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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2238 OF 2016

BANGALORE DEVELOPMENT AUTHORITY .....APPELLANT(S)

VERSUS

N. JAYAMMA .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

The instant appeal, which has travelled to this Court, had its

origin in a suit filed by the respondent in the Court of City Civil

Judge,  Bangalore.   The  said  suit  was  filed  by  the  respondent

herein for declaration of title to the suit property situated in Sy. No.

76/1.  It was claimed by the respondent that she had purchased

the property on June 22, 1994 ad-measuring East to West – 60 ft.

and North to South – 50 ft.  (hereinafter referred to as the 'suit

property') from its previous owner and had constructed a building

thereupon.  The aforesaid suit property, which was part of Sy. No.

76/1 comprising 4 acres 31 guntas (hereinafter referred to as the

'scheduled property'), was acquired by the State Government for

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Bangalore  Development  Authority  – appellant  herein (for  short,

'the  BDA'),  for  which  Notification  under  Section  4  of  the  Land

Acquisition  Act,  1894  (for  short,  'the  Act')  was  issued  on

December 15, 1984 followed by a declaration under Section 6 of

the Act  on October  29,  1986.   Purportedly, possession thereof

was handed over to the BDA on August 30, 1988 vide  Mahazar

(Exhibit D-4).  However, it appears that the actual possession of

the suit property remained with the original owner who then sold it

to the respondent in the year 1994, as stated above.  It is on this

basis that the respondent filed the suit on the ground that she was

in possession of the said property for more than 12 years even

after the acquisition thereof by the State Government and, in this

manner, she had perfected her title by adverse possession.  Thus,

the  relief  claimed  in  the  suit  was  for  declaration  that  the

respondent had become the owner thereof.

2) The appellant contested the said suit by raising the plea that since

the scheduled property had been acquired by the Government for

formation  of  the  layout  and  with  effect  from  the  date  of  final

notification  entire  land  vested  with  the  Government,  the

respondent was precluded from claiming the possession thereof

on the ground that it was already with her.  It was also contended

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that the Government had handed over the possession of the land

in question to the BDA on August 30, 1988 and BDA was in legal

possession thereof.  It was also submitted that once Notification

under Section 4 of the Act was issued on December 15, 1984 and

even  declaration  under  Section  6  was  issued  on  October  29,

1986,  it  was  not  permissible  for  the  original  owner  to  sell  the

acquired land to the respondent herein on June 22, 1994.  It was

also contended that as the land vested with the Government, in

any case,  the limitation under Article 112 of  the Limitation Act,

1963  was  30  years  and  not  12  years  and,  therefore,  the

respondent could not claim adverse possession before the expiry

of 30 years.

3) The trial court, on the basis of the pleadings, framed the following

issues:

“(1)  Whether the plaintiff proves that she and her predecessors  in  title  have  been  in  continuous possession  and  enjoyment  of  the  suit  schedule property since more than 12 years, adverse to the interest of the defendant as pleaded in the plaint?

(2)   Whether  the  plaintiff  proves  that  she  had perfected her title to the suit schedule property by way  of  adverse  possession  as  pleaded  in  the plaint?

(3)  Whether the plaintiff proves that the defendant and his officials are unlawfully interfering with her possession of the suit schedule property as alleged in the plaint?

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(4)  Whether the plaintiff proves that she is entitled for  the  declaration  of  title  to  the  suit  schedule property as sought for in the suit?

(5)   Whether the plaintiff  proves that  she is  also entitled  for  the  grant  of  permanent  injunction against the defendant as ought for in the suit?”

4) Evidence  was  led  and  arguments  heard,  which  resulted  in

passing  of  judgment  and  decree  dated  April  07,  2006  by  the

Additional  City  Civil  Judge,  Bangalore.   All  the  issues  were

decided in favour of the respondent herein, on the basis of which

suit was decreed in her favour declaring that she is the owner in

possession of the suit property having perfected her title by way

of adverse possession.  As a consequence, decree of permanent

injunction was also passed restraining the appellant – BDA, its

officials and agents, etc. from alienating the suit property either by

way of lease, public auction or by allotting the same in favour of

any third party or from interfering with the peaceful possession

and  enjoyment  of  the  said  property  by  the  respondent.   This

judgment  and  decree  was  appealed  against  by  the  appellant

before the High Court by filing Regular First Appeal No. 1279 of

2006.  The High Court has, vide impugned judgment, affirmed the

decree passed by the trial court thereby dismissing the appeal of

the appellant.

