TaxTMI 
TaxTMI 
2007 (4) TMI 738
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....ver, when allegedly their possession was sought to be disturbed by the respondent in the year 1988, they filed a suit in the court of Additional City Civil Judge, Bangalore which was marked as O.S. No. 287 of 1989. In the said suit, they claimed title on the basis of adverse possession stating: ...The plaintiffs submit that in any event the plaintiffs have perfected their title by adverse possession as the plaintiffs have been in open, continuous uninterrupted and hostile possession of the plaint schedule land, adversely to the interest of any other person including the defendant for the past over fifty years exercising absolute rights of ownership in respect of the plaint schedule land.... 2. Defendants - Respondents in their written statement denied and disputed the aforementioned assertion of the plaintiffs and pleaded their own right, title and interest as also possession in or over the said 1 acre 21 guntas of land. The learned Trial Judge decreed the suit inter alia holding that the plaintiffs-appellants have acquired title by adverse possession as they have been in possession of the lands in question for a period of more than 50 years. On an appeal having been prefe....
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....42 (1913); City of Rock Springs v. Sturm 39 Wyo. 494 273 P. 908 A.L.R. (1929) 97 1 5. Efficacy of adverse possession law in most jurisdictions depend on strong limitation statutes by operation of which right to access the court expires through effluxion of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or color of title. (See American Jurisprudence, Vol. 3, 2d, Page 81). It is important to keep in mind while studying the American notion of Adverse Possession, especially in the backdrop o....
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....ssessed nor has he in any relevant sense an estate "commensurate with" the estate of the dispossessed. All that this misleading phrase can mean is that, since his possession only defeats the rights of those to whom it has been adverse, there may be rights not prescribed against, such, for instance, as equitable easements, which axe no less enforceable against him in respect of the land than they would have been against the owners he has dispossessed. Also see Privy Council's decision in Chung Ping Kwan and Ors. v. Lam Island Development Company Limited (Hong Kong) (1997) AC 38 in this regard. 7. Therefore, to assess a claim of adverse possession, two-pronged enquiry is required: 1. Application of limitation provision thereby jurisprudentially "willful neglect" element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner. 2. Specific Positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express state....
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....ss vis-a-vis intention to possess. This distinction can be marked very distinctively in the present circumstances. 12. Importantly, intention to possess can not be substituted for intention to dispossess which is essential to prove adverse possession. The factum of possession in the instant case only goes on to objectively indicate intention to possess the land. As also has been noted by the High Court, if the appellant has purchased the land without the knowledge of earlier sale, then in that case the intention element is not of the variety and degree which is required for adverse possession to materialize. The High Court observed: It is seen from the pleadings as well in evidence that the plaintiff came to know about the right of the defendants', only when disturbances were sought to be made to his possession. 13. In similar circumstances, in the case of Thakur Kishan Singh (dead) v. Arvind Kumar AIR1995SC73 this Court held: As regards adverse possession, it was not disputed even by the trial court that the appellant entered into possession over the land in dispute under a licence from the respondent for purposes of brick-kiln. The possession thus initially ....
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....dgment it is consistent with principle as well as authority that a person who originally entered another's land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner. What is really meant, in my judgment, is that the animus possidendi involves the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow. 15. Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving (willful) or omission (negligent or otherwise) of right to defend or care for the integrity of property on the....
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....of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper owner. In Narne Rama Murthy v. Ravula Somasundaram and Ors.: (2005) 6 SCC 614 this Court held: However, in cases where the question of limitation is a mixed question of fact and law and the suit does not appear to be barred by limitation on the face of it, then the facts necessary to prove limitation must be pleaded, an issue raised and then proved. In this case the question of limitation is intricately linked with the question whether the agreement to sell was entered into on behalf of all and whether possession was on behalf of all. It is also linked with the plea of adverse possession. Once on facts it has been found that the purchase was on behalf of all and that the possession was on behalf of all, then, in the absence of any open, hostile and overt act, ther....
