REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 190 OF 2020 (ARISING OUT OF SLP (CIVIL) NO. 16321 OF 2011)

SHRI UTTAM CHAND (D) THROUGH LRS. .....APPELLANT(S)

VERSUS

NATHU RAM (D) THROUGH LRS. & ORS. .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1. Plaintiff is in appeal before this Court aggrieved against judgment

and decree passed by the High Court of Delhi on 18th February,

2011 whereby, the defendants second appeal was allowed and the

suit  of  the  plaintiff  for  possession  on  the  basis  of  title  was

dismissed.

2. The plaintiff filed a suit for possession on the basis of purchase of

suit  property  from  the  Managing  Officer,  Department  of

Rehabilitation,  Government  of  India  in  a  public  auction  held  on

21st March, 1964.  The certificate of sale was issued thereafter on

4th January, 1965.  The plaintiff filed a suit for possession on 17th

February, 1979 alleging the defendants to be in an unauthorised

possession of the suit property and who have refused to vacate the

same.   

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3. The defendants in the written statement denied that the plaintiff is

the  owner  of  the  property.   The  defendants  asserted  that  their

house existed on the property in question for more than the last

two centuries.  The grandfather of the defendants was said to be in

possession of  the property as owner,  thereafter their  father one

Tara Chand and now all the defendants are in possession of the

property  as  owners.   It  was  denied  that  the  property  was  ever

vested with the Managing Officer and,  therefore,  it  was claimed

that the Managing Officer has no authority or jurisdiction to auction

the property in question.  Therefore, the plaintiff has no interest,

right or title in the property.

4. Parties went to trial on the following issues:

“1. Whether the suit is properly valued for the purpose of Court fee & Jurisdiction?

2. Whether the suit is time barred?

3. Whether the plaintiff is the owner of the property in suit?

4. Whether the defendants become owner by adverse possession of the property in suit?

5.  Whether  the  defendants  are  in  unauthorized occupation of the property in dispute?

6. Relief.”

5. Before the learned trial court, the plaintiff examined PW-4 Chander

Bhan, Lower Division Clerk from the Land and Building Department

who has proved that the sale certificate was issued in favour of

plaintiff on 15th January, 1965.  The learned trial court recorded the

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finding on the basis of  testimonies of  Din Dayal Khanna (PW-3),

Chander  Bhan  (PW-4)  and  S.B.  Lal  (PW-5)  that  the  property  is

situated in Khasra No. 9 and has been sold through auction.  The

learned  trial  court  also  considered  the  testimonies  of  Bhagwan

Dass (DW-1) and Ranjit (DW-2), both sons of the defendant, that

the plaintiff is the owner of the property purchased through Ex.B4/1

in  an  auction  from  the  Managing  Officer,  Department  of

Rehabilitation.  Thus, Issue No. 3 was held in favour of the plaintiff

and the plaintiff was found to be owner of the property.  But Issue

Nos.  2,  4  and 5  were  decided  in  favour  of  the  defendants  and

against the plaintiff and consequently the suit was dismissed but

with a direction to the plaintiff to make good the deficiency of court

fee of Rs. 2000/- within one month in view of the finding recorded

on Issue No. 1.

6. In the first appeal by the plaintiff, the learned First Appellate Court

affirmed the findings recorded by the trial court on Issue Nos. 1 and

3  that  the  plaintiff  is  the  owner  of  the  property  in  question.

However, in respect of Issue No. 2 as to whether the suit is time

barred, the learned First Appellate Court returned a finding that the

suit is within time as the same was filed on February 17, 1979 i.e.

before the completion of 12 years.  Issue No. 2 was decided against

the defendants holding that the findings recorded by the trial court

that  the  limitation  starts  from the  date  of  purchase  of  the  suit

property is not sustainable.  The right of the respondents over the

property  was  challenged  before  the  completion  of  12  years,

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therefore,  the  suit  filed  in  February,  1979  is  within  period  of

limitation.  Under issue No. 4, the findings recorded were that the

mere possession of land, however long it may be, would not ripe

into possessory title unless the possessor has animus possidendi to

hold the land adverse to the title of the true owner.  The assertion

of title must be clear and unequivocal.  Consequently, Issue No. 5

was  also  decided  against  the  defendants  and  the  suit  stood

decreed.

