest on the one
hand and the applicants' right to the peaceful enjoyment of their possessions on
the other.

There has therefore been a violation of Article 1 of Protocol No. 1."

The question of the application of Article 41 was referred for the Grand Chamber
Hearing of the ECHR. This case sets the field of Adverse Possession and its
interface with the right to peaceful enjoyment in all its complexity.

 Therefore it will have to be kept in mind the Courts around the world are
taking an unkind view toward statutes of limitation overriding property rights.

THE PRESENT CASE

It is to be borne in mind that the respondent had already purchased 1 acre 21
guntas out of the 5 acres 25 guntas under a duly registered deed dated 1.9.1933.
Appellant bought the entire chunk of 5 acres 23 guntas subsequent to the
respondent's transaction. The validity of such sale is not the question in the
instant case but the transaction relating to 1 acre 23 Guntas remains an
important surrounding circumstance to assess the nature of appellant's
possession. The question is whether it is a case of mistaken possession
ignoramus of the previous sale or adverse possession having the mental element
in the requisite degree to dispossess. Also much depends on the answer to the
query regarding the starting point of adverse possession: when can the
possession be considered to have become adverse? In the facts and circumstances
of this case, the possession of appellant was effected through the sale deeds,
dated 11.04.1934 and 5.07.1936. Therefore, the alleged fact of adverse
possession bears a pronounced backdrop of 1933 sale deed passing 1 acre 21
Guntas to the respondent. . Are we to say that it is a sale with doubtful
antecedents (1 acre 23 Guntas) sought to be perfected or completed through
adverse possession? But that aspect of the matter is not under consideration
herein. As has already been mentioned, adverse possession is a right which comes
into play not just because someone loses his right to reclaim the property out
of continuous and willful neglect but also on account of possessor's positive
intent to dispossess. Therefore it is important to take into account before
stripping somebody of his lawful title, whether there is an adverse possessor
worthy and exhibiting more urgent and genuine desire to dispossess and step into
the shoes of the paper-owner of the property. This test forms the basis of
decision in the instant case.

The argument for a more intrusive inquiry for adverse possession must not be
taken to be against the law of limitations. Limitation statutes as statutes of
repose have utility and convenience as their purpose. Nevertheless, there has
been change on this front as well which have been noticed by us heretobefore.

For the reasons aforementioned, there is no merit in this appeal which is
dismissed accordingly with costs. Counsel's fee assessed at Rs. 25,000/-.