Top News Headlines 8th Jan 2021: Adverse Versus Permissive Possession

Adverse Versus Permissive Possession: Know What The Karnataka HC Has To Say

• 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 entitled 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.

Violation Of Natural Justice A Valid Ground For Setting Aside Arbitral Award: Kerala HC

• The Kerala HC, in the case of V.G.Thankamani and ors vs. National Highway Authority of India and ors. has held that non compliance with the principles of natural justice is a valid ground for setting aside an arbitral award and can be pleaded at any stage.
• The instant appeal was preferred against the order of the Arbitrator. The appellants held lands which were along National Highway 47. 347 metres of their lands were acquired by the District Collector for widening the highway. The appellants claimed a compensation of 8 lakhs per cent. But, the land value that was fixed was only Rs.5,88,100 per acre. On objecting to the same, the matter was referred for arbitration.
• The report that was called for by the arbitrator from the District Level Arbitration Committee recommended that the land value should be increased by 30%. This report was accepted by the Arbitrator and he passed an award enhancing the land value. This was challenged by the appellants in the lower court, but the court dismissed the same. Aggrieved, they filed an appeal before the HC.
• One of the grievances raised by the appellants was that the Arbitrator appointed was the District Collector himself and he was also the Chairman of the Committee from which the report was called for.
• Hence, it was contended by the appellants that the award was in violation of the principles of natural justice and also the public policy of India and was liable to be set aside.
• The Hon’ble HC observed that even though the arbitration proceedings lack state sponsorship, they nevertheless adjudicate on matters which have a direct bearing upon the rights and liabilities of the parties. Therefore, it is vital that these proceedings comply with the principles of fairness and neutrality.
• The Court also held that neutrality and independence of the Adjudicator forms the basis of the adjudicatory system and the same is also in compliance with the principles of natural justice.
• It was also added by the Court that only an arbitrator who is fair, neutral , disinterested and equitable can be said to be an impartial adjudicator. This principle of neutrality is deeply embedded in the Indian jurisprudence and is hence a fundamental policy of Indian law.
• Observing the fact that even though the District Collector may not be personally interested in the outcome of the proceedings, he cannot be said to be neutral and impartial.
• Thus, by virtue of Section 34(2)(b) of the Act, the award in the instant case was liable to be set aside as it was in conflict with the public policy of India.

Marital Rape And The Silenced Voice Of Married Women: Keep Reading To Know More

• Marital rape, an issue which long been disregarded, has never been paid the heed that it truly deserves. The pious nature that has long been attached to marriages in India, coupled with the shame that has been attached to rape, has discouraged women from speaking up on this traumatic occurrence.
• Women who find the courage to report the same are laughed at by the authorities, are said things like ‘katore mai bhar ke consent de di jab saat phere liye’, “you’ll file a case against your own husband?”, “Husband hai to rape kaise hua?”. It is statements like these, made not just by the authorities but society in general that have shielded the ignorance shown by the Legislature when it has not even considered the fact that marital rape is something that is actually happening and it is high time that the same is addressed.
• In a bunch of petitions seeking the criminalisation of marital rape in Inida, one of them being RIT Foundation vs. Union of India, senior advocate Colin Gonsalves has argued that marital rape is the biggest form of sexual violence against women in the matrimonial home, unrecorded and unreported.
• The factual background of the case was also referred to by Gonsalves wherein a 27 year old woman was brutally raped by her husband and sustained very serious injuries in consequence of the assault. He also argued that in cases of marital rapes, no one ever helps the victim, neither the parents nor the authorities.
• Various cases were also cited by Gonsalves in support of his contentions, one of them being the case of R vs. R in which the House of Lords held that a husband can be covicted of rape or attempted rape of his wife, overturning the old Common Law rule which stated that marriage automatically gave consent for sexual intercourse.
• He then referred to the case of C.R. vs. United Kingdom where the European Commission of Human Rights held that a rapist remains a rapist regardless of his relationship with the victim.
• The Supreme Court of Nepal has also held that a marriage does not turn women into slaves. They do not lose human rights just because they are married. To say that a husband cannot rape his wife after marriage is to deny her independent existence, self- respect and her right to live with self determination.
• Vermilion on the forehead or a mangalsutra on the neck should not become a symbol of the loss of all human rights that a woman is born with. The right to one’s own body is the most sacred of all human rights, and it is high time that the Courts and the Legislature of this great country pay heed to the pain that a woman suffers when she has to make sandwiches for her rapist every morning.
• A country and a culture which takes pride in worshiping goddesses will have to do more than just say “husband hai to rape kaise hua?”.

And now, a question for our aspirants.
State the name of the case wherein the Hon’ble SC has increased the age of wife from 15 to 18 years in Exception 2 to Section 375