Raman Vs S. Devadasa Maller and others

S. Padmanabhan J.

1. Simple question for consideration in the second appeal filed by the first defendant is whether his possession of the suit property for more than 40 years till the institution of the suit along with other portions as full owner under the impression that it belongs to him without being aware that it is part of the land belonging to the respondents (plaintiff and defendants 2 to 9, who are co-owners) will constitute adverse possession capable of acquiring title. Suit property is five cents of land. It is not in dispute that it is A-B-C-D plot in the plan attached to Ext. A2 decree in O.S. No. 323 of 1974 on the file of the Munsiff, Kannur. That was a suit for injunction filed by the predecessors of the respondents against the appellant in relation to the same property. In that case, there was a contention for the plaintiffs that there was permissive occupation of the land for construction of a shop building. Permissive occupation as tenant was found against and the appellant was found in possession on independent claim of title. The suit was dismissed and A.S. No. 155 of 1977 filed against it was also dismissed. It was then that the present suit, O.S. No. 314 of 1979, was filed by the first respondent for recovery of possession on the strength of title.

2. In the present suit also, the allegation is permissive occupation of the land for the construction of a shop building, which, subsequently, fell down. These allegations were denied and the appellant claimed possession on independent title along with the adjacent land from 1115 ME. He pleaded adverse possession also. The suit property is included in R.S. No. 48/1, which belongs to the respondents, and the property claimed by the appellant is R.S. No. 45/1. The case of the appellant is that he possessed the suit property along with R.S. No. 45/1 believing it to be portion of R.S. No. 45/1 and not knowing that it is part of R.S. No. 48/1 belonging to the respondents.

3. Accepting the contentions of the appellant, the trial court dismissed the suit as the title of the respondents is lost by his adverse possession from 1115 ME. The appellate court also rejected the plea of permissive occupation put forward by the first respondent and found that the Appellant was in possession from 1115 ME under independent claim of right But the appeal was allowed and the suit was decreed for recovery of possession on the strength of title for the sole reason that the appellant''s possession without the knowledge of ownership of the respondents cannot be hostile possession capable of acquiring prescriptive title. The factual conclusions of the two courts below and in the previous decision regarding possession on independent right have become final and cannot be re-opened. There was some observation in the decision in O.S. No. 323 of 1974 that though the possession of the appellant was on independent claim and not permissive, it will not be adverse possession, Respondents rightly conceded that these observations will not be res judicata because that was only a suit for injunction in which title or adverse possession were not in issue and it was not necessary to consider those questions. Therefore, the only question to be considered is whether the title of the respondents is lost by adverse possession or not.

4. My attention was drawn to various decisions. The decision in Achuthan Unni v. Vally (1962 K.L.T 1010), rendered under Articles 142 and 144 of the old Limitation Act, only said that in a suit for eviction alleging trespass over a narrow strip of land on the boundary there is the presumption that the admitted title and possession over a survey sub-division extend to the whole of the sub-division and possession of every inch of land need not be proved and it is for the defendant to prove adverse possession. We are not at that question. Further, that decision was reversed in appeal in Pennamma Vally v. Achuthan Unni (1966 K.L.T 86) holding that even in respect of property close to the boundary when there is allegation of possession and dispossession, the burden is on the plaintiff to prove possession within 12 years. Under Article 65 of the new Limitation Act, those questions may not arise. When the suit is on title and when the title of the plaintiff is found, it is for the defendant, who pleads adverse possession, to establish the same because the period of limitation for recovery of possession on the strength of title is from the date on which the possession of the defendant became adverse to the plaintiff. The burden is entirely on the defendant and unless he establishes adverse possession, the plaintiff is entitled to get a decree.