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5) Attacking the judgment and decree passed by the trial court and

affirmed  by  the  High  Court,  learned  counsel  for  the  appellant

submitted  that  even  if  it  is  presumed that  limitation  period  for

claiming adverse possession is 12 years, in the instant case, that

ingredient has not been satisfied by the respondent even on the

basis of admitted facts.  In this behalf, it was argued that as per

the respondent's own showing, she had purchased the area of 60

ft. x 50 ft. out of the acquired land on June 22, 1994.  She, thus,

came into possession in the year 1994.  He further pointed out

that in the plaint itself, the respondent had averred that there was

some existing construction and she had applied for regularisation

of the said existing construction on July 25, 1994.  Further, in para

10 of the plaint, the respondent admitted that the officials of the

appellant had come to the suit, properly accompanied by Police

force,  and demolished the existing  construction.   He drew our

attention to the following averments in the plaint to the aforesaid

effect:

“In spite of the above stated facts, the BDA and its officials without any kind of notice and with the help of a large contingent of police force accompanied by  the  officials  and  workmen  including  the Commissioner, BDA and all of a sudden they have illegally trespassed over the suit schedule property on 24.04.2001 and interfered over the same and demolished the  existing  construction  buildings as well as her business therein on 24.04.2001 with the aid  of  bulldozers  and  such  other  machinery,

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equipments....”

6) It was, thus, argued that after purchase of the land on June 22,

1994, the respondent remained in possession for barely 7 years

when she was dispossessed, even as per the respondent's own

showing and the suit filed on August 06, 2001 claiming adverse

possession  on  the  ground  that  she  was  in  possession  for  12

years, was incompetent.  It was further submitted that as per the

aforesaid pleadings in the plaint, it was clear that on the date of

filing the suit, the respondent was not in possession nor was there

any  structure  on  the  suit  land  and  the  question  of  claiming

adverse possession, thus, did not arise.

7) Learned  counsel  also  argued  that  in  order  to  lay  claim  of

ownership on the basis of adverse possession, it has to be proved

that such adverse possession is open and uninterrupted to the

enjoyment  of  the  defendant-Authority  for  more  than  12  years,

which  essential  requirement  had  not  been  satisfied.   For  this

proposition,  the learned counsel  placed heavy reliance upon a

recent  judgment  of  this  Court  in  M.  Venkatesh  &  Ors.  v.

Commissioner, Bangalore Development Authority.1

1 (2015) 10 Scale 27

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8) We may note at this stage that in arriving at a finding that the

respondent was in possession of suit property for more than 12

years, the courts below have calculated the period from August

30, 1988, namely, the date on which possession was taken under

a  Mahazar  (Exhibit  D-4) by the State Government and handed

over to the BDA.  Learned counsel for the BDA pleaded that the

aforesaid approach of the courts below was wholly erroneous as

the respondent, as per her own showing, came to possess the

suit property only after the purchase thereof on June 22, 1994.

He  also  submitted  that,  in  any  case,  sale  in  favour  of  the

respondent in the year 1994 was void  ab initio  as the title had

already been vested in the BDA and the original owner who had

purportedly sold the property  to  the respondent  was no longer

owner thereof and had no right to sell the same.  Learned counsel

argued that even this aspect is squarely covered by the aforesaid

judgment in the case of M. Venkatesh (supra).  Learned counsel

also pointed out that  after  the structure was demolished in the

year 2001 by the BDA, as admitted by the respondent herself, the

site in  question was auctioned by the appellant  on August  06,

2001 and sale deed was duly executed, which was proved before

the trial court as Exhibit P-26.