7. In  the  second  appeal,  the  High  Court  affirmed  the  finding  of

ownership in favour of the plaintiff and relied upon electricity and

house tax bills showing the possession of the defendants over the

suit  property from November,  1963.  It  was,  thus, held that the

adverse  possession  of  the  defendants  over  the  same  matured

within 12 years, by November, 1995, therefore, the suit filed on

17th February, 1979 was barred by limitation.

8. The High Court referred to the statement of PW-1 Uttam Chand that

the suit property was assessed to house tax but no one had paid

such tax.  He stated that there was only one kachha room of mud

at the site but he did not know when the unauthorised construction

was  made in  the  suit  property.   The High  Court  considered  the

statement of witness of the plaintiff to return a finding that Tara

Chand, deceased father of the defendants was found in possession

of the suit  property in March, 1964.  The High Court returned a

finding that Tara Chand was in occupation of the suit property even

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prior to the purchase of the same by the plaintiff in the year 1964.

The Court  referred to the judgment of  this  Court  reported as  T.

Anjanappa & Ors.  v.  Somalingappa & Anr.1 to  hold that  the

defendants  were  in  open,  uninterrupted,  peaceful  and  hostile

possession  since  March,  1964  and  the  period  of  12  years  was

completed in March, 1976.  Therefore, the suit filed by the plaintiff

on 17th February, 1979 was barred by limitation.   

9. Learned counsel for the appellant argued that for a successful plea

of  adverse  possession  against  the  true  owner,  the  person  in

possession has to admit hostile possession to the knowledge of the

true owner.  The defendants in their written statement have not

admitted the title of the appellant and of adverse possession to the

knowledge of the true owner.  The defendants have denied vesting

of the land with the Managing Officer and the subsequent sale in

favour of the appellant. The trial court has returned a finding as to

the title of the appellant itself and such finding has not been set

aside neither by the First Appellate Court nor by the High Court.

The defendants are asserting their long and continuous possession

but such possession howsoever long cannot be termed as adverse

possession so as to perfect title within the meaning of Article 65 of

the  Limitation  Act.   It  was  argued  that  long  possession  is  not

necessarily  adverse  possession.   Reliance  is  placed  upon

Karnataka Board of  Wakf  v.  Government of India & Ors.2,

Kurella  Naga  Druva  Vudaya  Bhaskara  Rao  v.  Galla  Jani

1  (2006) 7 SCC 570 2  (2004) 10 SCC 779

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Kamma alias Nacharamma3 and Dagadabai (Dead) by Legal

Representatives v. Abbas alias Gulab Rustum Pinjari4.   

10. On the other hand, learned counsel for the defendants argued that

the  witness  of  the  plaintiff  has  admitted  the  possession  of  the

defendants  in  the  year  1964  itself  i.e.  before  the  purchase,

therefore,  the  possession  is  adverse  to  the  knowledge  of  the

appellants.   

11. In  T. Anjanappa, this Court has set aside the finding of the High

Court that the defendants claiming adverse possession do not have

to prove who is the true owner.   If the defendants are not sure who

the true owner is, the question of them being in hostile possession

as well as of denying the title of the true owner does not arise.  The

Court held as under:

“12.  The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or  impliedly  in  denial  of  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 clear and unequivocal evidence that his possession was hostile to the real owner and amounted to  denial  of  his  title  to  the  property  claimed.  For deciding  whether  the  alleged  acts  of  a  person constituted  adverse  possession,  the  animus  of  the person  doing  those  acts  is  the  most  crucial  factor. Adverse  possession  is  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  denial  of  the owner's  right  excluded him from the enjoyment of his property.

3  (2008) 15 SCC 150 4  (2017) 13 SCC 705

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13.  Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them:

“24. It  is a matter of fundamental principle of law that where possession can be referred to a lawful  title,  it  will  not  be  considered  to  be adverse. It is on the basis of this principle that it has been laid down that since the possession of one co-owner can be referred to his status as co-owner,  it  cannot  be  considered  adverse  to other  co-owners.”  (See Vidya  Devi v. Prem Prakash [(1995) 4 SCC 496] , SCC p. 504, para 24.)

