The Supreme Court has observed that plea of title and adverse possession cannot be advanced simultaneously and from the same date.
In this case, the plaintiff filed a suit claiming that he is the full and absolute owner of the schedule property and also sought a direction to remove the temporary structure put up by the defendant on the schedule property. The defendant claimed that the said property was sold by plaintiff's brother to his wife and made her the absolute owner. The sale deed was, however, not registered as there was a prohibition on registration of piece lands.The defendant also claimed that his wife has also got the prescriptive right of ownership over the said site property by way of adverse possession. The Trial Court dismissed the suit. Later, the High Court reversed it and decreed the suit on the ground that the original defendant had not been able to establish the plea of adverse possession.
Agreeing with the High Court view the bench comprising Justices Sanjay Kishan Kaul, Ajay Rastogi and Aniruddha Bose observed that the claim of title from 1976 and the plea of adverse possession from 1976 cannot simultaneously hold. On the failure to establish the plea of title, it was necessary to prove as to from which date did the possession of the wife of the defendant amount to a hostile possession in a peaceful, open and continuous manner.
"We fail to appreciate how, on the one hand the appellants claimed that the wife of the original defendant, appellant 1 herein, had title to the property in 1976 but on their failure to establish title, in the alternative, the plea of adverse possession should be recognised from the very date."
The bench said that the issue in this case is whether simultaneously a plea can be taken of title and adverse possession, i.e.,whether it would amount to taking contradictory pleas? To answer this issue, the bench referred to the following judgments : 1) Karnataka Board of Wakf v. Government of India (2004) 10 SCC 779 (2) Mohan Lal (Deceased) Thr. LRs. v. Mirza Abdul Gaffar 1996 SCC (1) 639 (3) P.T. Munichikkamma Reddy & Ors. v. Revamma (2007) 6 SCC 59 (4) M. Siddiq (Dead) Through LRs (Ram Janmabhumi Temple Case) v. Mahant Suresh Das& Ors. (2020) 1 SCC 1 (5) Ram Nagina Rai & Anr. v. Deo Kumar Rai (Deceased) by LRs (2019) 13 SCC 324. The court noted that in these judgments, it is held that 1) The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced 2) In order to establish adverse possession an inquiry is required to be made into the starting point of such adverse possession and, thus, when the recorded owner got dispossessed would be crucial. (3) It has to be specifically pleaded and proved as to when possession becomes adverse in order for the real owner to lose title 12 years hence from that time. The court observed:
The possession has to be in public and to the knowledge of the true owner as adverse, and this is necessary as a plea of adverse possession seeks to defeat the rights of the true owner. Thus, the law would not be readily accepting of such a case unless a clear and cogent basis has been made out.......In the facts of the present case, this fact has not at all been proved. The possession of Smt. Narasamma, the wife of the defendant, is stated. to be on account of consideration paid. Assuming that the transaction did not fructify into a sale deed for whatever reason, still the date when such possession becomes adverse would have to be set out. Thus, the plea of adverse possession is lacking in all material particulars.....The legal position, thus, stands as evolved against the appellants herein in advancing a plea of title and adverse possession simultaneously and from the same date."
The bench also rejected the contention of the defendant relying on Ravinder Kaur Grewal & Ors. v. Manjit Kaur. It observed:
The question which arose for consideration before the three Judge Bench was whether, a suit could be maintained for declaration of title and for permanent injunction seeking protection on a plea of adverse possession, or that it was an instrument of defence in a suit filed against such a person. In fact, if one may say, there was, for a long time a consistent view of the Court that the plea could only be of shield and not a sword. The judgment changed this legal position by opining that a plea to retain (supra) possession could be managed by the ripening of title by way of adverse possession. However, to constitute such adverse possession, the three classic requirements, which need to co-exist were again emphasized, nec vi, i.e., adequate in continuity, nec clam, i.e., adequate in publicity and nec precario, i.e., adverse to a competitor, in denial of title and his knowledge.
Case detailsCase no.: CIVIL APPEAL NO.2710 OF 2010Case name: NARASAMMA vs. A. KRISHNAPPA (Dead)Coram: Justices Sanjay Kishan Kaul, Ajay Rastogi and Aniruddha Bose