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Gauhati High Court · body

1985 DIGILAW 31 (GAU)

Prayag Sah Teli v. Mahangu Prasad Sah and Another

1985-07-23

K.N.SAIKIA

body1985
This plaintiff's second appeal is from the judgment and de­cree of the District Judge, Manipur, reversing those of the Munsiff. The appellant as plaintiff instituted O. S. No. 13 of 1969, praying inter alia, for a decree of declaration of title in respect of the suit land shown in schedule 'C' to the plaint, stating that the plaintiff was the owner of the land covered by patta No. 100/82 (old) i.e. T. covering plot No. 2/94(old) corresponding to new plot No. 10 as given in schedule 'A' to the plaint; and the defendants were the owners of the land under patta No. 100/47 (old) i.e. T. covering plot No, 2/55 (old) corresponding to new plot No. 8 as shown in schedule 'B' to the plaint. The plaintiff's land was adjacent to the south of the defendants' land and he possessed his land since 10.3.54 after he purchased it from one Abdul Hamid; since deceased, under a registered sale deed. In the year, 1964. a Demarcation Case being Misc. Case No. 461 of 1964 for demarcating the boundaries between the two-plots was decided by the A. S. & S. O. to the effect that the suit land as shown in schedule 'C' to the plaint fell within the defendants plot. The plaintiff's revision petition against the said order was also dismissed. Thus, as decided in the Demarcation Case, a part of the land which the plaintiff continued to occupy since his purchase has been declared to have fallen outside the bo­undary of the land purchased by him ('A' schedule land) and withi0 the boundary of the defendants' land ('B' schedule land) and this portion is the 'C' schedule land and is the suit land. 2. The defendants contested the suit contending that the suit land had never been a part of the plaintiffs land but had been apart of the defendant's land and only a few years back the plaintiff encroached upon it and as such the plaintiff's suit was barred by limitation, acquiescence, and waiver. 3. On the pleadings the following issues were settled : "i. Whether the plaintiff purchased the land under patta No. 100/82 (old) covered by plot No. 2/95 (old) corres­ponding to new plot No. 10/ from Abdul Hamid under a registered deed of sale dated 10.3. 54 at Rs.500/- ? ii. 3. On the pleadings the following issues were settled : "i. Whether the plaintiff purchased the land under patta No. 100/82 (old) covered by plot No. 2/95 (old) corres­ponding to new plot No. 10/ from Abdul Hamid under a registered deed of sale dated 10.3. 54 at Rs.500/- ? ii. Whether the plaintiff has right and title over the land under patta No. HO/82 (old) and under plot No. 2/94 t ii. (A). Whether the suit land described in the plaint sche­dule 'C' falls within the land under patta No. 100/82 covered by plot No. 2/94 (old) ? iii. Whether the plaintiff has perfected his title over the land marked COX in schedule 'C' by virtue of his possession of it continuously, peaceably, openly and adversely for more than 12 years as his own as alleged by the plaintiff ? iv. Whether the boundary description of the defendants land is incorrect ? v. Is the suit barred by waiver and acquiescence ? vi. Is there any cause of action of the suit ? vii. Is the suit barred by law of limitation ? viii. Is the plaintiff entitled to the reliefs as claimed ? 4. The learned trial Court held that the plaintiff purchased the land under patta No. 100/82 (old) covering plot No. 2/94 (old) corresponding to plot No. 10 from Abdul Hamid under sale deed Ext. A/1; that the plaintiff had right and title over the aforesaid land; that the suit land (schedule 'C' land) did not fall within the aforesaid land purchased by the plaintiff; that the plaintiff bad been possessing the suit land continuously as his own for the last 15/16 years by constructing out-house though the suit land lay within the Ingkhol of the defendants; that the plaintiff had been possessing the suit land under the impression that it formed a part and parcel of the land purcha­sed by him from Abdul Hamid for the last 15/16 years; that the plaintiff perfected his title over the suit land by adverse possession; and that the suit land fell within the Ingkhol of the defendants and boundary given by the defendants was not correct. The suit, therefore, accordingly decreed declaring the plaintiff's right and title over the suit land. 5. The suit, therefore, accordingly decreed declaring the plaintiff's right and title over the suit land. 5. The defendants having appealed, the learned District Judge, Manipur at Imphal, formulated two questions for disposal namely, whether the suit land formed part of the plaintiff's land or the defendants land; and if it was found to be within the defendants' land whether the plaintiff had acquired title over it by adverse possession ? On the first question the finding of the trial Court was affirmed, namely, that the suit land did not form part of the land purchased by the plaintiff. On the second question also as regards