Dhana Chakma v. Sonalaxmi Debbarma And ORS

INTHEHIGHCOURTOFTRIPURA
AGARTALA RSANo.27of2009 ShriDhanaChakma, 


 





 












 



 














.........Appellant -Versus- 1. Smt.SonalaxmiDebbarma,

  



 

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2. Smt.SandhyaRaniDebbarma,

  



 

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3. ShriSachin@SachinDebbarma, 



 

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4. ShriSwapanDebbarma, 



 

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5. ShriSajalDebbarma, 



 

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6. ShriSatyaDebbarma, 


 
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[2] 7. Smt.RupaliDebbarma, '


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8. ShriRasMohanChakma, 


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9. ShriBiralal@BegamChakma, 



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10. ShriBrajaMohanChakma, 


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11. ShriSamirKumarChakma, 


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12. ShriBillamangalSarkar, 


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13. LegalHeirsofRamdhanSarkar, -.
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Smt.GitaSarkar,

  



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........Respondents BEFORE THEHON'BLEMR.JUSTICES.TALAPATRA 0

 


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(i)  Whether the sale deed dated 07.01.2006 (ExhibitEL) executed by Defendant No.1 to 5 to DefendantNo.7withoutdeliveryofpossessionis ashamtransactionasliabletobecancelled. (ii)WhetherthedepositionofD.W.1,D.W.2and D.W.4aretobetakentocorroboratepossession ofsuitlandbytheplaintiff; (iii) Whether due to death of Ramdhan Sarkar, W/S filed by Billamangal Sarkar by swearing affidavitadmittingthepossessionofsuitlandby plaintiff can be taken into evidence of possessionofplaintiffinthesuitland; (iv)WhetherrestorationcaseunderSection187 of TLR and LR Act was with the suit land with Billamangal Sarkar (ExhibitEF, order dated 07E 08E90)orwithoneBhaighyaChakmawithother land;and any other substantial questions of law which would be pertinent for deciding the present appeal. [2] *

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"That, Mangal Ch. Debbarma was the original ownerandpossessorofthesuitlandalongwith other land. Defendant Nos.13 & 14 during life time Mangal Ch. Debbarma left the area due to extremist problem about 22 years ago handing over the land to him. After their departure said MangalCh.Debbarmaexclusivelypossessedthe suit land along with other land within the knowledge of the plaintiff and other people of the locality. Said Mangal Ch. Debbarma grew bananaandplantedtrees(jum)inthesuitland. Khatians also created in his name. Said Mangal Ch. Debbarma died on 14.03.2001, leaving behind defendant Nos.1 to 5 as his legal heirs and after his death the defendant Nos.

1E5 became owner and possessor of the suit land alongwithotherland.DefendantNos.1to5sold the suit land to defendant No.7 after receipt of considerationmoneyvideregistereddeeddated 07.01.2006 and handed over the possession of the suit land to the defendant No.7. The defendantNo.7afterpurchaseandaftergetting possessionofthesuitlandstartedcultivationan planted trees in the suit land within the knowledge of the plaintiff and other people of the locality. The plaintiff never possessed the suitlandinanytimeoratpresentalsoheisnot in possession of the suit land or any part of it. TheplaintiffisthemanofthedefendantNos.13 &14.AsthedefendantNos.13&14wherethus thrown out of the land.

 The unregistered deed whichwereexecutedbydefendantNos.13&14 infavouroftheplaintiffasallegedisnothingbut a paper transaction an inadmissible and it has noforceintheeyeoflaw.Thecunningplaintiff triedtograbthesuitlandillegally.Theboundary ofthesuitlandasmentionedintheplaintisnot correct one. The correct boundary is of the suit land is as are. On the NorthE Sri Raju Kr.





[7] Harendra Debbarma. The alleged unregistered deed executed by defendant Nos.13 and 14 in favourofplaintiffisnothingbutacollusiveand manipulated documents and alleged handing over the possession by the defendant Nos.13 and14infavourofplaintiffisalsoanutterand assuchthesuitisnotmaintainable."  [4] *

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 "(4) Has the plaintiff acquired right, title, interestandpossessioninthesuitlandbyvirtue ofadversepossession? (5) is the sale deed executed by the defendant Nos.1,2,3,4&5infavourthedefendantNos.6& 7legalorillegalliabletobecancelled."  [5]




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DRather aforesaid exhibited khatians show Mangal Debbarma as title holder of the land concerned. ExhibitEL, the purchase deed of defendantNo.7executedbydefendantNos.1to 5 shows that defendant No.7 purchased land measuring 1.82 acres in present dag Nos.1919,1920,1988,1889,1890 and 1896 corresponding to old dag Nos.780 and 777. But instant suit of the plaintiff is regarding land measuring 1.82 acres of the aforesaid present dags.P.W.1 deposedthat hegot possessionof the suit land form Billamangal Sarkar and RamdhanSarkar,i.e.thedefendantNos.13&14 on 15.10.1987 and since then till date he has beenpossessingthesuitlandadverselydenying right,titleandinterestoforiginalownerMangal Debbarma and subsequently of his successors peacefully without any disturbance from