14.  Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to be adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful owner's title e.g. trustees, guardians, bailiffs or agents. Such persons cannot set up adverse possession:

“14.  …  Adverse  possession  means  a  [hostile possession]  which  is  expressly  or  impliedly  in denial of title of the true owner. Under Article 65 [of  the  Limitation  Act,]  burden  is  on  the defendants to prove affirmatively. A person who bases his title on adverse possession must show by  clear  and  unequivocal  evidence  i.e. possession  was  hostile  to  the  real  owner  and amounted to a denial of his title to the property claimed. In deciding whether the acts,  alleged by  a  person,  constitute  adverse  possession, regard must be had to the animus of the person doing  those  acts  which  must  be  ascertained from the facts and circumstances of each case. The  person  who  bases  his  title  on  adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. …

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

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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. (See Annasaheb  Bapusaheb Patil v. Balwant [(1995) 2 SCC 543, p. 554 : AIR 1995 SC 895, p. 902] , SCC p. 554, paras 14- 15.)”

12. In Kurella Naga Druva Vudaya Bhaskara Rao, the payment of

tax  receipts  and  mere  possession  for  some  years  was  found

insufficient  to  claim  adverse  possession.   It  was  held  that  if

according to the defendant, the plaintiff was not the true owner, his

possession hostile to the plaintiff's title will not be sufficient.  The

Court held as under:

“19.  The defendant claimed that he had perfected his title  by  adverse  possession  by  being  in  open, continuous and hostile possession of the suit property from 1957. He also produced some tax receipts showing that he has paid the taxes in regard to the suit land. Some tax receipts also showed that he paid the tax on behalf of someone else. After considering the oral and documentary evidence, both the courts have entered a concurrent finding that the defendant did not establish adverse possession, and that mere possession for some years was not sufficient  to  claim adverse possession, unless such possession was hostile possession, denying the title of the true owner. The courts have pointed out that if according to the defendant, the plaintiff was not the true owner, his possession hostile to the plaintiff's title will not be sufficient and he had to show that his possession was also hostile to the title and possession of the true owner. After detailed analysis of the oral and documentary  evidence,  the  trial  court  and  the  High Court also held that the appellant was only managing the  properties  on  behalf  of  the  plaintiff  and  his

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occupation was not hostile possession.”

13. In  Brijesh  Kumar  &  Anr.  v.  Shardabai  (Dead)  by  Legal

Representatives & Ors.5, the Court held as under:

“13.   Adverse  possession  is  hostile  possession  by assertion of a hostile title in denial of the title of the true  owner  as  held  in M.  Venkatesh [M. Venkatesh v. BDA, (2015) 17 SCC 1 : (2017) 5 SCC (Civ) 387] . The respondent had failed to establish peaceful, open  and  continuous  possession  demonstrating  a wrongful ouster of the rightful owner. It thus involved question  of  facts  and  law.  The  onus  lay  on  the respondent  to  establish  when and how he came into possession, the nature of his possession, the factum of possession  known  and  hostile  to  the  other  parties, continuous possession over 12 years which was open and undisturbed. The respondent was seeking to deny the  rights  of  the  true  owner.  The  onus  therefore  lay upon the respondent to establish possession as a fact coupled with that it was open, hostile and continuous to the  knowledge  of  the  true  owner.  The  respondent- plaintiff  failed  to  discharge  the  onus.  Reference  may also  be  made  to Chatti  Konati  Rao v. Palle  Venkata Subba  Rao [Chatti  Konati  Rao v. Palle  Venkata  Subba Rao, (2010) 14 SCC 316 : (2012) 1 SCC (Civ) 452] , on adverse possession observing as follows: (SCC p. 322, para 15)

“15.  Animus  possidendi as  is  well  known  is  a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to  the  title  of  the  true  owner  for  the  said purpose.  The  person  who  claims  adverse possession is required to establish the date on which  he  came  in  possession,  nature  of possession,  the  factum  of  possession, knowledge  to  the  true  owner,  duration  of possession and that possession was open and undisturbed.  A  person  pleading  adverse possession has no equities in his favour as he is trying  to  defeat  the  rights  of  the  true  owner and,  hence,  it  is  for  him to clearly  plead  and establish  all  facts  necessary  to  establish adverse  possession.  The  courts  always  take unkind  view  towards  statutes  of  limitation

5  (2019) 9 SCC 369

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overriding property rights. The plea of adverse possession is not a pure question of law but a blended one of fact and law.””