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9) Per contra, learned counsel for the respondent submitted that the

respondent had led sufficient evidence to establish that she had

been  in  continuous  possession,  which  remained  uninterrupted,

and on the basis of this evidence a categorical finding was arrived

at by the trial court to the effect that the respondent has perfected

her  title  in  respect  of  the  suit  property  by  way  of  adverse

possession.   This  submission  was  elaborated  by  arguing  that

even  when  the  schedule  property  was  acquired  by  issuing

requisite notifications and passing of the award, possession of the

suit property was never taken by the BDA, which continued to be

in  possession  of  the  vendor,  from  whom  the  respondent

purchased the property vide sale deed dated June 22, 1994, and

thereafter she had been in possession of this property.  It  was

submitted that these were findings of facts arrived at on the basis

of  evidence  produced  on  record  which  do  not  warrant  any

interference.  It  was also submitted that  Mahazar  (Exhibit  D-4)

dated October  13,  1988 was only  a paper  possession and no

actual possession had been taken, which also stood proved not

only by the evidence led by the respondent, but even from the

statements of DW-1 and DW-2, who were examined on behalf of

the BDA.  Learned counsel further pointed out that there was not

even an iota of evidence adduced on behalf of the BDA that the

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possession of the suit property was taken on the date of Mahazar

(Exhibit D-4) or subsequently thereafter.

10) Insofar  as  claim  of  continuous,  uninterrupted  and  peaceful

possession for a period of more than 12 years is concerned, it

was the submission of the learned counsel for the respondent that

possession of the respondent shall not be counted from the date

of the sale deed, i.e. June 22, 1994, in her favour, but the earlier

period during which the vendor was in possession also needs to

be  counted  and  the  courts  below were  right  in  computing  the

period of 12 years from the date of  Mahazar  (Exhibit D-4) dated

October 13, 1988.  A fervent plea was made that if the impugned

judgment is  reversed, the respondent and the members of  her

family will be deprived of their only shelter, which would amount to

taking  away  their  right  to  property  guaranteed  to  them  under

Article 300A of the Constitution of India.  It is stated that there was

a fully developed structure (house) (Exhibits P-22 to P-25) on the

suit  property  and  the  building  was  constructed  after  obtaining

permission and licence from Agara Gram Panchayat and regularly

taxes were paid with respect to the suit property and Khatha also

stands in favour of the respondent.  It was submitted that at no

point of time the BDA took possession of the property in question

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from the vendor or the respondent.  It was also argued that the

BDA  being  a  statutory  authority  created  for  the  purpose  of

formation of layouts and allotment of sites to the members of the

pubic, even in equity it was not proper, just or fair to deprive the

respondent of her only source of shelter.  The very objective of

the BDA is  to  provide  shelter  to  the  members of  public.   The

counsel,  thus,  pleaded  that  this  Court  should  not  exercise  its

extraordinary power under Article 136 of the Constitution even if

the judgment impugned suffers from any error if the said judgment

will not bring about any unjust result.

11) Another  submission  of  the  learned counsel  for  the  respondent

was that the very purpose for which the land was acquired was to

prepare a scheme for allotment of the houses to the members of

the  public.   As  per  Section  27  of  the  Bangalore  Development

Authority Act, 1976, such a scheme had to be prepared within five

years from the passage of the award, but the BDA had failed to do

so resulting in the lapsing of the scheme.  This was yet another

reason, according to the respondent, for not interfering with the

decree passed in favour of the respondent.

12) Tracing the history of the present litigation, learned counsel for

the respondent referred to the judgment of the Karnataka High

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Court  in  John B.  James & Ors.  v.  Bangalore  Development

Authority  & Anr.2  Delivering  the  judgment  in  that  case,  in  a

batch of  writ  petitions which were filed by the respondent  and

several others, the High Court, after elaborately considering the

rival contentions of the parties, had directed the writ petitioners,

including  the  respondent  herein  to  approach  the  civil  court  to

establish their claim that they had perfected their title to the suit

property  by adverse possession,  as is  clear  from the following

passage therefrom:

“85.  Where the petitioners claim that they are in settled possession for more than 12 years after the land  had  vested  in  BDA,  it  is  open  to  them  to approach the Civil Court for a declaration of title by establishing adverse possession for more than 12 years.”