[8] anybodyandwithintheknowledgeofallandhe hasbeenpossessingitadversely.AstheExhibitE 3,theunregistereddeedoftransferhasnolegal value, I am now to scrutinize the oral evidence adducedbythepartiesinsupportofpossession etc. P.W.2 Gopal Bhusan Chakma though submitteddepositionintheformofaffidavitdid not turn up for crossEexamination. P.W.3 Sanat Kumar Chakma deposed that on and from 15.10.1987 the plaintiff the plaintiff has been possessingthesuitlandadverselydenyingright, titleandinterestofMangalDebbarmaandafter hisdeathdenyingtheright,titleandinterestof his successors, i.e., defendant Nos.1 to 5. He deposed that Billamangal and Ramdhan executed the deed of transfer of possession of the suit land.

 Since that transfer deed vide ExhibitE3hasnoevidentiaryvalueIcannotgive weight to that document ExhibitE3. P.W.4 Raj Kumar Debbarma deposed that plaintiff has been possessing the suit land from 15.10.1987 by purchasing the possession from Billamangal and Ramdhan with effect from 15.10.1987 till date adversely and denying right, title and interest of Mangal Debbarma till his death and after death denying right, title and interest of defendant Nos.1 to 5, the successors of Mangal Debbarma.Theplaintiffhasbeenpossessingthe suit land althrough without any interruption by anybody.P.W.5.GunadharChakmaalsodeposed the same thing regarding adversely possessing the suit land by plaintiff. In crossEexamination, P.W.

5deposedthat hedoesnotknowwhowas the previous owner of the suit land. He cannot say whether plaintiff purchased the suit land from Billamangal and Ramdhan on 15.10.1987. Hewasnotpresentatthetimeofhandingover of possession to Dhana Chakma. He cannot say whohandedoverthepossessionofthesuitland toDhanaChakma.P.W.6JaharLalDebdeposed thathewrotetheExhibitE3.Heexplaineditafter writing.Itwasexecutedinhispresence.Dhana Chakma paid Rs.3,100/E to Billamangal Sarkar andRamdhanSarkar.HecannotsayifRamdhan and Billamangal had any title in the scheduled land. They sold the possession only. D.W.1 Rupali Debbarma deposed that she purchased the suit land from defendant Nos.1 to 5 by registered deed dated 07.01.2006.

 She got possession accordingly. In crossEexamination sheadmitsthatsheknowsDhanaChakmaafter institutionofthiscase.Thesuitlandisnearthe houseofDhanaChakma.Itis15/20cubitsaway from the house of Dhana Chakma. Mangal Debbarma died in the year 2000 or 2001. Sons anddaughtersofMangalDebbarmahandedover possessionofthesuitlandtoheron07.01.2006.





[9] present at the time of handing over of possession. So, doubt has arisen regarding handing over of possession of suit land by defendant Nos.1 to 5 to the defendant No.7. In crossEexaminationshealsostatesthatsheknew Billamangal and Ramdhan Sarkar. She does not know whether Ramdhan and Billamangal had been possessing the suit land since 1975. Remarkable thing is that she could not say in whosepresencepossessionwashandedoverto her.D.W.2SachinDebbarma,thesonofMangal Debbarma deposed that his father Mangal Debbarmawastheoriginalownerandpossessor of the suit land. His father died on 14.03.2001. During life time his father possessed the suit land growing banana etc. Defendant Nos.

13 & 14 illegally possessed a part of the suit land during life time of his father. But they left the area due to extremist problem leaving the land before 22 years ago. So from this deposition of D.W.2 it is clear that Billamangal and Ramdhan were in possession of the suit land during life timeofMangalDebbarmaandtheyleftthearea 22 years ago leaving the suit land. But astonishingmatteristhatExhibitE1andExhibitE 2 finally published on 28.09.1989 shows that Ramdhan and Billamangal had been in possession of the suit land illegally. This D.W.2 alsodeposedthatdefendantNo.13waslawfully ousted from the possession of the land but ExhibitELshowsthatBillamangalwasorderedto be ousted by order dated 07.08.

1990 of Collector, Kailashahar, North Tripura from the landofBhagyaChakmaandnotfromthelandof Mangal Debbarma. An upto date finally published Khatian being marked as ExhibitE1 andExhibitE2donotreflectthatBillamangaland Ramdhan were at alloustedfromthe suitland. Aforesaid exhibited khatians do not show that order of Collector dated 07.08.1990 was at all effected. In the deposition D.W.2, the son of MangalDebbarmaalsodeposedthatafterdeath ofhisfatherheandhisbrothersandsistershad beenpossessingthesuitland.ButExhibitE1and ExhibitE2 do not reflect to support this submission of son of Mangal Debbarma, the D.W.2. In crossEexamination D.W.