14. As to whether the plaintiff can claim title on the basis of adverse

possession, this Court in a judgment reported as  Ravinder Kaur

Grewal & Ors. v. Manjit Kaur & Ors.6 has held as under:

“60.   The  adverse  possession  requires  all  the  three classic  requirements  to  co-exist  at  the  same  time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful  so that if  the owner does not take  care  to  know  notorious  facts,  knowledge  is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed  on  a  title  which  is  not  pleaded. Animus possidendi under  hostile  colour  of  title  is  required. Trespasser's  long  possession  is  not  synonymous  with adverse  possession.  Trespasser's  possession  is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor  looks  after  the property,  protects  it  and  in case of agricultural property by and large the concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature  in  various  States  confers  rights  based  on possession.”

15. The  matter  has  been  examined  by  a  Constitution  Bench  in  M

Siddiq  (D)  through  LRs  v.  Mahant  Suresh  Das  &  Ors.7

wherein,  it  has  been  held  that  a plea  of  adverse  possession  is

founded on the acceptance that ownership of the property vests in

another, against whom the claimant asserts possession adverse to

the title of the other.  The Court held as under:

“747.  A plea of adverse possession is founded on the acceptance  that  ownership  of  the  property  vests  in another  against  whom  the  claimant  asserts  a

6  (2019) 8 SCC 729 7  (2019) SCC OnLine SC 1440

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possession adverse to the title of the other. Possession is  adverse  in  the  sense  that  it  is  contrary  to  the acknowledged title in the other person against whom it is claimed. Evidently, therefore, the plaintiffs in Suit 4 ought  to  be  cognisant  of  the  fact  that  any  claim  of adverse possession against  the Hindus or  the temple would amount to an acceptance of a title in the latter. Dr Dhavan has submitted that this plea is a subsidiary or alternate plea upon which it is not necessary for the plaintiffs to stand in the event that their main plea on title is held to be established on evidence. It becomes then necessary to assess as to  whether  the claim of adverse possession has been established.

748.   A  person  who  sets  up  a  plea  of  adverse possession  must  establish  both  possession  which  is peaceful,  open  and  continuous  -  possession  which meets the requirement of being ‘nec vi nec claim and nec  precario’.  To  substantiate  a  plea  of  adverse possession,  the  character  of  the  possession  must  be adequate in continuity and in the public because the possession  has  to  be  to  the  knowledge  of  the  true owner in order for it to be adverse. These requirements have to be duly established first by adequate pleadings and second by leading sufficient evidence. Evidence, it is well settled, can only be adduced with reference to matters  which  are  pleaded  in  a  civil  suit  and  in  the absence  of  an  adequate  pleading,  evidence  by  itself cannot supply the deficiency of a pleaded case. Reading paragraph  11(a),  it  becomes  evident  that  beyond stating that  the Muslims have been in long exclusive and  continuous  possession  beginning  from  the  time when the Mosque was built and until it was desecrated, no factual basis has been furnished. This is not merely a matter  of  details  or  evidence.  A  plea  of  adverse possession seeks to defeat the rights of the true owner and  the  law  is  not  readily  accepting  of  such  a  case unless a clear and cogent basis has been made out in the pleadings and established in the evidence.

xx xx xx

752.  In Supdt. and Remembrance of Legal Affairs, West Bengal v. Anil Kumar Bhunja, (1979) 4 SCC 274, Justice R S Sarkaria, speaking for a three judge Bench of this Court  noted  that  the  concept  of  possession  is “polymorphous.  embodying  both  a right  (the  right  to enjoy) and a fact (the real intention). The learned judge

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held:

“13. “It is impossible to work out a completely logical  and  precise  definition  of  “possession” uniformly  applicable  to  all  situations  in  the contexts of all statutes. Dias and Hughes in their book  on Jurisprudence say  that  if  a  topic  ever suffered from too much theorising it is that of “possession”.  Much  of  this  difficulty  and confusion  is  (as  pointed  out  in Salmond's Jurisprudence, 12th Edn., 1966) caused by the fact  that  possession  is  not  purely  a  legal concept.  “Possession”,  implies  a  right  and  a fact; the right to enjoy annexed to the right of property  and  the  fact  of  the  real  intention. It involves power of control and intent to control. (See Dias and Hughes, ibid.).”