13) Learned  counsel  for  the  respondent  joined  issue  qua  the

arguments  of  the appellant  predicated on the judgment  of  this

Court  in  M. Venkatesh  case with the submission that  the said

judgment had absolutely no application to the facts of the present

case  as  the  said  case  relates  to  the  vacant  house  site  and

construction of  building after  dispossession,  which was not  the

position in the instant case.  On the other hand, he referred to the

following  judgments  of  this  Court  wherein  symbolic/paper

possession is held to be no possession in the eyes of law and it is

2 ILR 2000 KAR 4134

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the actual possession under relevant rules which matters:

(i) Balwant Narayan Bhagde v. M.D. Bhagwat3

(ii) NTPC Ltd. v. Mahesh Dutta4

(iii) Raghbir Singh Sehrawat v. State of Haryana5

14) Learned  counsel  for  the  respondent  even  referred  to  the

provisions of the Right to Fair Compensation and Transparency in

Land Acquisition Rehabilitation and Resettlement Act, 2013, and

in  particular  sub-section  (2)  of  Section  24  which  lays  down

specific period within which the possession is to be taken of the

property  after  acquisition  and  when  no  such  possession  was

taken, the acquisition lapses.

15) In  the  first  blush,  argument  of  the  learned  counsel  for  the

respondent, viz., there is a finding of fact that respondent and her

predecessors-in-title  have  been  in  continuous  possession  and

enjoyment  of  the  suit  property  for  more  than  12  years  and,

therefore,  the  respondent  has  perfected  her  title  by  adverse

possession,  appears  to  be  attractive.   It  may  appear  to  be  a

finding of  fact  simplicitor.  However, an indepth analysis of  the

issue would manifest  that  the matter  cannot  be brushed aside

with such a simplisitic overtone.  In fact, the detailed discussion

3 (1976) 1 SCC 700 4 (2009) 8 SCC 339 5 (2012) 1 SCC 792

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that follows would amply demonstrates that the manner in which

the  issue  has  been  approached  by  the  courts  below  is  itself

erroneous and legally unsustainable.  For this, we are not even

required to discuss various nuances of the issue as the judgment

of this Court in  M. Venkatesh  has done this exercise whereby

same issue has been directly and squarely dealt with which arose

in almost  similar  circumstances.   Therefore,  it  would be apt  to

discuss the facts of that case as well as law laid down therein

which would provide answers to many arguments raised by the

parties before us.

16) In M. Venkatesh (supra) as well,  land was acquired by the State

Government of Karnataka and given at the disposal of the BDA.

Preliminary  Notification was issued on  July  17,  1984 and final

Notification  dated  November  28,  1986  was  published  on

December 25, 1986.  Determination of amount of compensation

payable  to  the  landowners  having  been  approved  by  the

competent authority on August 21, 1986, the BDA claimed that

possession of the land was taken over from the landowners and

handed over to the engineering section of the BDA by drawing a

possession Mahazar on November 06, 1987.  A Notification under

Section  16(2)  of  the  Act  was  also  published  in  the  Karnataka

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Gazette  dated  July  04,  1991  which,  according  to  the  BDA,

signified that the land in question stood vested with the BDA free

from all encumbrances whatsoever.  Here also, after taking of the

aforesaid  steps  by  the  BDA,  the  original  land  owners  of  the

acquired land sold the said land to different persons after carving

out the sites/plots.  When the actual possession was sought to be

taken, the said subsequent purchasers (like the respondent in the

instant appeal) filed writ  petitions in the High Court.   Their  writ

petitions, along with the writ petition of the respondent herein and

some  others,  were  the  subject  matter  of  the  judgment  of  the

Division  Bench  of  the  High  Court  in  John  B.  James's  case

(supra).  Like the respondent herein, the individuals/subsequent

purchasers  in  the  case  of  M.  Venkatesh  (supra)  were  also

relegated to the civil court giving them permission to file the suit if

they were claiming adverse possession.  Five such suits were the

subject matter of the judgment in M. Venkatesh (supra).  The trial

court  had,  in  fact,  clubbed  these  suits  which  were  decided

together  and decreed.   The issues framed in those suits  were

almost the same to the ones framed in the civil suit filed by the

respondent herein, as is clear from the issues which were settled

by the trial court in those cases:

“(1)  Whether the Plaintiffs prove that,  they have acquired and perfected their alleged title to the suit

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schedule properties by virtue of the alleged law on adverse possession, as claimed?

(2)  Whether the Plaintiffs prove their alleged lawful possession  and  enjoyment  of  the  suit  schedule properties, as on the date of the suit?

(3)  Whether the Plaintiffs further prove the alleged illegal  interferences  and  obstructions  by  the defendant?

(4)   Whether  the  defendant  proves  that,  the  suit schedule  properties  is  duly  acquired  by  the defendant, in accordance with law and as such, the same have stood vested with the defendant, free from all the encumbrances?