3 admits that the suit land is adjacent to the house of Dhana Chakma and the house of Mangal Debbarma is 4/5 K.M. away from the suit land. In crossE examinationD.W.2SachinDebbarma,thesonof Mangal Debbarma admitted that Ramdhan and Billamangal remained in his father's land for 10/15yearsillegally.Hecannotsaytheyearof their stay in the suit land. So it is clearly admittedbyD.W.





[10] tenureofMangalDebbarma.Healsoadmitsthat Billamangal was evicted from the land of his fatherbycourseoflaw.Hecannotsaythedate of eviction. But no evidence has been adduced that Ramdhan and Billamangal were at all evicted from the suit land in course of law. So the son of Mangal Debbarma, i.e., D.W.2 admitted in crossEexamination that Ramdhan andBillamangalillegallypossessedthesuitland for 15 years which proves that Billamangal and Ramdhan adversely possessed the suit land beyond statutory period during the tenure of Mangal Debbarma. D.W.3 Rasamoy Chakma deposed that Mangal Debbarma possessed the suit land by growing banana etc.

 The sons and daughters of Mangal Debbarma sold the suit land to Rupali Debbarma in the first part of 2006.D.W.4SamirKumarChakmadeposedthat originalownerMangalDebbarmapossessedthe suitland.Afterhisdeathhissonsanddaughters cameintopossessionofthesuitland." 
 
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[11] "8.ItisanadmittedfactthatMongolDebBarma istheoriginalownerofthesuitland.According totheplaintiff,defendantsNos.13and14were inpossessionofthesuitlanddenyingtheright, title and interest of Mongol Deb Barma and the defendant Nos. 13 and 14 on 15.10.1987 transferred the suit land to the plaintiff and thus, the plaintiff acquired title over the suit landbywayofadversepossession.Ontheother hand, it is the case of the defendants that MongolDebBarmawastheoriginalownerofthe suitlandand he wasin exclusivepossession of the suit land and during his lifetime none possessed the suit land and after his death the defendants Nos.

1 to 5 being the legal heirs of Mongol Deb Barma rightly transferred the suit landtothedefendantNo.7. 9.Ihaveperusedtheevidenceon recordand I find that in the instant case the defendants producedKhatianNos.226/1,266/2,266/3and thesekhatianshavemarkedasExt.C,Ext.Dand Ext. E respectively. From these khatians I find thatthesuitlandhasbeenrecordedinthename of Mongol Deb Barma. From the khatians I further find that the names of Billamangol SarkarandRamdhanSarkarhavebeenshownin column No.

  .Nowhereinthecolumn No.24 of the Khatian it has been stated that Billamongal Sarkar and Ramdhan Sarkar are possessing the suit land. The plaintiff produced the deed, by which Billamongol Sarkar and RamdhanSarkartransferredthesuitlandtohim on15.10.1987andithasbeenmarkedasExt.3. I find that this Ext. 3 is an unregistered document and as such, this document is not admissible in evidence. The defendants further produced the survivorship certificate and it has been marked as Ext.B. From the Ext.B it transpiresthatthedefendantNos.1to5arethe legal heirs of late Mongol Deb Barma. The defendants further produced the sale deed, by which the defendant defendants Nos.

 1 to 5 transferred the suit land to the defendant No.7 andithasbeenmarkedasExt.L.FromExt.Bitis clearlyestablishedthatthedefendantNos.1to 5 are the legal heirs of Mongol Deb Barma and as such, in my considered opinion they have absolute right to transfer the suit land to any person according to their own choice. Thus, I find that as per Ext.L the defendant No.7 acquiredtitleoverthesuitlandonthestrength ofthesaledeed. 10.Ihaveperusedthejudgmentpassedbythe learnedCivilJudge(Sr.





[12] KailashaharandIfindthatthejudgmentpassed by the learned Civil Judge (Sr. Division), North Tripura,Kailashaharisnotwellreasonedandhe hasmisreadtheevidenceonrecordforarriving at his findings. Thus, in my considered opinion thejudgmentpassedbythelearnedCivilJudge (Sr. Division), North Tripura, Kailashahar is liabletobesetaside. 11. The evidence on record does not show that theplaintiffacquiredanytitleoverthesuitland by way of adverse possession, because the plaintiff failed to prove that Billomongol Sarkar and Ramdhan Sarkar adversely possessed the suit land denying the right, title and interest of Mongol Deb Barma.

