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

The Karnataka High Court has said a person will not acquire adverse possession by simply remaining in permissive possession, for however long it may be. 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."It opined that until the defendants' possession becomes adverse to that of the real owner, the defendants continue in permissive possession of the property. "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.It added,"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...

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

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