possession it agreed with the trial Court that the plaintiff had been in possession of the suit land since about the year 1954 in which he purchased his land and the trial Courts finding to that effect was affirmed. But, on the question whether the plaintiff's possession was adverse to the defendants, the lower appellate Court observed that the plaintiff, in his pleading nowhere asserted that the suit land belonged to the defendants and that he had been in possession thereof as part of his land without knowing the actual extent of his land. But, he claimed possession of the suit land for more than the statutory period of limitation without knowing whe­ther the land purchased by him covered the suit land. The learned appellate Court dismissed the following two views on the subject possession of wrong property by mistake' as discussed in Krishna Swamps Book on law of Adverse Possession at page 161 : "According to the first view such possession lacks an essential requisite namely an intention to claim adversely which is an indispensable ingredient to constitute dissension. The learned appellate Court dismissed the following two views on the subject possession of wrong property by mistake' as discussed in Krishna Swamps Book on law of Adverse Possession at page 161 : "According to the first view such possession lacks an essential requisite namely an intention to claim adversely which is an indispensable ingredient to constitute dissension. According to the second view if a person under a mistake as to the property, enters and occupies the property not embraced in his title, claiming it as his own for requisite statutory period, he thereby becomes vested to the title thereto by possession, although his entry or possession was founded upon a mistake and although the possession lacks an essential requisites, namely an intention to claim adver­sely, it is still possession in his own right and on his own behalf and such possession is not under the true owner but under a claim of right to possession exclusively, resul­ting in the exclusion of the true owner." Accepting the first view the learned appellate Court disa­greed with the learned Munsiff who accepted the second view, as according to the appellate Court the intention to claim the suit land adversely was wanting and as such the plaintiff could not acquire title to the property by adverse possession, as in­tention, could at best, be attributed to the plaintiff only after the demarcation in Revision Case No. 4 of 1964 and the suit having been instituted in 1969, the period fell short of the sta­tutory period of limitation. The Court further held that the plaintiff could not state the extent of encroachment made by him so as to establish his title over the suit land by adverse possession. The appeal was accordingly allowed and the plain­tiff's suit dismissed. Hence, this second appeal. 6. Mr. Th. The Court further held that the plaintiff could not state the extent of encroachment made by him so as to establish his title over the suit land by adverse possession. The appeal was accordingly allowed and the plain­tiff's suit dismissed. Hence, this second appeal. 6. Mr. Th. Priynanada Singh, learned counsel for the appellant submits : Learned lower appellate Court erred in law in holding that the plaintiff did not acquire right over the suit land by adverse possession in the face of the fact that both the Courts below concurrently held that the plaintiff was in possession of the suit land as his own since 15/16 years back; the learned lower appellate Court erred on facts in doubting the extent of encroachment in face of the fact that the dema­rcation case clearly demarcated the boundary and that the suit land was stated to have been included within the defendants' land. 7. Mr. N. Surjamani Singh, the learned counsel for the respondents submits : The learned lower appellate Court rightly held that the plaintiff did not acquire right by adverse possession as the requisite intention on the part of the plaintiff to poss­ession of the suit land exclusively and adversely was not there and the plaintiff did not claim possession adverse to the defe­ndants, and the defendants also did not know that his suit land was adversely possessed by the plaintiff. The lower appe­llate Court was correct in holding that Commissioner's report showed the encroachment portion as 9 links on the east, while the plaintiff, in his sketch map, showed eastern line of encro­achment as 18 links and the plaintiff failed to establish his adverse possession over the entire length of the suit land. 8. Two precise questions have, therefore, to be decided in this second appeal. Was the lower appellate Court correct in holding that the plaintiff, who occupied the suit land for the last 15/16 years under the impression that it was as his own land did not acquire right over it by adverse possession ? Was the lower appellate Court correct in holding that the plain­tiff failed to prove the extent of his encroachment over the defendants' land ? 