 In order to prove that Billamongol Sarkar and Ramdhan Sarkar were possessing the suit land denying the title of Mongol Deb Barma, in my view the plaintiff should have examined Billomongol Sarkar and RamdhanSarkarinthiscase.But,recordshows that Billomongol Sarkar and Ramdhan Sarkar werenotexaminedbytheplaintiffinsupportof his case and no explanation has also been put forward by the plaintiff for nonEexamination of Billomongol Sarkar and Ramdhan Sarkar. Thus, the findings of the learned Civil Judge (Sr. Division), North Tripura, Kailashahar that the plaintiff has acquired title over the suit land by wayofadversepossessionisalsonottenablein theeyeoflaw. [7] 
 



 


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[13] IntheKhatianNo.266/1



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'Transferred illegally against Section 187. Possession Billamangal Sarkar, son of Nibaran Sarkar,residentontheplot'. *
 


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'Transferred illegally against Section 187. Possession Billamangal Sarkar, son of Nibaran Sarkar,residentontheplot'.





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Transferred illegally against Section 187. Possession Ramdhan Sarkar, son of Mahim Sarkar,residentontheplot'. *
 


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"187(1)Notransferoflandbyapersonwhois a member of the Scheduled Tribes shall be validunless- (a) the transfer is to another member of the ScheduledTribes;or (b)wherethetransferistoapersonwhoisnot amemberofanysuchtribe,itismadewiththe previous permission of the collector in writing inthemannerprescribed,or 





[16] (c)thetransferisbywayofmortgagetoaCoE operativesocietyortoabankortotheCentral ortheStateGovernment; Provided that the land transferred to a coE operative society or to a bank by way of mortgage in pursuance of clause (c) shall not be transferred by such society or bank to a person who is not a member of the scheduled tribeswithoutthepermissionofthecollectorin writing." [*** the other part is not relevant in the context.] [9]
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"For the purpose of Section 187,187B, 187C and187D,theword'transfer'shallmeansale, mortgage, lease, exchange and gift as defined in Transfer of Property Act, 1882 and include parting with fully or partly of ownership or possession of any land or any interest therein in any other possession of any land or any interest therein in any other manner whatsoever but shall not include the requisition and acquisition of land under any lawforthetimebeinginforce."




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[17] "49. 

   
   
  

 
.-No document requiredbysection171[orbyanyprovisionof the Transfer of Property Act, 1882 (4 of 1882)],toberegisteredshall-" (a)affect any immovable property comprisedtherein,or (b)conferanypowertoadopt, (c)be received as evidence of any transaction affecting such property or conferringsuchpower,  unlessithasbeenregistered: [Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific ReliefAct,1877(3of1877)orasevidenceof any collateral transaction not required to be effectedbyregisteredinstrument." 


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DThe undersigned draft lease agreement Exhibit BE2 was clearly inadmissible in evidence under Section 49 of the Registration Act, except for the collateral purpose of providing the nature and character of possession of the defendants. The document Exh. BE2 was admissible under the proviso to Section 49 only for a collateral purpose of





[18] showing the nature and character of possessionofthedefendants."  [11]

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(i) Whether the plaintiff acquired title on adversepossessionand (ii) whether the sale deed dated 07.01.2006, Exbt.Lisrequiredtobecancelledornot? [12] 
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Gurudwara Sahib vs. Gram Panchayat Village Sirthala and Anr.,  
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[20] "8. There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. Even if the plaintiffisfoundtobeinadversepossession,it cannot seek a declaration to the effect that such adverse possession has matured into ownership.Onlyifproceedingsarefiledagainst the appellant and the appellant is arrayed as defendant that it can use this adverse possessionasashield/defence."

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Gurudwara Sahibvs.GramPanchayatVillageSirthalaandAnr.



 






 

Makhanbala ChakrabortyDeadbyLRs.&Others%
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[14] There cannot be any amount of equivocalitythatwhenthepossessionbecomes adverse if the true owner does not sue the adverse, possessor for recovery of the possession of the immovable property or interest based on title, his right to property extinguishes after 12 years. Similarly, by operationofArticle112suchrightextinguishes after 30 years when the possession becomes adversefortheState.Thisdoctrineofrighton adversepossessionfavoursthesettlersagainst the absentee owner. In one decision being 

    !
     " # $%& '

$ (,theSupremeJudicialCourtreversed the decision of the superior and appeal courts intheU.Kandaffirmedtheancientdoctrine.In   )
 ", it has been held that adversepossessionasadoctrineassumesthat theadversepossessormaybeactingwithhope and even the intent to conceal that he has no validinterestinthepropertybecausehisuseis opentotheWorldtoseeandheappearstobe acting as though he were a true owner, the inner workings of his mind are irrelevant. So long as a man is in possession of the land claiming title, however, wrongly and with whatever degree of knowledge that he has no right, so long the real owner is out of





[21] possession in a constructive as well as an actualsense.*+
    
   
  ,,   )  
-  

-        - . 

