'Adverse Possession' Of Property vs 'Permissive Possession': Karnataka High Court Explains

Dr. Justice HB Prabhakara Sastry said, "Article 65 of the Limitation Act presupposes that the limitation starts only if the defendants prove the factum of adverse possession affirmatively from a particular time."

It added that, "The important point to be noticed is the time from which the period begins to run is not from the date of his alleged possession of the plaintiff's property by the defendant, but, the time begins to run when the possession of the defendant becomes adverse to the plaintiff."

The Court proceeded to explain what is 'permissive possession' and the pre-requisite for it to become 'adverse possession'.

It observed,

"Every possession is not an adverse possession...mere possession cannot be deemed to be adverse possession merely on the basis of denial of another's title over property for that would be violative of basic rights of actual owner."

"Only if the defendants' possession becomes adverse to the interest of the real owner and the real owner fails to file the suit for possession within twelve years, as prescribed under Article 65 of the Limitation Act, from the point of time the possession by the defendants becomes adverse to the plaintiffs, the real owner loses his title over the property," it said.

"Apart from the defendants raising the plea of adverse possession and admitting the ownership of the true owner of relevant property to the knowledge of the said owner, they should also prove that their possession is an actual, open, exclusive, hostile and continued over statutory period by wrongful dispossession of rightful owner. Thus, animus possidendi is essential."

Case Background:

Late Muthana, father of the appellant Chepudira Madaiah, filed a suit before the trial court in 1983, for possession of encroached land measuring 35 cents and 10 cents, from late Bopaiah. The suit instituted by Muthanna came to be decreed on 22.02.1989, wherein it was held that the plaintiff-Muthanna was entitled for the possession of the land.

Bopaiah challenged the judgement and at his instance a Commissioner was appointed for survey of the lands. In the survey, it was found that said Bopaiah had encroached about 20 cents of land and 10 cents of land in the respective properties and Muthanna had encroached 2.25 acres of land and 50 cents in the respective properties.

The Civil Judge, after considering these aspects, held that although the plaintiffs have encroached on only 30 cents of land, the defendants have encroached 2.25 acres of land. Since both parties were guilty of encroachment, its judgement dated 08.12.1994, allowed the appeal (filed by Bopaiah).

In the meantime, the father of the plaintiffs Bopaiah and father of the defendants Muthanna had died and thus the legal heirs were added as parties. Following this, legal heirs of Muthanna filed a Regular Second Appeal before the High Court. The said appeal came to be allowed by this court by its judgement dated 11.08.1998, however, it also observed that the defendants therein were entitled to file a suit in the competent Court of law to evict the plaintiffs from the encroachment of the suit schedule properties and recover possession of the same.

Accordingly, the suit was filed before the trial court for recovery of the alleged encroached land by legal heirs of Bopaiah. The Appellant Chepudira Madaiah, (Son of late Muthanna) had approached the court challenging the judgement and decree dated 30.09.2005 passed by the Civil court at Virajpet. The court by its order directed that the appellant had encroached upon the land of defendants Mallengada Chengappa and others (legal heirs of Late Bopaiah).

Appellant's submissions:

Advocate T.A. Karumbaiah for the appellant submitted that the suit was hopelessly barred by law of limitation. He said, "The defendants (legal heirs of Bopaiah) have specifically taken a contention that from the year 1969, their father deceased Muthanna was in possession of the suit schedule property and was cultivating it by growing banana, coffee and other commercial crops."

Further, when there was division of property between himself and his elder sister in the year 1986, he got the survey of the land made. It was at that time, he came to know that the defendants (Late Bopaiah) had encroached on their property.

Thus it was contended that, "From the said date, within a period of twelve years, the suit has not been filed. As such, the suit is hopelessly barred by limitation." Thus the defendants have proved the perfection of their title over the suit schedule property by adverse possession."

Defendants arguments:

Advocate Shravanth Arya Tandra, Advocate For M/s.Poovayya & Co argued that, "In RSA.No.486/1995, this Court has given liberty to the defendants to take appropriate legal action for recovery of the encroached land, which is the suit schedule property. The said appeal came to be disposed of in the year 1998, as such, without any further delay, in the very next year i.e., in 1999, the present suit was filed, thus, the same is within limitation."

Further he said, "The present defendants have already delivered the possession of that piece of land which was said to be encroached by their father Bopaiah, in favour of the defendants, as a reciprocity, the defendants, who have encroached larger portion of the land, are also required to deliver the possession to the plaintiffs."

Court findings:

Firstly, the court on going through the records and orders passed by the courts earlier noted,

"It is not in dispute that, at the instance of said Bopaiah, Commissioner for survey of land was appointed for surveying the properties of the plaintiff and defendant. The said Commissioner's report revealed that the alleged encroachment by Bopaiah in the lands of Muthanna was only to an extent of 20 cents and 10 cents in Survey No.48/2 and Survey No.48/3 respectively, whereas, the said Muthanna had encroached the land to an extent of 2.25 acres in Survey No.48/9 and 50 cents in Survey No.48/11. The Commissioner's report was not challenged by the respondents."

It added, "Therefore, when this Court has considered and accepted the Commissioner's report, the argument of learned counsel for the appellant that by setting aside the judgement passed in R.A.No.9/1991, (regular Appeal filed by Bopaiah challenging the order dated 1998) the Commissioner's report also gets set aside, is not acceptable."

Then the court considered the contention of adverse possession and said that, "The plaintiffs in their plaint have stated that they came to know about the exact encroachment in their property made by the defendants only after the Commissioner surveyed the land as per the orders of the first Appellate Court."

It added,

"Thus, it is clear that, it is only after the plaintiff making a demand to the defendants to vacate the land and when the defendants refused to vacate the land and showed that they are not ready and willing to vacate the land, but, claimed their title by adverse possession over the property, the plaintiffs got cause of action to sue the defendants. As such, the suit filed by the plaintiffs in the trial court cannot be said to be barred by limitation."

Further it said "Animus possidendi" is one of the ingredients of adverse possession and unless the person possessing the property has the requisite hostile animus, the period of prescription does not commence. The physical fact of exclusion, possession and animus possidendi, to hold as owner, in exclusion to the actual owner, are the most important factors to prove the adverse possession.

Relying on the judgement of the Supreme Court in the case of Dagadabai (Dead) by Legal Representatives v. Abbas alias Gulab Rustum Pinjari, reported in (2017) 13 SCC 705, the court said "The person raising a plea of adverse possession must necessarily first admit the ownership of the true owner of relevant property to the knowledge of that owner."

The court also noted "The plaintiffs (Bopaiah) in the instant case, came to know the exact extent of their land under the possession of the defendants by instituting the present suit and it is the defendants, through their written statement, have taken up the plea of adverse possession. Thus, except for taking such a plea, the defendants have not placed any material to show, from when their possession of the portion of the plaintiffs' property has become their possession adverse and hostile to the title of the plaintiffs."

It added, "Merely because they produced two RTC, it cannot be inferred that their possession of the property was adverse and hostile to the title of the original owner and the same was to the knowledge of the true owner."

The court then held "As such, the finding given by the trial Court does not warrant any interference at the hands of this Court and decree passed by the trial Court directing the defendants therein to hand over possession of the suit schedule property to the plaintiffs requires to be confirmed."

Case Title: Chepudira Madaiah v. Mallengada Chengappa

Citation: 2022 LiveLaw (Kar) 5

Case No: R.F.A.No.1840 of 2005

Date of Order: 17th Day of November 2021

Appearance: Advocate T.A.Karumbaiah for appellant; Advocate Shravanth Arya Tandra for respondents.

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