(5)  Whether the Plaintiffs are entitled to the suit relief  of  declaration  and  injunction,  against  the defendant?

(6)  What Order or Decree?”

17) In that  case also the trial  court  had recorded the findings that

those plaintiffs were in lawful possession on the date of the suit,

such  possession  was  for  more  than  12  years  and,  thus,  the

plaintiffs  had perfected their  title  to  the schedule properties by

way of adverse possession.  The BDA filed appeals against the

decree  passed  by  the  trial  court.   Four  appeals  were  allowed

wherein  the  High  Court  held  that  the  trial  court  was  wrong in

recording the finding that those four plaintiffs had established their

possession.   It  was noticed that  the plaintiffs  in  those appeals

were claiming settled possession of vacant piece of land, which

was clearly impermissible.  The High Court found that there was

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no dispute that all the structures on the suit properties, relevant to

those suits, had been demolished and that the land was a vacant

piece of land all along and at all material times, including on the

date of filing the suit as well as on the date of judgment.  These

four  plaintiffs  had  filed  appeals  which  were  dismissed  by  this

Court in  M. Venkatesh (supra) approving the view taken by the

High Court in the said four appeals.  Insofar as decision in those

four cases is concerned, it  may not be very relevant as in the

instant case it is not the vacant land with which we are concerned.

However,  what  is  relevant  for  us  is  the  discussion  in  the  fifth

appeal which was filed by the BDA in the High Court wherein the

High  Court  had  affirmed  the  decree  passed  in  favour  of  the

plaintiff.  The High Court noticed that in the said case the plaintiffs

were running a saw mill which was in operation long prior to the

filing of the suit and which continued to be in existence even on

the date of the suit as well as on the date of the judgment of the

High  Court.   Keeping  in  view the  aforesaid  position,  the  High

Court  relied  upon  its  Division  Bench  judgment  in  John  B.

James's  case  (supra) and  held  that  the  plaintiff  therein  was

entitled to protection against attempted eviction by the BDA.  On

this basis, decree passed by the trial court was affirmed.  This

judgment of the High Court was also appealed against, which also

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became  the  subject  matter  of  discussion  in  M.  Venkatesh

(supra).  Pertinently, this Court allowed the appeal of the BDA and

set aside the aforesaid judgment of the High Court and reversed

the decree passed by the trial court, thereby holding that even in

this case the plaintiff was not entitled to any protection.

18) Following reasons can be culled out in taking the aforesaid view

by this Court:

(a)  The plaintiff therein had purchased the property from the original

owners in terms of sale deed dated August 22, 1980, which was

long after the issuance of the preliminary notification published in

July 1984.  Such a sale was clearly void and non est in the eyes

of law, opined the Court.  In arriving at this conclusion, it referred

to  earlier  decisions  of  this  Court  in  U.P. Jal  Nigam  v.  Kalra

Properties Pvt. Ltd.6;  Ajay Kishan Singhal  v. Union of India7;

Mahavir  &  Anr.  v.  Rural  Institute,  Amravati  &  Anr.8;  Gian

Chand v. Gopala & Ors.9; Meera Sahni v. Lieutenant Governor

of Delhi & Ors.10; and Tika Ram v. State of Uttar Pradesh11.

(b)  As on the date of suit, the plaintiffs had not completed 12 years in

possession  of  the  suit  property  so  as  to  entitle  them to  claim 6 (1996) 3 SCC 124 7 (1996) 10 SCC 721 8 (1995) 5 SCC 335 9 (1995) 5 SCC 528 10 (2008) 9 SCC 177 11 (2009) 10 SCC 689

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adverse possession against the BDA, the true owner. This finding

was given on the basis that the plaintiffs could count the period of

the  so-called  adverse  possession  only  from  the  date  they

purchased  the  property  and  the  period  for  which  the  original

vendor held the property, or for that matter the date of  Mahazar,

could not be counted.

(c)   The  Court  also  rejected  the  argument  of  the  plaintiffs  that

possession of the land was never taken.  In this behalf, the Court

took the view that one of the settled mode of taking possession is

by drawing a panchnama, which part had been done to perfection

according to the evidence led by the BDA.  For this, the Court

referred to the judgments in  Tamil Nadu Housing Board  v.  A.