 .."  In India we have witnessed the legislative change as regards the continuous possession. InArticle144oftheLimitationAct,1908itwas mere continuous possession for 12 years that used to covert the right of the true owner extinguishedbutinArticle65oftheLimitation Actitisnotmerecontinuouspossessionfor12 years that extinguishes the right of the true ownertorecoverbutitisthecontinuous,open and adverse possession that extinguish the right of the true owner. Mere being in the continuous possession under Article 65 read with Section 27 of the Limitation Act, 1963 would not limit the right of the true owner to recover his immovable property based on the title.

 There cannot be any other interpretation thatiftheadversepossessionisprovedbeyond the period of limitation as stated, the right of thetrueownerovertheimmovablepropertybe extinguished.






[15] Is possession is fact or a right? This questionmustbetakentomean,bypossession andright,whatthelawmeansbythosewords and not something else which Philosophers or Moralistsmaymeanbythem.Forthecourtswe have nothing to do either, except in a legal sense.Ifthesehadalwayssteadilyinmindthe questionwouldhardlyhavebeenasked.Alegal right is nothing but a permission to exercise certain natural powers and upon certain conditions to obtain protection, restitution or compensation by the aid of the public force.

 Justsofarastheaidofthepublicforceisgiven a man, he has a legal right, and this right as the same whether his claim is founded in the righteousness or in equity. Just so far as possessionisprotected,itisasuchasourceof legalrightsasownershipiswhenitsecuresthe sameprotection. Every right is a consequence attached by the lawtooneormorefactswhichthelawdefines, and wherever the law gives anyone special rightsnotsharedbythebodyofthepeople,it does so on the ground that certain special facts,nottrueoftherestoftheWorld,aretrue ofhim.





[22] inawayinwhichitwouldnot,ifallthefactsin questionwerenottrueofhim.Hence,anyword which denote such a group of facts connotes the right attached to it by way of legal consequencesandanywordwhichdenotesthe rightattachedtoagroupoffactsconnotesthe groupoffactsinlikemanner. / )0

1 
-Jr.inhislectureonThe Common Law has pointed out certain features ofpossessions: "The word "possession" denotes such a group of facts. Hence, when we say of a man that he has possession, we affirm directly that all the facts of a certain group are true of him, and we convey indirectly or by implication that the law will give him the advantage of the situation. Contract, or property, or any other substantive notion of the law, may be analyzedinthesame way, andshould be treated in the same order. The only difference is, that,while possession denotes the facts and connotes the consequence, property always, and contract with more uncertainty and oscillation, denote the consequence and connote the facts.

 When we say that a manownsathing,weaffirmdirectlythat he has the benefit of the consequences attached to a certain group of facts, and, by implication, that the facts are true of him.Theimportantthingtograspis,that each of these legal compounds, possession, property, and contract, is to be analyzed into fact and right, antecedent and consequent, in like manner as every other. It is wholly immaterial that one element is accented by one word, and the other by the other two. We are not studying etymology, but law. There are always two things to be asked: first, what are the facts which makeupthegroupinquestion;andthen, what are the consequences attached by the law to that group.

 The former generallyofferstheonlydifficulties. Hence,itisalmosttautologoustosaythat the protection which the law attaches by way of consequence to possession, is as truly a right in a legal sense as those consequences which are attached to adverse holding for the period of prescription."





[23] [16] What / ) 0

 1 
- Jr. has observed in his lecture on The Common Law findsitsreverberationin2

"

3
 )
"

  ,reportedin4 & 5 67"" 8%,whereathreeJudges'Benchofthe apexcourthasobservedasunder: "10.Lastly,theHighCourtthoughtthatas thelandinquestionconsistedofaportion ofthetankoralandappurtenantthereto, adverse possession could not be proved. This view also seems to be wrong. If a person asserts a hostile title even to a tankwhichasclaimedbythemunicipality, belonged to it and despite the hostile assertion of title no steps were taken by the owner, (namely, the municipality in thiscase),toevictthetrespasser,histitle by prescription would be complete after thirtyyears." [Emphasisadded] [17] In 3 9
, the apex court has approvingly extracted the principle laid down in 7' 2 !

 '
 3  79, reported in + &($ 7" 6:$. For reference paraE7 of Balkrishanisextracted: "7.Thelawwithregardtoperfectingtitle by adverse possession is well settled. A person claiming title by adverse possession has to prove three "neck" E necvi,necclamandnecprecario.Inother words, he must show that his possession is adequate in continuity in publicity and in extent. In 7' 2 !
 '
 3  79 speaking for this Court Hidayatullah,J.(ashethenwas)observed thus: "Adverse possession must be adequate in continuity, in publicity andextentandapleaisrequiredat the least to show when possession becomes adverse so that the starting point of limitation against thepartyaffectedcanbefound." [18] In 7.