These  observations  were  made  in  the  context  of possession in Section 29(b) of the Arms Act 1959.

In P Lakshmi Reddy v. L Lakshmi Reddy, 1957 SCR 195, Justice  Jagannadhadas,  speaking  for  a  three  judge Bench of this Court dwelt on the “classical requirement” of adverse possession:

“4.  Now,  the ordinary classical  requirement of adverse possession is that it  should be nec vi nec clam nec precario. (See Secretary of State for India v. Debendra Lal Khan [(1933) LR 61 IA 78,  82]  ).  The  possession  required  must  be adequate in continuity, in publicity and in extent to  show  that  it  is  possession  adverse  to  the competitor.”

The court cited the following extract from U N Mitra's “Tagore  Law  Lectures  on  the  Law  of  Limitation  and Prescription”:

“7…An  adverse  holding  is  an  actual  and exclusive appropriation of land commenced and continued under a claim of right,  either under an openly avowed claim, or under a constructive claim (arising from the acts and circumstances attending  the  appropriation),  to  hold  the  land against him (sic) who was in possession. (Angell, Sections  390  and  398).  It  is  the  intention  to claim  adversely  accompanied  by  such  an

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invasion of the rights of the opposite party as gives him a cause of  action which constitutes adverse possession.” (6th Edition, Vol. I, Lecture VI, at page 159)

This Court held:

“7…Consonant  with  this  principle  the commencement  of  adverse  possession,  in favour of a person implies that the person is in actual possession, at the time, with a notorious hostile  claim of  exclusive title,  to repel  which, the true owner would then be in a position to maintain  an  action.  It  would  follow  that whatever may be the animus or intention of a person  wanting  to  acquire  title  by  adverse possession  his  adverse  possession  cannot commence  until  he  obtains  actual  possession with the requisite animus.”

In Karnataka  Board  of  Wakf v. Government  of  India, (2004) 10 SCC 779, Justice S Rajendra Babu, speaking for a two judge Bench held that:

“11…Physical  fact  of  exclusive possession and the  animus  possidendi  to  hold  as  owner  in exclusion  to  the  actual  owner  are  the  most important  factors  that  are  to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse  possession  should  show:  (a)  on  what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed.”

The ingredients  must be set up in the pleadings and proved  in  evidence.  There  can  be  no  proof  sans pleadings  and  pleadings  without  evidence  will  not establish a case in law.

In Annakili v. A Vedanayagam, (2007) 14 SCC 308, this Court emphasized that mere possession of land would not ripen into a possessory title.  The possessor must have animus possidendi and hold the land adverse to the title of the true owner. Moreover, he must continue

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in  that  capacity  for  the  period  prescribed  under  the Limitation Act.”

16. In the present case, the defendants have not admitted the vesting

of the suit property with the Managing Officer and the factum of its

transfer in favour of the plaintiff.  The defendants have denied the

title not only of the Managing Officer but also of the plaintiff.  The

plea of the defendants is one of continuous possession but there is

no plea that such possession was hostile to the true owner of the

suit property.  The evidence of the defendants is that of continuous

possession.  Some of the receipts pertain to 1963 but possession

since November, 1963 till the filing of the suit will not ripe into title

as  the  defendants  never  admitted  the  plaintiff-appellant  to  be

owner or that the land ever vested with the Managing Officer.  In

view of the judgments referred to above, we find that the findings

recorded by the High Court  that  the defendants  have perfected

their  title  by  adverse  possession  are  not  legally  sustainable.

Consequently, the judgment and decree passed by the High Court

is set aside and the suit is decreed.  The appeal is allowed.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI; JANUARY 15, 2020.

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