Viswam (D) by Lrs.12 and  Larsen & Toubro Ltd.  v.  State of

Gujarat & Ors.13

(d)  Most pertinently, the Court also held that the plaintiffs could not

claim adverse possession as, on the facts of that  case, it could

not be said that possession of the plaintiffs was peaceful, open,

continuous and non-hostile.  On this aspect, the Court took note

of  essentials  of  adverse  possession,  which  are  required  to  be

proved, from the judgment in the case of  Karnataka Board of

12 (1996) 2 SCC 634 13 (1998) 4 SCC 387

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Wakf  v.  Government  of  India14 and  some  other  judgments.

Discussion in this behalf  is contained in paras 15 to 18, which

read as under:

“15. Coming    then   to   the   question   whether the  plaintiffs-respondents  could  claim  adverse possession,  we  need  to  hardly  mention  the  well known and oft quoted maxim nec vi, nec clam, nec precario meaning thereby that adverse possession is proved only when possession is peaceful, open, continuous and hostile.  The essentials of adverse possession  were  succinctly  summed-up  by  this Court in Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779 in the following words:

“11.In the eye of the 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  the  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  Sakina (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

14 (2004) 10 SCC 779

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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. [Mahesh Chand Sharma (Dr.)  v.  Raj  Kumari  Sharma  (1996)  8  SCC 128)."

16. Reference may also be made to the decision of this Court in  Saroop Singh v. Banto (2005) 8 SCC 330, where this Court emphasised the importance of animus possidendi and observed:

“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 defendant's  possession  becomes  adverse. (See Vasantiben Prahladji  Nayak v. Somnath Muljibhai Nayak (2004) 3 SCC 376).

30.  "Animus  possidendi"  is  one  of  the ingredients of adverse possession. Unless the person possessing the land has the requisite animus  the  period  for  prescription  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 (2004) 1 SCC 371, SCC para 21.)"

17. Also noteworthy is the decision of this Court in Mohan  Lal v.  Mirza  Abdul  Gaffar (1996)  1  SCC 639, where this Court held that claim of title to the property  and  adverse  possession  are  in  terms

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contradictory. This Court observed:

“4. As regards the first plea, it is inconsistent with  the  second  plea.  Having  come  into possession  under  the  agreement,  he  must disclaim  his  right  thereunder  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 of his title  by  prescription  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  the  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."

18. To the same effect is the decision of this Court in Annasaheb Bapusaheb Patil v. Balwant (1995) 2 SCC  543,  where  this  Court  elaborated  the significance of a claim to title viz.-a-viz. the claim to adverse possession over the same property. The Court said:

“15.  Where possession can be referred to a lawful  title,  it  will  not  be  considered  to  be adverse.  The  reason  being  that  a  person whose possession can be referred to a lawful title  will  not  be  permitted  to  show  that  his possession was hostile to another's title. One who  holds  possession  on  behalf  of  another, does  not  by  mere  denial  of  that  other's  title make his  possession  adverse  so  as  to  give himself the benefit of the statute of limitation. Therefore,  a  person  who  enters  into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all."

19) After  taking  note  of  the  principle  of  law  relating  to  adverse

possession in the aforesaid manner, this Court commented about

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the  erroneous  approach  of  the  High  Court  in  the  following

manner:

“19.  The Courts below have not seen the plaintiff- respondent's  claim  from  the  above  perspectives. The  High  Court  has,  in  particular,  remained oblivious  of  the  principle  enunciated  in  the decisions to which we have referred herein above. All that the High Court has found in favour of the plaintiffs  is  that  their  possession  is  established. That, however, does not conclude the controversy. The question is not just whether the plaintiffs were in possession,  but  whether  they had by being in adverse possession for the statutory period of 12 years perfected their title. That question has neither been  adverted  to  nor  answered  in  the  judgment impugned in this appeal. Such being the case the High Court, in our opinion, erred in dismissing the appeal filed by the appellant-BDA. The fact that the plaintiffs had not and could not possibly establish their  adverse  possession  over  the  suit  property should have resulted in dismissal of the suit for an unauthorised occupant had no right to claim relief that would perpetuate his illegal and unauthorised occupation  of  property  that  stood  vested  in  the BDA.”

20) In  addition  to  the  discussion  contained  in  M. Venkatesh  case

noted  above,  we  may  also  add  what  was  held  in  P.T.

