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Asha Dei Vs. Naran Sethi and Ors. - (High Court of Orissa) (01 Feb 2018)

A party claiming adverse possession must prove that, his possession is peaceful, open and continuous



In instant case, Defendant No. 2 is the Appellant against a confirming judgment. Plaintiff-respondent No. 3 instituted the suit for declaration of title, recovery of possession and permanent injunction. The case of the Plaintiff was that his mother, defendant No. 4 purchased the suit land. She constructed a thatched house over the same. Her name was recorded in the Municipal record. She executed a gift deed in his favour on 9th January, 1980 and delivered possession. Defendants 1 to 3, who are brother-in-law, sister and nephew of the Plaintiff, stayed in a portion of the suit house. As Defendant No. 1 claimed title over the same before the Settlement Authority, he asked them to vacate the suit house. With this factual scenario, he instituted the suit.

The trial Court held, that the Plaintiff had successfully established his right and title over the suit land. Defendant No. 1 had failed to prove that the suit land was purchased benami in the name of defendant No. 4. Suit was not barred by time. Defendant No. 1 had failed to establish his title by way of adverse possession. Held so, it dismissed the suit. The unsuccessful Defendants 1 to 3 filed appeal before the learned District Judge, which was eventually dismissed.

The Appellant submitted that, Defendant No. 1 had paid the entire consideration amount for purchase of the suit land. Defendant No. 1 is the owner of the suit house. He further submitted that, Defendant Nos. 1 to 3 reside over a portion of the suit house peacefully, continuously and with the hostile animus to the Plaintiff for more than statutory period and, as such, have perfected title by way of adverse possession.

Adverse possession is not a pure question of law but a blended one of fact and law. In Karnataka Board of Wakf vs. Govt. of India and others, the apex Court observed that, "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.

The Court further observed that 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.

On a threadbare analysis of the evidence on record and pleadings, the learned trial court disbelieved the plea of defendants that defendant No. 1 had paid the consideration amount. Defendant No. 1 failed to substantiate his plea of benami. Defendant No. 4 is the owner of the suit land. The suit land had been gifted by defendant No. 4 to the plaintiff. Possession of the same was delivered to him. The suit land had been recorded in the name of the plaintiff in Settlement R.O.R.. Thus, the plaintiff has title over the suit land.

Mere possession of the suit land for long time is not sufficient to hold that, Defendants have perfected title by way of adverse possession, unless the classical requirements of adverse possession “nec vi, nec clam, nec precario” are pleaded and proved. There is no pleading as to when the defendants entered into the suit house. Both the courts below concurrently held that possession of defendants 1 to 3 over the suit land is permissive. There is no perversity in the findings.

The matter may be examined from another angle. The Defendants pleaded that defendant No. 1 had purchased the suit property in the name of defendant No. 4. It was benami transaction. Alternatively, Defendants 1 to 3 pleaded that, they have perfected title by way of adverse of possession. The plea is mutually destructive. Claim of title to the property and adverse possession are in terms contradictory. Appeal dismissed.

Relevant : Karnataka Board of Wakf vs. Govt. of India and others, MANU/SC/0377/2004: (2004) 10 SCC 779


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