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.... 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 [1964]6SCR780 , Parsinni v. Sukhi (1993)4SCC375 and D.N. Venkatarayappa v. State of Karnataka: AIR1997SC2930 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 undisturbe....
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....wledge 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 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 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. 3. New Paradigm to Limitation Act 20. The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned: once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession. The ingredients of adverse possession have succinctly b....
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....g that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise. Above being the position the High Court's judgment is clearly unsustainable... [See also Des Raj and Ors. v. Bhagat Ram (Dead) By LRs. and Ors. (2007)9SCC641 ; Govindammal v. R. Perumal Chettiar and Ors. AIR2007SC204 ] CONTENTIONS OF PARTIES 21. The decision of the Judicial Committee in Debendra Lal Khan (supra), whereupon reliance has been placed by Mr. Krishnamoorthy, does not militate against the aforementioned propositions of law. The question which arose for consideration therein was as to whether the plaintiff had acquired right or title to the fisheries by adverse possession in the portion of river Cossye. In the aforementioned situation, it was held that the Limitation Act is indulgent to the Cr....
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....n an unkind view to the concept of adverse possession in the recent judgment of J.A. Pye (Oxford) Ltd v. the United Kingdom [2005] ECHR 921 which concerned the loss of ownership of land by virtue of adverse possession. 26. In the instant case the applicant company was the registered owner of a plot of 23 hectares of agricultural land. The owners of a property adjacent to the land, Mr. and Mrs. Graham ("the Grahams") occupied the land under a grazing agreement. After a brief exchange of documents in December 1983 a chartered surveyor acting for the applicants wrote to the Grahams noting that the grazing agreement was about to expire and requiring them to vacate the land. 27. In essence, from September 1984 onwards until 1999 the Grahams continued to use the whole of the disputed land for farming without the permission of the applicants. 28. In 1997, Mr Graham moved the Local Land Registry against the applicant on the ground that he had obtained title by adverse possession. The applicant companies responded to the motion and importantly also issued further proceedings seeking possession of the disputed land. 29. The Grahams challenged the applicant companies' claims under the....
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....gistered land, and in the days before registration became the norm, such a result could no doubt be justified as avoiding protracted uncertainty where the title to land lay. But where land is registered it is difficult to see any justification for a legal rule which compels such an apparently unjust result, and even harder to see why the party gaining title should not be required to pay some compensation at least to the party losing it. It is reassuring to learn that the Land Registration Act 2002 has addressed the risk that a registered owner may lose his title through inadvertence. But the main provisions of that Act have not yet been brought into effect, and even if they had it would not assist Pye, whose title had been lost before the passing of the Act. While I am satisfied that the appeal must be allowed for the reasons given by my noble and learned friend, this is a conclusion which I (like the judge [Neuberger J]...) 'arrive at with no enthusiasm'. Thereafter the applicants moved the European Commission of Human Rights (ECHR) alleging that the United Kingdom law on adverse possession, by which they lost land to a neighbour, operated in violation of Article 1 of Pro....
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....he ECHR. This case sets the field of Adverse Possession and its interface with the right to peaceful enjoyment in all its complexity. 35. Therefore it will have to be kept in mind the Courts around the world are taking an unkind view toward statutes of limitation overriding property rights. THE PRESENT CASE 36. It is to be borne in mind that the respondent had already purchased 1 acre 21 guntas out of the 5 acres 25 guntas under a duly registered deed dated 1.9.1933. Appellant bought the entire chunk of 5 acres 23 guntas subsequent to the respondent's transaction. The validity of such sale is not the question in the instant case but the transaction relating to 1 acre 23 Guntas remains an important surrounding circumstance to assess the nature of appellant's possession. The question is whether it is a case of mistaken possession ignoramus of the previous sale or adverse possession having the mental element in the requisite degree to dispossess. Also much depends on the answer to the query regarding the starting point of adverse possession: when can the possession be considered to have become adverse? In the facts and circumstances of this case, the possession of appellant....