Adverse Possession Plea Can Be Sustained Only When Possession Is In Denial Of True Owners' Title: SC [Read Judgment]

The Supreme Court has reiterated the principles of acquisition of title by adverse possession.

The bench comprising of Justice Abhay Manohar Sapre and Justice Dinesh Maheshwari observed that mere continuous possession howsoever long it may have been qua its true owner is not enough to sustain the plea of adverse possession unless it is further proved that such possession was open, hostile, exclusive and with the assertion of ownership right over the property to the knowledge of its true owner.

In Mallikarjunaiah vs. Nanjaiah, a suit was filed by the plaintiff seeking declaration of his title in relation to some properties in possession of defendants. The Trial Court dismissed the suit holding that the defendants had perfected their title by adverse possession. As the first appeal and the second appeal before the High Court, went against the plaintiff, he approached the Apex Court.

The court applied the principles laid down in Chatti Konati Rao & Ors.Vs. Palle Venkata Subba Rao to the facts of the case and made following observations:

-Defendants admitted the ownership of the plaintiff over the entire land including the suit land by setting up the plea of adverse possession over it

-The burden to prove the adverse possession was on the defendants because it was they who had set up this plea and defendants failed to discharge this burden

-There was no element of either adversity or/and hostility between two co-owners/brothers because in a dispute of this nature where both the parties are related to each other, the possession of one is regarded to be the possession of other unless the facts show otherwise;

-Defendants failed to adduce any evidence to prove that they were asserting their right of ownership over the entire land or the suit land or its part openly and to the knowledge of the plaintiff continuously for a period of more than 12 years;

-Both the parties to the suit did not know as to how much land was in the exclusive possession of the plaintiff and how much land was in possession of the defendants. It was only when the plaintiff got the suit land measured through the revenue department in the year 1983, he came to know that some portion of the land, which had fallen to his share was in possession of the defendants.

In Chatti Konati Rao, the Supreme Court had succintently explained the principle of adverse possession as follows:

"Mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The possession must be open and hostile enough so that it is known by the parties interested in the property. The plaintiff is bound to prove his title as also possession within twelve years and once the plaintiff proves his title, the burden shifts on the defendant to establish that he has perfected his title by adverse possession. Claim by adverse possession has two basic elements i.e. the possession of the defendant should be adverse to the plaintiff and the defendant must continue to remain in possession for a period of twelve years thereafter."

Allowing the appeal, the bench held that the Courts below were not justified in declaring the defendants to be the owner of the encroached portion of the suit land by virtue of adverse possession.

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