[24] plaintiff has succeeded in his claim of title basedinadversepossession. "As to what constitutes adverse possession, a subject which formed the topicofsomediscussioninthecase,their Lordships adopt the language of Lord Robertson in delivering the judgment of the 3    ;  ) "

  2  4 54, $8 6 +5-,where his Lordship said that =  ,



  
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)
 ,' The classical requirement is that the possessionshouldbe)  ,. Mr. Dunne for the Crown appeared to desiderate that the adverse possessionshouldbeshowntohavebeen brought to the knowledge of the Crown, butintheirLordships'opinionthereisno authority for this requirement. It is sufficientthatthepossessionbeovertand without any attempt at concealment, so that the person against whom time is running ought, if he exercises due vigilance, to be aware of what is happening.IftherightsoftheCrownhave beenopenlyusurpeditcannotbeheardto pleadthatthefactwasnotbroughttoits notice.

 The Limitation Act is indulgent to the Crown in one respect only, namely in requiringamuchlongerperiodofadverse possession than in the case of a subject; otherwisethereisnodiscriminationinthe statute between the Crown and the subject as regards the requisites of adversepossession.Itmaybeaddedthat it is not necessary in order to establish adverse possession that the proof of acts ofpossessionshouldcovereverymoment of the requisite period.

 Though the possession, " be not proven to have continued every quarter, month or year, yet ordinary possession will be sufficient ad victeeiam causre,albeititbeproponedintheterms of a continual possession,  , 
 >
 ,
 media, if the distance be not great" : 7?
 +

    7 -$-$8 68. " The fact of possession may be continuous though the several acts of possession are at considerable intervals.





[25] How many acts will infer the fact is a question of proof and presumption independent of prescription : '

  <
,-,%(." The Privy Council after distinguishing the natureofpossessionhasheldthattheCrown's right was extinguished creating title of the plaintiffonadversepossession. [19] In<9
.!
9
 ., reported in + &:

 7" % $, it has beenheldbytheapexcourtthatthestatuteof limitationdoesnotattachtotheclaim,thereis as yet no right of action and does not run against a right for which there is no corresponding remedy or for which judgment cannotbeobtained.Consequentlythetruetest to determine when a cause of action has accrued, is to ascertain the time when the plaintiff could first have maintained his action toasuccessfulresult.Itdefinitelyimpliesthat iftheadversepossessionexpirestheperiodof limitation,aplaintiffcanbringanactionbased onsuchextinguishmenttoasserthisrightand inthateventhemightsucceedinthesuit. [20] In  @,,  /
 )
7 ,,.reportedin4688(5  7"":

8,thisaspectagainfellforconsideration oftheapexcourtandithasbeenobservedas under: * &InHalsbury'sLawsofEngland,1953 Edition, VolumeEI it has been stated as follows: At the determination of the statutory period limited to any person for making an entry or bringinganaction,therightortitle of such person to the land, rent or advowson,fortherecoveryofwhich such entry or action might have been made or brought within such periodisextinguishedandsuchtitle cannot afterwards be reviewed eitherbyreEentryorbysubsequent acknowledgement.Theoperationof the statute is merely negative, 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 otherstoejecthim. 





[26] 20.Itiswellrecognizedproposition in law that mere possession however long does not necessarily meansthatitisadversetothetrue owner. Adverse possession really meansthehostilepossessionwhich isexpresslyorimpliedlyindenialof titleofthetrueownerandinorder to constitute adverse possession the possession proved must be adequate in continuity, in publicity andinextentsoastoshowthatitis adverse to the true owner. The classical requirements of acquisition of title by adverse possessionarethatsuchpossession in denial of the true owner's title must be peaceful, open and continuous.

Thepossessionmustbe open and hostile enough to be capable of being known by the parties interested in the property, thoughitisnotnecessarythatthere should be evidence of the adverse possessor actually informing the real owner of the former's hostile action." [Emphasisadded] [21] In ;
 @  /
 )
3   4;5 3. 
  /
, reported in 4688 5 & 7""($ ,atwoJudges'Benchoftheapexcourt has held in contrast to what has been held in A 7  asunder: 19. Only because the parties did not use the terminology which they should have, ipso facto, would not mean that the ingredients for satisfying the requirementsofstatuteareabsent.

There cannot be any doubt whatsoever that having regard to the changes brought about by Articles64and 65 of the Limitation Act, 1963 visEaEvis Articles142and144oftheLimitationAct, 1908, the onus to prove adverse possession would be on the person who raises such a plea. It is also furthermore notindisputethatthepossessionofacoE sharer is presumed to be possession of the other coE sharers unless contrary is proved. 20.Apleaofadversepossessionoraplea ofousterwouldindisputably be governed byArticles64and65oftheLimitationAct.