Munichikkanna Reddy & Ors. v. Revamma & Ors.15:

“5.  Adverse possession in one sense is based on the  theory  or  presumption  that  the  owner  has abandoned the property to the adverse possessor 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;  Arkansas Commemorative Commission v. City of Little Rock; Monnot  v.  Murphy;  and  City  of  Rock  Springs  v.

15 (2007) 6 SCC 59

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Sturm).”    

21) In Rama Shankar & Anr. v. Om Prakash Likhdhari & Ors.16, the

Allahabad High Court has observed as under:

“21.  The principle of adverse possession and its consequences  wherever  attracted  has  been recognized  in  the  statute  dealing  with  limitation. The  first  codified  statute  dealing  with  limitation came to be enacted in 1840.  The Act 14 of 1840 in fact was an enactment applicable in England but it was  extended  to  the  territory  of  Indian  continent which was under the reign of East India Company, by an authority of Privy Council in the  East India Company  v.  Oditchurn  Paul,  1849 (Cases  in  the Privy Council on Appeal from the East Indies) 43.

xx xx xx

23.  The law of Prescription prescribes the period at the expiry of which not only the judicial remedy is barred  but  a  substantive  right  is  acquired  or extinguished.   A prescription,  by  which  a  right  is acquired, is called an  'acquisitive prescription'.   A prescription  by  which  a  right  is  extinguished  is called  'extinctive  prescription'.   The  distinction between  the  two  is  not  of  much  practical importance or substance.  The extinction of right of one  party  is  often  the  mode  of  acquiring  it  by another.   The  right  extinguished  is  virtually transferred  to  the  person  who  claims  it  by prescription.   Prescription  implies  with  the  thing prescribed for is the property of another and that it is enjoyed adversely to that other.  In this respect it must  be  distinguished  from  acquisition  by  mere occupation  as  in  the  case  of  res  nullius.   The acquisition in such cases does not  depend upon occupation for any particular length of time.”

22) The aforesaid analysis of the judgment in  M. Venkatesh (supra)

amply shows that it is squarely and directly applicable to the facts

16 (2013) 6 ADJ 119

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and circumstances of the present case.  In the first instance, it

shows that reliance of the respondent herein on the judgment of

John  B.  James  (supra)  is  of  no  avail.   It  would  further

demonstrate that the findings of the court below that only paper

possession was taken and actual possession was not taken also

becomes meaningless as the manner of taking possession in the

instant case was also identical.  In addition, it is pertinent that the

respondent herein, in para 10 of the plaint, had herself admitted

that the officials of the BDA had come to the suit property on April

24, 2001 and demolished the existing structure.  This act of the

BDA would  amply  demonstrate  that  there  was  no  unhindered,

peaceful and continuous possession of the suit land.

23) Learned counsel for the respondent had raised the plea of equity.

He has also submitted that when the BDA itself is created for the

purpose  of  formation  of  layouts  and  allotment  of  sites  to  the

members  of  the  public,  the  respondent  should  not  be

dispossessed when she is in continuous possession of the suit

property.   However,  these  would  not  be  the  relevant

considerations in the present case as we cannot forget that the

present appeal arises out of civil proceedings filed in the form of a

suit by the respondent and once it is found that the respondent

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has not been able to prove title by adverse possession, no such

aspects, not coming within the scope of the suit proceedings, can

be looked into.  Insofar as the argument predicated on Section 27

of the Bangalore Development Authority Act or Section 24(2) of

the  Right  to  Fair  Compensation  and  Transparency  in  Land

Acquisition  Rehabilitation  and  Resettlement  Act,  2013  are

concerned, again these issues were neither raised nor arise in the

instant case.  If the respondent, if at all, has any right to make

claim on the aforesaid grounds, in any appropriate proceedings,

she can do so,  if  permissible in  law.  We may clarify  that  this

Court  has  not  gone  into  these  issues  and,  therefore,  has  not

made any comments on the merits of such pleas raised by the

respondent.

24) As a result, the appeal stands allowed resulting in dismissal of the

suit  filed by the respondent in the trial  court.   In the facts and

circumstances of this case, there shall be no order as to costs.

.............................................J. (A.K. SIKRI)

.............................................J. (R.K. AGRAWAL)

NEW DELHI; MARCH 10, 2016.

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