Suit – Declaration of title – According to the appellantplaintiff, the suit land fell to his share after the death of his father by a partition amongst his brothers – In 1983, appellant noticed that the suit land i.e. 1 Gunta in Sy. No. 17/3 was encroached upon by the respondents-defendants – In 1992, appellant filed suit against the respondents for declaration of his ownership over the entire land including the suit land – Trial court and the First Appellate Court held that respondents had perfected their title by adverse possession – In the second appeal, the High Court declared respondents to be the owner of the suit land by virtue of their adverse possession – On appeal, held: Respondents had admitted the ownership of the appellant over the entire land including the suit land by setting up the plea of adverse possession over it – Respondents failed to prove their adverse possession as there was no element of either adversity or/and hostility between two coowners/brothers because in a dispute of this nature where both the parties are related, possession of one is regarded as possession of other unless the facts show otherwise – Also, there was no knowledge of actual measurements of the suit land prior to the year 1983 – Plea of adverse possession was also not available to the respondents as suit was filed well within 12 years from the date of knowledge of adverse possession and 12 years had not completed by then – The Courts below were not justified in declaring the respondents to be the owner of the encroached portion of the suit land by virtue of adverse possession – Judgment of the High Court set aside – Thus, appellant-plaintiff ’s suit decreed in its entirety against the respondents-defendants – Respondents to vacate the encroached portion (1 Gunta in Sy.No. 17/3) and hand over its possession to the appellant.
Allowing the appeal, the Court
HELD: 1. Keeping in view the law relating to the adverse possession, when the facts of the instant case are examined, there is 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 is said for the following reasons. [Para 21][1079-C-D]
2. 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), 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). [Para 22][1079-E-H; 1080-A-C]
3. 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. 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, 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. [Paras 24, 25][1080-E-G]
4. It is for all these reasons, this Court is 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 being against the settled principle of law deserves to be set aside. [Para 26][1080-H; 1082-A]
T. Anjanappa & Ors. v. Somalingappa & Anr.
(2006) 7 SCC 570 : [2006] 5 Suppl. SCR 200 ; Chatti Konati Rao & Ors. v. Palle Venkata Subba Rao, (2010)
14 SCC 316 : [2010] 15 SCR 923 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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