9. Was the lower appellate Court correct in holding that the plain­tiff failed to prove the extent of his encroachment over the defendants' land ? 9. Taking the second question first, it is seen that the learned lower appellate Court in paragraph 7 of his judgment concluded that the plaintiff had been in possession of the suit land since about the year 1954 in which he purchased the land and that the finding of the learned Munsiff to the same effect is quite sound and reasonable and as such should be left und­isturbed. Suit land undoubtedly referred to the schedule land. Both the Courts having thus concurred, the finding of the lower appellate Court given in paragraph 10 of the judgment as regards doubting the extent is clearly inconsistent. There was no dispute about the bonndary of the suit land. The lower appellate Court itself in paragraph 9 having upheld Munsiff's finding, the doubt expressed at the later part of the judgment is taken to be incongruous. Bit, it cannot affect the concurrent finding about the suit land having been in poss­ession of the plaintiff for the last 15/16 years. The second question is decided accordingly. 10. As regards the first question, the learned lower appe­llate Court emphasised that although the plaintiff entered into possession he lacks an essential requisite, namely, an intention to claim adversely which is an indispensable ingredient to cons­titute dissension. In other words, the plaintiff though came into possession of the suit land along with his 'A' schedule land purchased by him, he believed both 'A' schedule land and 'C' schedule land to be his own land and had no intention to claim it adversely to the defendants. In other words, the ownership of the defendants over the suit land was not present in his mind and hence his possession of the suit land could not have been adverse. The question, therefore, arises as to what is the exact require­ment of possessing adversely. If 'A' possessed some land belong­ing to 'B' not knowing that it belonged to 'B' but believing it to have belonged to 'A' could it be adverse possession as against 'B' ? Would it be necessary for 'A' to know that the land be­longed to 'B' or for 'B' to know that the land so possessed belo­nged to 'B' and that 'A' was possessing it adversely to 'B'. 11. Would it be necessary for 'A' to know that the land be­longed to 'B' or for 'B' to know that the land so possessed belo­nged to 'B' and that 'A' was possessing it adversely to 'B'. 11. In Bason Kumar Roy vs. Secretary of State, AIR 1917 P. C. 18, it was ruled that in order to acquire title by adverse possession, the possession mast not only be open and exclusive, but it must also be show a to have been adverse for the full statutory period, i.e. it must be continuous for the full period without any break or without interruption. If the continuity is broken for whatsoever cause, no title can be acquired under the statute. In Secretary of State vs. Debendralal, AIR 1934 P. C. 23, it was ruled that the ordinary classical requirement of adver­se possession is that it should be nee vi nee clam nee precarious, the possession required must be adequate in continuity, in publi­city and extent to show that it is possession adverse to the compe­titor. To be adverse to the competitor is it necessary that the possessor should address anything to the real owner adverse to whom he has been possessing ? Is it necessary on tie part of the owner to know that his land is being possessed adversely ? These do not appear to be requirements of adverse possession. In Satyaniranjan vs. Ramlal, AIR 1925 P. C. 42, it was held that a person coming in under a title which he knows to be defective, or even a trespasser, is not by reason of that knowledge, dep­rived of the benefit of the laws of limitation. It is also imma­terial for the operation of the statute of limitation whether the owner is aware of his rights or the infringement of his rights, provided that the infringing acts are overt and such that the owner should be taken to have knowledge of them. In Nageswar Bux vs. Bengal Coal Co., AIR 1931 P. C. 1B6, it was held that where a person without any colour of right wrongfully takes possession as a trespasser of the property of another, any title which he may acquire by adverse possession will be strictly limi­ted to what he actually possessed. In Nageswar Bux vs. Bengal Coal Co., AIR 1931 P. C. 1B6, it was held that where a person without any colour of right wrongfully takes possession as a trespasser of the property of another, any title which he may acquire by adverse possession will be strictly limi­ted to what he actually possessed. In Jagatjit Singh vs. Pratap Bahadur Singh, AIR 1942 P. C. 47, it was ruled that adverse possession against an existing title is to be actual and not merely constructive and adverse possession must rest on de facto use and occupation or enjoyment. It was reiterated in Kuthali Mulhavar vs. Paringati Kumharankutty, AIR 1937 P.C. 69, that adverse posse­ssion must have all the qualities of adequacy, continuity and exclusiveness necessary to dispute the title of