6. Adverse possession is hostile possession under a claim or colour of title, actual, open, uninterrupted, notorious, exclusive and continuous. It must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. It ripens into title if it has continued for the statutory period. The animus to hold possession for acquiring title should be present and the invasion of plaintiff''s right must be such as to give him a cause of action. The possession must be overt without concealment, though necessarily not to the notice of the real owner. It is enough if there is sufficient publicity so as to attract the notice of the plaintiff, though he fails to take notice of the same. The openness of the possession must be such that the person against whom time is running ought, if he only cares to exercise due diligence, to be aware as to what is happening. Due vigilance is not negligence of the true owner. If he keeps his eyes shut against open invasion into his proprietary rights, he does so at his risk. Though some decisions said that there cannot be adverse possession if the defendant himself did not know that he was occupying somebody else''s land, that does not appear to be the correct law. What is required to have hostile animus is not the knowledge that any particular individual is the owner and he is holding against him, but the animus to hold the property openly under the claim or colour of title in derogation of the title of all others, whoever they may be, known or unknown. Possession as full owner implies denial of title of all others. That is why adverse possession is said to be hostile possession under the claim or colour of title. Possession under a wrong or mistaken impression that the defendant himself is the owner and nobody else in the world has ownership is also adverse possession, even if the fact that somebody else is the owner or his identity is not known. The possessor, who claims independent title, need not be aware that someone else is owner and even if he is aware that he is not the true owner, he is not expected to make an enquiry as to who the true owner is. It is for the true owner to keep his eyes open to protect his right against open invasions.

6. In AIR 1947 19 (Privy Council) , a widow entered into possession of the husband''s estate for more than twelve years thinking that the husband is no more. She had only a limited estate. The husband was actually not dead. He came back. The Privy Council, only said that possession must be adverse to a living person and the'' widow cannot claim adverse possession. Further, her possession cannot be adverse to the reversioners, whose right is only to get possession after the death of the owner and the widow. That decision cannot, in any way, help the respondents.

7. AIR 1935 53 (Privy Council) only said that a person, who bases 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. There cannot be any dispute because hostile possession against the whole world could be hostile possession against the true owner also. Annam v. Velayudhan (1985 KLT SN 51 Case No. 74) did not hold anything more. It said that express or implied denial of title of the true owner is sufficient. Denial of title of all implies denial of title of the true owner also. Hostile animus will have to be ascertained from the facts and circumstances of each case. Muthiah Pillai and others v. Vedambal and others (AIR 1986 Mad 106) also did not say anything more. In none of these decisions, it is said that in order to constitute adverse possession, the person, who holds the property, over and above holding it adversely to all, must establish that he was holding adversely to a particular individual knowing that he is the true owner and the defendant is not the owner. What is required is express or implied denial of the rights of all others and assertion of open title in himself.

8. In Musammat Sitabai v. Jumo (157 Indian Cases 283), AIR 1929 625 (Lahore) , AIR 1938 324 (Lahore) and Kidar Nath and others v. Ram Chand and others ( AIR 1972 Pu 335), the law laid down was that there cannot be adverse possession if the defendant himself did not know that he was occupying somebody else''s land. But, with due respect, I am of opinion that it is not the correct exposition of law of adverse possession. The ingredient of the knowledge of the possessor of want of title in him and title with any particular individual cannot be imported in any other decision.

9. When a grantee, in taking possession under his deed, goes unintentionally and by mistake beyond his proper boundaries, and enters upon and actually occupies and improves lands not included in the deed, claiming and supposing it to be his, his occupation is to be deemed adverse within the meaning of the statute of limitation. If continued for the required length of time, it will bar the right of the true owner (Wood, Limitation of Actions - Volume 2, page 1276). In Allah Dad and others v. Fazal Dad and others (46 Indian Cases 964), the law laid down was that the criterion of adverse possession is, whether a person possesses land, claiming it as his own; if he does, he must be held to be in adverse possession. He may be mistaken in his rights or he may be conscious that he is an usurper, but his possession is for himself and against all others. In Mg. Po Lon v. Mg. Ba On and another (AIR 1925 Ran 111), Secy. of State Vs. Dist. Board of Tanjore, and AIR 1937 811 (Lahore) also, the same law was laid down. These decisions and the opinions were approved in Raman Nair Madhavan Nair v. Kuttiyamma Karthiyaniamma (1954 KLT 195), which distinguished AIR 1947 19 (Privy Council) . Devaki Amma v. Meenakshy Amma (1989 (2)K.L.T. 130) followed these decisions. I am in respectful agreement with those views. Evidently, the appellant was in adverse possession for more than 40 or 50 years. His possession was as owner in derogation of the title of all. It satisfies the requirements of adverse possession. The District Judge went wrong in holding otherwise.

Second appeal is allowed. The appellate decree and judgment are set aside and those of the Subordinate Judge are restored. Parties will bear their costs in this court.