Case: SRI UTTAM CHAND (D) TH LRS  Vs. NATHU RAM (D) THR. LRS

second by leading sufficient evidence. Evidence, it is well settled, can only be adduced with reference to matters which are pleaded in a civil suit and in the absence of an adequate pleading, evidence by itself cannot supply the deficiency of a pleaded case. Reading paragraph 11(a), it becomes evident that beyond stating that the Muslims have been in long exclusive and continuous possession beginning from the time when the Mosque was built and until it was desecrated, no factual basis has been furnished. This is not merely a matter of details or evidence. A plea of adverse possession seeks to defeat the rights of the true owner and the law is not readily accepting of such a case unless a clear and cogent basis has been made out in the pleadings and established in the evidence. xx xx xx 752. In Supdt. and Remembrance of Legal Affairs, West Bengal v. Anil Kumar Bhunja, (1979) 4 SCC 274 , Justice R S Sarkaria, speaking for a three judge Bench of this Court noted that the concept of possession is polymorphous. embodying both a right (the right to enjoy) and a fact (the real intention). The learned judge held: 13. It is impossible to work out a completely logical and precise definition of possession uniformly applicable to all situations in the contexts of all statutes. Dias and Hughes in their book on Jurisprudence say that if a topic ever suffered from too much theorising it is that of possession. Much of this difficulty and confusion is (as pointed out in Salmonds Jurisprudence, 12th Edn., 1966) caused by the fact that possession is not purely a legal concept. Possession, implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention. It involves power of control and intent to control. (See Dias and Hughes, ibid.). These observations were made in the context of possession in Section 29(b) of the Arms Act 1959. In P Lakshmi Reddy v. L Lakshmi Reddy, 1957 SCR 195 , Justice Jagannadhadas, speaking for a three judge Bench of this Court dwelt on the classical requirement of adverse possession: 4. Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. (See Secretary of State for India v. Debendra Lal Khan [(1933) LR 61 IA 78, 82] ). The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.The court cited the following extract from U N MitrasT agore Law Lectures on the Law of Limitation and Prescription: 7…An adverse holding is an actual and exclusive appropriation of land commenced and continued under a claim of right, either under an openly avowed claim, or under a constructive claim (arising from the acts and circumstances attending the appropriation), to hold the land against him (sic) who was in possession. (Angell, Sections 390 and 398). It is the intention to claim adversely accompanied by such an invasion of the rights of the opposite party as gives him a cause of action which constitutes adverse possession.(6th Edition, Vol. I, Lecture VI, at page 159) This Court held: 7…Consonant with this principle the commencement of adverse possession, in favour of a person implies that the person is in actual possession, at the time, with a notorious hostile claim of exclusive title, to repel which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until he obtains actual possession with the requisite animus.In Karnataka Board of Wakf v. Government of India, (2004) 10 SCC 779 , Justice S Rajendra Babu, speaking for a two judge Bench held that: 11…Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. 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.The ingredients must be set up in the pleadings and proved in evidence. There can be no proof sans pleadings and pleadings without evidence will not establish a case in law. In Annakili v. A Vedanayagam, (2007) 14 SCC 308 , this Court emphasized that mere possession of land would not ripen into a possessory title. The possessor must have animus possidendi and hold the land adverse to the title of the true owner. Moreover, he must continue in that capacity for the period prescribed under the Limitation Act. 16. In the present case, the defendants have not admitted the vesting of the suit property with the Managing Officer and the factum of its transfer in favour of the plaintiff. The defendants have denied the title not only of the Managing Officer but also of the plaintiff. The plea of the defendants is one of continuous possession but there is no plea that such possession was hostile to the true owner of the suit property. The evidence of the defendants is that of continuous possession. Some of the receipts pertain to 1963 but possession since November, 1963 till the filing of the suit will not ripe into title as the defendants never admitted the plaintiff-appellant to be owner or that the land ever vested with the Managing Officer. In view of the judgments referred to above, we find that the findings recorded by the High Court that the defendants have perfected their title by adverse possession are not legally sustainable.

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

Explanation:
1[ds]16. In the present case, the defendants have not admitted the vesting of the suit property with the Managing Officer and the factum of its transfer in favour of the plaintiff. The defendants have denied the title not only of the Managing Officer but also of the plaintiff. The plea of the defendants is one of continuous possession but there is no plea that such possession was hostile to the true owner of the suit property. The evidence of the defendants is that of continuous possession. Some of the receipts pertain to 1963 but possession since November, 1963 till the filing of the suit will not ripe into title as the defendants never admitted the plaintiff-appellant to be owner or that the land ever vested with the Managing Officer. In view of the judgments referred to above, we find that the findings recorded by the High Court that the defendants have perfected their title by adverse possession are not legally sustainable.