Case: MALLIKARJUNAIAH Vs. NANJAIAH

of a large number of cases of this Court. 19. In T. Anjanappa & Ors. vs. Somalingappa & Anr., (2006) 7 SCC 570 , this Court held that mere possession, howsoever long it may be, does not necessarily mean that it is adverse to the true owner and the classical requirement of acquisition of title by adverse possession is that such possessions are in denial of the true owners title. 20. Relying upon the aforesaid decision, this Court again in Chatti Konati Rao & Ors. vs. Palle Venkata Subba Rao, (2010) 14 SCC 316 in para 14 held as under: 14. In view of the several authorities of this Court, few whereof have been referred above, what can safely be said is that 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. 21. Keeping in view the law relating to the adverse possession quoted above, when we examine the case at hand, we have no hesitation in holding that the Courts below were not justified in holding that the defendants have perfected their title over the suit land qua the plaintiff by virtue of their adverse possession over the suit land. This we say for the following reasons. 22. First, it is not in dispute that the appellant(plaintiff) was the owner of the entire land including the suit land, i.e., encroached portion, which was alleged to be in possession of the respondents(defendants). In other words, the respondents(defendants) have admitted the ownership of the appellant(plaintiff) over the entire land including the suit land by setting up the plea of adverse possession over it; Second, the burden to prove the adverse possession was on the respondents(defendants) because it was they who had set up this plea; Third, the respondents(defendants), in our view, failed to discharge this burden; Fourth, 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; Fifth, the respondents(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 appellant(plaintiff) continuously for a period of more than 12 years; Sixth, it is a settled principle of law 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. Such is not the case here. Seventh, this was a case where both the parties were not aware as to how much land was in exclusive possession of each. In other words, here is a case where both the parties to the suit did not know as to how much land was in the exclusive possession of the appellant (plaintiff) and how much land was in possession of the respondents(defendants). It was only when the appellant(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 respondents(defendants). 23. Thereafter the appellant(plaintiff) filed a suit in the year 1992 against the respondents(defendants) for declaration and injunction and in the alternative also claimed possession of the suit land. The suit was, therefore, filed well within the period of 12 years from the date of knowledge, i.e., in the year 1983. During this period also, there was no evidence adduced by the defendants to prove that they ever asserted their right of ownership over the specific portion of the suit land as belonging to them openly and with assertion of hostility to the knowledge of appellant(plaintiff). 24. In our view, the appellant(plaintiff) having come to know that the respondents(defendants) had encroached upon his land in the year 1983 and he rightly filed the suit within 12 years from the date of knowledge, a plea of adverse possession was not available to the respondents(defendants) against the appellant(plaintiff) because 12 years had not been completed by then. 25. In this view of the matter, the question of respondents(defendants) perfecting their title by adverse possession over the suit land did not arise. As mentioned above, even if the respondents(defendants) claimed to be in possession over the suit land prior to the year 1983, the same was of no consequence for the simple reason that such possession was neither exclusive nor hostile and nor it was to the knowledge of the parties for want of actual measurements. 26. It is for all these reasons, we are of the considered view that the Courts below were not justified in declaring the respondents(defendants) to be the owner of the encroached portion of the suit land by virtue of adverse possession. This finding, in our view, being against the settled principle of law deserves to be set aside.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]21. Keeping in view the law relating to the adverse possession quoted above, when we examine the case at hand, we have no hesitation in holding that the Courts below were not justified in holding that the defendants have perfected their title over the suit land qua the plaintiff by virtue of their adverse possession over the suit land. This we say for the following reasons22. First, it is not in dispute that the appellant(plaintiff) was the owner of the entire land including the suit land, i.e., encroached portion, which was alleged to be in possession of the respondents(defendants). In other words, the respondents(defendants) have admitted the ownership of the appellant(plaintiff) over the entire land including the suit land by setting up the plea of adverse possession over it; Second, the burden to prove the adverse possession was on the respondents(defendants) because it was they who had set up this plea; Third, the respondents(defendants), in our view, failed to discharge this burden; Fourth, 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; Fifth, the respondents(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 appellant(plaintiff) continuously for a period of more than 12 years; Sixth, it is a settled principle of law 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. Such is not the case here. Seventh, this was a case where both the parties were not aware as to how much land was in exclusive possession of each. In other words, here is a case where both the parties to the suit did not know as to how much land was in the exclusive possession of the appellant (plaintiff) and how much land was in possession of the respondents(defendants). It was only when the appellant(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 respondents(defendants)23. Thereafter the appellant(plaintiff) filed a suit in the year 1992 against the respondents(defendants) for declaration and injunction and in the alternative also claimed possession of the suit land. The suit was, therefore, filed well within the period of 12 years from the date of knowledge, i.e., in the year 1983. During this period also, there was no evidence adduced by the defendants to prove that they ever asserted their right of ownership over the specific portion of the suit land as belonging to them openly and with assertion of hostility to the knowledge of appellant(plaintiff)24. In our view, the appellant(plaintiff) having come to know that the respondents(defendants) had encroached upon his land in the year 1983 and he rightly filed the suit within 12 years from the date of knowledge, a plea of adverse possession was not available to the respondents(defendants) against the appellant(plaintiff) because 12 years had not been completed by then25. In this view of the matter, the question of respondents(defendants) perfecting their title by adverse possession over the suit land did not arise. As mentioned above, even if the respondents(defendants) claimed to be in possession over the suit land prior to the year 1983, the same was of no consequence for the simple reason that such possession was neither exclusive nor hostile and nor it was to the knowledge of the parties for want of actual measurements26. It is for all these reasons, we are of the considered view that the Courts below were not justified in declaring the respondents(defendants) to be the owner of the encroached portion of the suit land by virtue of adverse possession. This finding, in our view, being against the settled principle of law deserves to be set aside.