[27] 21. In a case of this nature, where long andcontinuouspossessionoftheplaintiffE respondent stands admitted, the only questionwhicharoseforconsiderationby the courts below was as to whether the plaintiff had been in possession of the propertiesinhostiledeclarationofhistitle visEaEvis his coEowners and they were in knowthereof. 22.Mereassertionoftitlebyitselfmaynot be sufficient unless the plaintiff proves animus possidendi. But the intention on the part of the plaintiff to possess the properties in suit exclusively and not for and on behalf of other coEowners also is evidentfromthefactthatthedefendants E appellants themselves had earlier filed two suits. Such suits were filed for partition.

 In those suits the defendants E appellants claimed themselves to be coE owners of the plaintiff. A bare perusal of thejudgmentsofthecourtsbelowclearly demonstrates that the plaintiff had even therein asserted hostile title claiming ownershipinhimself.Theclaimofhostile title by the plaintiff over the suit land, therefore, was, thus, known to the appellants. They allowed the first suit to be dismissed in the year 1977. Another suit was filed in the year 1978 which again was dismissed in the year 1984. It may be true, as has been contended on behalfoftheappellantsbeforethecourts below, that a coEowner can bring about successivesuitsforpartitionasthecause of action therefore would be continuous one.

 But, it is equally wellEsettled that pendency of a suit does not stop running of 'limitation'. The very fact that the defendants despite the purported entry madeintherevenuesettlementrecordof rights in the year 1953 allowed the plaintiffs to possess the same exclusively andhadnotsucceededintheirattemptto possess the properties in Village Samleu and/or otherwise enjoy the usufruct thereof,clearlygotoshowthatevenprior toinstitutionofthesaidsuittheplaintiffE respondenthasbeeninhostilepossession thereof. 23. Express denial of title was made by theplaintiffErespondentinthesaidsuitin his written statements.





[28] determine the issue as to whether the plaintiffE respondent had successfully ousted the defendants E appellants so as to claim title himself by ouster of his coE owners.  24. In any event the plaintiff made his hostile declaration claiming title for the property atleast in his written statement inthesuitfiledintheyear1968.Thus,at least from 1968 onwards, the plaintiff continued to exclusively possess the suit land with knowledge of the defendants E appellants. 25.Thepartieswenttotrialfullyknowing their respective cases. The fact that they hadbeencoEownerswasnotanissue.The parties proceeded to adduce evidences in support of their respective cases.

 Defendants EAppellants, keeping in view of the fact that they have unsuccessfully beenfilingsuitforpartition,werealsonot prejudiced by reason of purported wrong framing of issue. They knew that their pleaforjointpossessionhadbeendenied. They were, therefore, not misled. They were not prevented from adducing evidenceinsupportoftheirplea. 26. Article65of the Limitation Act, 1963, therefore, would in a case of this nature haveitsroletoplay,ifnotfrom1953,but at least from 1968. If that be so, the finding of the High Court that the respondent perfected his title by adverse possession and ouster cannot be said to bevitiatedinlaw. 27. Mr.

 Das has relied upon a decision of this Court in7, 7 )3# 4688:5 7""%%8,inwhichoneofuswas amember.Thereisnodisputeinregardto the proposition of law laid down therein that it was for the plaintiff to prove acquisitionoftitlebyadversepossession. 28.

 # 4688(5 7""(88whereinitwasheld: ...In order to oust by way of adversepossession,onehastolead definite evidence to show that to thehostileinterestofthepartythat a person is holding possession and





[29] howthatcanbeprovedwilldepend onfactsofeachcase.... 29. Yet again in @,,  /
)7 ,,,itwasheld: '12. The concept of adverse possession contemplates a hostile possession i.e. a possession which isexpresslyorimpliedlyindenialof 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 must show by clearandunequivocalevidencethat his possession was hostile to the real owner and amounted to denial of his title to the property claimed.

 For deciding whether the alleged actsofapersonconstitutedadverse possession, the animus of the persondoingthoseactsisthemost crucialfactor.Adversepossessionis 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 denialoftheowner'srightexcluded him from the enjoyment of his property.' 30.Inthiscase,however,afindingoffact hasbeenarrivedatbyallthethreecourts. They have analysed the evidences on record. They have taken into consideration the correct legal position operating in the field as also conduct of the parties. They, in our opinion, applied the correct principles of law as regards 'burdenofproof.' 31.

We,havingregardtothepeculiarfact obtaining in the case, are of the opinion that the plaintiffE respondent had established that he acquired title by ousting the defendants E appellants by declaringhostiletitleinhimselfwhichwas totheknowledgeofhiscoEsharers. 32.We,therefore,findnoinfirmityinthe impugned judgment. The appeal is dismissed.