the true owner. As was reiterated in AIR 1957 SC 314 , for adverse possession, it is sufficient that the possession is overt and without any attempt at, so that the person against whom time is running can, If he has exercised due vigilance, be aware of what is happening, thus, if the right of the State has been openly usurped, it cannot be heard to plead that the fact was not brought to its notice, but it is not necessary that in order to establish adverse possession, the proof of acts of possession should cover every moment of the requisite period though the possession, need not be proved to have continued every quar­ter, month or year, that ordinary possession will be sufficient ad victim causer albeit, if the distance be not great. Thus, adverse possession must have all the qualities of adequacy, con­tinuity and exclusiveness necessary to dispute the title of the true owner. In Bibhabati Debt vs. Ramendra Narayan, AIR 1947 P.C. 19, it was ruled that possession must be adverse to a living person. Adverse possession can be asserted only against a person living, and who is capable of asserting his rights in respect of the property. 12. In the instant case, the plaintiff purchased his land as far back as on 10.3.54. It was open for the defendants at that time to have obtained a demarcation of the boundary, which the defendants did not do. Demarcation was done in the year 1964, but the plaintiff continued to possess the land even before the demarcation and continued to possess till the date of the suit, also thereafter. It was open for the defendants at that time to have obtained a demarcation of the boundary, which the defendants did not do. Demarcation was done in the year 1964, but the plaintiff continued to possess the land even before the demarcation and continued to possess till the date of the suit, also thereafter. His possession was never interru­pted. It was not necessary for the plaintiff to have addressed anything to the defendants provided his possession satisfied the requ­irements of being nee clam nee precarious, when it did. The fact that he did not so possess with the knowledge that he was doing adversely to the defendants would be immaterial. That was not necessary. It was also not necessary for the defen­dants to have known that the plaintiff was doing it adversely to him. He could have known provided he was vigilant, and in the instant case he was not. Adverse possession is a method of acquisition of title to land by possessing if for a statutory period under certain conditions. It is the statutory method of acquiring title to land by limitation. Under Section 27 of the Indian Limitation Act, the determination of the period thereby limited to any person for instituting a suit for possession of any property, his right to such property, shall be extinguished and the period begins to run from the point of time when possession becomes adverse. Adverse possession depends on in­tention of the occupant to claim and hold the land in oppo­sition to the whole world, and also embodies the idea that the owner or persons interested in the property have knowledge of the assertion of ownership by the occupant. Adverse possession consists of actual possession with intent to hold solely by the possessor to the exclusion of all others and is denoted by the exercise of the act of dominion over the land including making of ordinary use and taking of ordinary usufructs of which the land is susceptible in its present state. Nothing need be addressed to the owner provided the above conditions are fulfilled. In the instant case, the plaintiff constructed his out-house over this portion and put it to the ordinary use as his own land. The requirements are, therefore, satisfied. In Kshitish Chandra Base vs. Commissioner of Ranchi, AIR 1981 SC707, it was held that to prove adverse possession must be open and without any attempt at concealment. In the instant case, the plaintiff constructed his out-house over this portion and put it to the ordinary use as his own land. The requirements are, therefore, satisfied. In Kshitish Chandra Base vs. Commissioner of Ranchi, AIR 1981 SC707, it was held that to prove adverse possession must be open and without any attempt at concealment. It would not however be necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner. In Nair Service Society Ltd. vs. K. C. Alexander and oth­ers, AIR 1968 SC 1165 , it was held that a person in possession of land in assumed character of owner exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world, but the rightful owner. And if the rightful owner does not come forward and assert his title within limita­tion, his right is for ever extinguished and the possessor ow­ner acquires absolute title. 