One Can't Claim Title By Inheritance & Title By Adverse Possession Simultaneously: Jharkhand High Court

The pleas regarding claiming the title on inheritance and title by adverse possession are mutually inconsistent, Justice Gautam Kumar Chowdhary added.

The observation was made in a case pertaining to a land dispute over a piece of Raiyati land, where defendants claimed the land both by inheritance and by adverse possession. The plaintiffs on the other hand claimed that they were the true owners of the land considering they have entered into several transactions pertaining to the land in question.

The Court opined that adverse possession is essentially hostile possession which must imply a denial of true owner's title. The plea must also state the point in time from which possession became adverse, as a specific averment in the pleading.

An adverse possession plea cannot be sustained in the absence of animus possidendi (person's intention to possess), it added.

Background

The broad facts of the case are regarding a disputed piece of raiyati land for a part of which the defendant's father was appointed as Dar-riyati, who had apparently surrendered the land back to the plaintiffs after conducting a land survey and after a duly executing a Bajidawa deed in favour of plaintiffs.

The case of the defendants was that their father was paying rent on several plots of parts of this raiyati land and still had possession and that the defendant had been in continuous possession of this land. It was further claimed that after his father's death, the defendant had inherited this land, and that Dar-raiyats could not be ejected by Raiyats (plaintiffs) and Dar-raiyat's interest was inheritable and transferrable as per the law and customs prevailing in the village.

Thus, according to the defendants, the plaintiffs had no possession over any plot of the disputed land.

Per Contra, the claim of the plaintiffs was that the defendant's father was paying rent on a part of the plot of land in dispute but Dar-riyati interest was neither inheritable nor transferable and thus, once the defendant's father, who was the Dar-raiyat, died, his heirs (the defendant) did not acquire any interest or right in the disputed land. Both the trial court and the appellate court had given the judgment in favour of the defendant.

Findings

The High Court had framed several questions of law, first and foremost being whether the interest in Riyati land is inheritable or not.

While looking at the judgments in Rampratap Marwari v. Lachman Mistry, Juhan Oraon v. Sitaram Rao, Sandhya Rani Devi v. Gour Chandra panda, Ibrahim Mian v. Munsaf Khan and Debu Napit & Ors. v. State of Jharkhand & Ors., the court observed that while a raiyat (plaintiffs) had a right of occupancy and the land was heritable like any other immovable property, under-raiyat or Dar- raiyat (defendant) did not have a hereditary or transferable right unless made so by the prevalence of a custom.

The Court further noted that since the plaintiffs had pleaded that there was no such custom in their village of an heir of under-raiyat having a right to inherit the land after the previous under-raiyat's death, it was the defendant who had to prove that this assertion was incorrect since it was the defendant who stood to lose if it was not proved.

The Court cited a fundamental difference between S.101 and 102 of the Evidence Act, where the burden of proof in the former never shifts and under the latter, the burden of proof constantly shifts during the course of a trial; and because the defendant had failed to prove his averment that the dar-riayti interest was heritable and transferable, and the position of law is crystal clear that dar-riyati interest is not heritable or transferable unless allowed by the local custom, the court conceded with the plaintiff's argument on this ground.

The next important question of law Court had to look into whether both the trial and appellate courts were correct in holding that the suit was barred by limitation and adverse possession.

After perusing S.54 of Transfer of Property Act, 1882 and referring to Lachhman Dass v. Ram Law, the court noted that with previous dar-raiyat's death (defendant's father), the title over the suit land also got extinguished and was transferred back to the original raiyat (the plaintiffs) and thus, the suit for adverse possession does not stand.

Court also observed that "permissive possession cannot be converted to adverse possession unless the person in possession asserted hostile title for a period of 12 years or more."

Stating that the defendant's pleadings were bereft of the fundamental ingredient of adverse possession and that because the defendant unsuccessfully claimed the title on the basis of inheritance from original dar-raiyat, he could not prescribe adverse possession against the plaintiff, the court found that suit was not barred by adverse possession and that both trial court and appellate court had erred in their findings when they held otherwise.

The appeal succeeded and there was no order as to costs.