[30] of the case, there shall, however, be no orderastocosts." [Emphasisadded] [22] What has distinctly appeared is that in 3 9
, a two Judges' Bench of the apex court has held that the plaintiff had acquired rightsofbhumiswami(theowner)onthebasis oftheadversepossessionofthesuitland.  In2

"

3
,athreeJudgesofthe apex court has held that if a person asserts a hostiletitleeventoatankwhich,asclaimedby themunicipality,belongedtoitanddespitethe hostileassertionoftitlenostepsweretakenby the owner to evict the trespasser, his title by prescription would be complete after thirty years. In;
@/
,atwoJudgesBenchofthe apexcourtagainheldthathavingregardtothe peculiarfactobtainingthecase,theapexcourt wasoftheopinionthattheplaintiffErespondent had established that he acquired title by oustingthedefendantsEappellantsbydeclaring hostile title in himself which was to the knowledgeofthecoEsharers.Such,declaration of title on adverse possession has got the approvaloftheapexcourtinthatcase.

 None of those precedents are considered in A  7   for holding that even if the plaintiff is found to be adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership.

 3
- ;
 @  /
 in one side and A  7   on the other, has taken the centre stage in the controversy in this appeal. Even though the maintainabilityofadeclaratorysuitfortitleon adverse possession at the instance of the plaintiff has not been expressly considered by theapexcourtexceptinA 7  ,but whentheapexcourtobservesthatnoinfirmity isfoundinthedecreedeclaringtitleonadverse possessionoftheplaintiffitistobeinvariably inferredthatitapprovessuchdeclaration. [23] In 3 9
- the apex court has declared that the plaintiff had acquired the rights of the owner on the basis of adverse possessionoverthesuitland.Evenin2

 "

 3
, the law has been positively stated that "title by prescription would be completeafter30years."InDesRajandOrs., the title has been affirmed on adverse





[31] possession in favour of the 'the plaintiffE respondent'. Adverse possession can never be usedastheswordbutastheshieldisnodoubt amoralconventionbutitwasnevertestedon the touchstone of law. What / ) 0

 1 
- Jr. has observed is of considerable significancethatitisalmosttautologoustosay that the protection which the law attaches by wayofconsequencetopossessionisastrulyas arightinalegalsenseasthoseconsequences which are attached to the adverse holding for the period of prescription. Section 27 of the Limitation Act categorically provides that if within aperiodprescribedbylawoflimitation anypersonfailstoinstitutesuitforrecoveryof possession of any property 'his right to such property shall be extinguished'. Such possessionknownastheadversepossessionis not a mere fact, it creates a definite right in favourofthesquatteronextinguishmentofthe right of the true owner.

 When the law recognises that right the said right has to be consideredastherightattachedtoitbywayof legalconsequences.Whetherapersonwhohad acquired such right should wait for infinite periodstobesuedbyapersonwhoseinterest in the property has been extinguished or the rightasmaturedbywayofadversepossession should be acknowledged as has been acknowledged in respect of registering a conveyance executed by a squatter, inasmuch as the Registrar does not have the right to question the title of the transferor cannot be heldtobeleftinthelurchforstairsdecisionas referred. This aspect may require further dilation.

 3
,thisCourtwouldgobythedecisionofthe larger Bench that 'the title by prescription would be complete' after the expiry of the period of limitation from the day when the possession becomes adverse. If the title by prescription becomes complete after expiry of theperiodoflimitationthereisnoembargofor thecivilcourttodeclaresuchright.Apartthat itwouldburytheuncertaintyastothetitleand nipthecomplexdisputesatthebud. [24] Equityandrighteousnessarethecore of the justice. If any law stands contrary to those principles it is only expected that the legislature would bring about the necessary change in the law, if they are of the opinion that such change is required in the changed circumstances. The apex court  1@0 @  )
 9 

 

 1@ /
- reported in





[32]  + 7"0 (&&( has been persuaded to observedthat: "34...... the law of adverse possession whichoustsanowneronbasisofinaction withinlimitationisirrational,illogicaland wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest personwhohadillegallytakenpossession ofthepropertyofthetrueowner.Thelaw ought not to benefit a person who in a clandestine manner takes possession of thepropertyoftheownerincontravention oflaw.Thisinsubstancewouldmeanthat the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner. 35.

 We fail to comprehend why the law should place premium on dishonesty by legitimizing possession of a rank trespasser and compelling the owner to loose its possession only because of his inaction in taking back the possession withinlimitation. 36. In our considered view, there is an urgent need of fresh look regarding the law on adverse possession. We recommendtheUnionofIndiatoseriously considerandmakesuitablechangesinthe law of adverse possession. A copy of this judgment be sent to the Secretary, Ministry of Law and Justice, Department of Legal Affairs, Government of India for taking appropriate steps in accordance withlaw."


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