13. In Maqbul Hussain vs. Fazal All. 66 I. C. 461, it was held that where a person takes possession of land and through inadvertence or ignorance as to the true line, takes and holds possession of land not covered by his deed with no intention of claiming or occupying beyond his actual boundaries, such possession will not support a plea of the statute against the real owner, because in such, the possession lacks an essen­tial requisite, namely, an intention to claim adversely, which is an indispensable ingredient to constitute a dissension. In Inder Singh vs. Bakhshi Sha, AIR 1921 Lahore 175, it was held that possession by a defendant whose title is admitted by the pla­intiff under a mistaken impression cannot be adverse to the plaintiff. The facts of these two cases relied on by Mr. Surajmani Singh are distinguishable. In Magbul Hussain (Supra), the person who took possession had no intention of claiming or occupying beyond his actual boundaries. In the instant case, there is no evidence to show that he did not intend to occupy the entire suit land as his own or that he had the intention to give up a part or whole of if it fell beyond his boundary. In Inder Singh (Supra) the defendant's title was admitted by the plaintiff. But, in the instant case the plaintiff, while occupying the suit land, did not admit the title of the defendants. In Inder Singh (Supra) the defendant's title was admitted by the plaintiff. But, in the instant case the plaintiff, while occupying the suit land, did not admit the title of the defendants. In Mushan Mu vs. Somzsund-aram, AIR 1925 Rangoon 111, the possession of the land taken by an adjoining land-owner under a mistake on the part of both parties to the true boundary, was held to have been adverse to the plaintiff. It could be held relying on Purushtam Krishnaji vs. Segaji, 2? Bombay 87, Mookhind vs. Amarnath, 39 I. C. and Allah Dad, vs. Fazal Dad, 461. C. 964. that if a person under a mistake as to the boundaries enters and occupies land not embra­ced in his title claiming it as his own for the requisite statutory period, he thereby becomes invested with the title thereto by possession although his entry and possession may have been founded upon a mistake. Where 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 supporting them to be his, this occupation is to be deemed adverse, and if conti­nued for requisite length of time, bars the right of the true owner. The fact that the party has been in possession under an honest mistake and without any desire of depriving ano­ther of property to which the latter is lawfully entitled does not prevent time from running. Possession is not the loss adverse be­cause the person possessed intentionally though innocently. The rule is that entry and possession under a claim of right and to use and enjoy as his own, is a dissension to the owner thereto. 14. Mr. Surjamani Singh refers to Ejas Ali vs. Spl. Mana­ger, Court of Ward, AIR 1935 P. C. 53, where it has been held that a person who bases his title on adverse possession must show that his possession was hostile to the real owner and amo­unted to a denial of his title to the property claimed. There is no doubt that it is a settled law that hostility to the real owner need not be by separate pronouncement addressed to the read owner. If a person possesses the land asserting his title himself openly that itself is hostile to the real owner and is derogation to the real owner's title. There is no doubt that it is a settled law that hostility to the real owner need not be by separate pronouncement addressed to the read owner. If a person possesses the land asserting his title himself openly that itself is hostile to the real owner and is derogation to the real owner's title. Counsel also relies on AIR 1912 A.P. 132, A. Venkateswaralu vs. M. M. Mosque, where it has been held that it is one of the fundamental requirements of prescription of title by adverse possession that the adverse possessor should assert a title in himself openly and in derogation of the title of true owner for a continuous period of 12 years. As it has already been said that the derogation need not be addressed to the true owner, the very fact that one is asserting his title in himself necessarily means that such assertion is in derogation of the title of the true owner. Mr. Surjamani Singh also relies Secretary of State vs. District Board, Tanjore, AIR 1930 Madras 679, which. however, does not help his case. In that case it was held that enjoyment of fishery by exclusive right under mistaken notion of right would be adverse to the real owner of the property. Simi­larly, in Aboobucker vs. Sahila Khatoon, AIR 1949 Sindh 12, it was held that possession obtained under mistake of law of the persons entitled could be adverse to them. 15. Applying the law as enunciated above to the facts of this case it has to be held that the plaintiff's possession of the suit land was adverse to the defendants and that having conti­nued for more than the statutory period, the defendants' right over the suit land extinguished and the corresponding right was acquired by the plaintiff. The decree of the trial Court has, therefore, to be restored and that of the lower appellate Court has to be set aside, which I hereby do. The appeal is accordingly allowed. However, under the facts and circumstances of the case. there will be no order as to costs.