- The Karnataka HC, in Chepudira Madaiah vs. Mallengada Chengappa has held that a person will not acquire adverse possession merely because he has simply remained in permissive possession for a long time. For the limitation period under section 65 of Limitation Act to run, what has to be kept in mind is not the date from which the defendant is in possession of the property, but when the possession of the defendant becomes adverse to the plaintiff.
- Explaining permissive possession and when it becomes adverse possession, the Court said that mere possession cannot be deemed to be adverse possession on the denial of another’s title because that would violate the rights of the true owner. It is only when the defendant’s possession becomes adverse to that of the legal owner does adverse possession arise. Until then, the defendant’s continue in permissive possession of the property.
- In the instant case, late Muthana (father of the appellant Madaiah) had filed a suit before the trial court in the year 1983 for possession of 35 cents and 10 cents of the encroached land from late Bopaiah. This suit was decreed in 1989 in favour of Muthana and he was allowed the possession of the land.
- This decision was challenged by Bopaiah. Upon a survey which was conducted by a Commissioner appointed at the instance of Bopaiah, it was found that Bopaiah had encroached upon 20 cents and 10 cents of land in the respective properties and Muthana had encroached upon 2.25 acres and 50 cents of land in the respective properties. The Court, seeing that both the parties were guilty of encroachment, allowed the appeal that was filed by Bopaiah.
- On the death of both Muthana and Bopaiah, their legal heroes became parties to the suit. Legal heirs of Muthanna filed a regular second appeal, which was allowed, but the Court also said that the defendants were entitiled to file a suit for the eviction of the plaintiffs from the suit properties and recover the possession of the same. Pursuant to this, a suit was filed by Bopaiah’s heirs to recover the land encroached.
- The appellant (son of Muthanna) had in the instant appeal, challenged the decision of the Civil Court which had stated that they had encroached upon the land of Bopaiah’s heirs.
- On the question of adverse possession, the Hon’ble HC has held that it was only after the demand of vacating the property by the plaintiff was made and the defendants refused to do the same, but claimed their title by way of adverse possession over the property did the plaintiffs got a cause of action to sue the defendants. Thus the suit filed by the plaintiffs in the trial court cannot be said to be barred by limitation.
- The Court further held that Animus Possidendi is one of the ingredients to adverse possession and unless the person in possession has the hostile animus, the period of limitation does not commence.
- The Court has relied on the decision of the Hon’ble Apex Court in the case of Dagadabhai vs. Abbas @ Gulab Rustum Pinjari (2017)SCC in which it was held that the person raising the plea of adverse possession must first admit the ownership of the true owner of the property to the knowledge of that owner.
- Thus, the Court agreed with the decision of the trial Court directing the defendant to hand over the possession of the property to the plaintiff.
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