The instant Second Appeal was filed against the appellate judgement and decree dated 30/06/2008, passed by the Learned Additional District Judge, 3rd Court, Hoogly in Title Appeal No.74 of 2004, reversing the judgment and decree of the Trial Court dated 12/03/2004.

The sum and substance of the plaint case was that the Plaintiffs jointly purchased a plot of land admeasuring 2 cottahs 20 sq. ft. along with structures standing thereon (suit property) on 17/02/1992 by a registered deed of conveyance. Prior to purchase, the Defendant No.1 was in occupation of the same as caretaker. On the date of execution of the deed of conveyance, the proforma Defendant No.2 cancelled the license granted to the Defendant No.1 and asked to handover the possession. On request, a fresh leave and license was granted to the Defendant No.1 by the Plaintiffs. On or about 06/10/1994 the Plaintiffs requested the Defendant No.1 to quit and vacate the suit property but they requested for extension of license for another period of six months to which the Plaintiffs agreed. Again on 21/06/1995, the Plaintiffs requested the Defendant No.1 to vacate the suit property but the Defendant No.1 denied. On being constrained, the Plaintiffs instituted the original suit for recovery of possession along with other reliefs.

The Defendant No.1 contested the suit by filling written statement denying all the allegations. The Defendant No.1 denied that he was a caretaker under the Defendant No.2. It was denied that on verbal request, the Plaintiffs allowed the Defendant No.1 to continue possession. The positive case of the Defendant No.1 was that he was an “Adivasi” and had been residing in the suit property by constructing two tile shaded rooms with brick built walls; the Defendant No.1 had also been enjoying the usufructs of the land and fruit bearing trees since 1963. The Defendant No.2 came on 01/01/1970 and asked him to vacate but not only he refused to do that but ousted the Defendant No.2 from the suit property. The Defendant No.1 had been in possession of the suit property forcefully, continually with full knowledge of the Defendant No.2 by making construction therein. In other words, the Defendant No.1 raised the defense of adverse possession to the claim of the Plaintiffs.

                    The Trial Court framed four issues on the basis of rival pleadings:

                    1. Is the suit maintainable in its present form?

                    2. Are the Plaintiffs owners of the suit property?

                    3. Is the Defendant a licensee in the suit property?

                    4. Are the Plaintiffs entitled to get decree as prayed for?

The Trial Court decided the Issue No.1 and 2 in favour of the Plaintiffs. So far as the Issue No.3 was concerned, it was observed by the Trial Court that the Plaintiffs failed to prove their case. It was also observed that the Plaintiffs failed to file any document to show their possession in the suit property. The Plaintiffs also failed to prove grant of license to the Defendant No.1. The Issue No. 3 was decided against the Plaintiffs. On appreciation of evidence, the Trial Court dismissed the suit.

On being aggrieved and dissatisfied with the judgment and decree passed by the Trial Court, the Plaintiffs preferred the first appeal. The Appellate Court set aside the judgment and decree passed by the Trial Court. The Appellate Court observed, while setting aside the judgment and decree of the Trial Court that a person who claimed title to the property by adverse possession, must establish that the possession was adequate, continuous and that it must be known to the real owner as adverse. If there is no evidence as to when the possession became adverse, a new suggestion that the possession was uninterrupted for twelve years is not enough. The Defendant No.1 failed to establish the same, as observed. It was further observed that though the Defendant No.1 claimed to have made constructions but no pleading is there to indicate that such construction was made in order to exclude the real owner. It was further noted by the Appellate Court that the written statement is absolutely silent as to who was the owner of the structure. After elaborate discussions on the applicable law and fact, the Appellate Court decided the Appeal in favour of the Appellant/Plaintiff.

On being aggrieved, the Defendant No.1 preferred the present appeal. The Defendant No.1 is the Appellant herein whereas the Plaintiffs are the Respondents.

At the time of admission of the present appeal, the following substantial question of law was framed:

                    Whether the Learned First Appellate Court committed substantial error of law in not accepting the claim of the Defendant No.1 with regard to acquisition of title in the suit property by way of adverse possession against the Plaintiff.

I have heard rival submissions.

Law on adverse possession is well settled. Hon’ble Supreme Court of India observed in S. M. Karim vs Mst. Bibi Sakina (AIR 1964 SC 1254):

                    “Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea.”

In Karnataka Board of Wakf v. Govt. of India [(2004) 10 SCC 779] the Supreme Court of India observed:

                    11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precario”, that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina [AIR 1964 SC 1254], Parsinni v. Sukhi [(1993) 4 SCC 375] and D.N. Venkatarayappa v. State of Karnataka [(1997) 7 SCC 567].) 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. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma [(1996) 8 SCC 128].]

In Ravinder Kaur Grewal v. Manjit Kaur [(2019) 8 SCC 729] the Supreme Court of India explained the concept as follow:

                    “60. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, 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. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser's long possession is not synonymous with adverse possession. Trespasser's possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and large the concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession.”

In Vasantha v. Rajalakshmi [(2024) 5 SCC 282], relied upon by the Learned Counsel for the Respondent herein, it was observed:

                    “40. In Saroop Singh v. Banto [Saroop Singh v. Banto, (2005) 8 SCC 330] (two-Judge Bench), this Court observed that Article 65 states that the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. Further relying on Karnataka Wakf Board v. Union of India [Karnataka Wakf Board v. Union of India, (2004) 10 SCC 779] (two-Judge Bench), it observed that the 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 related to adverse possession. Plea of adverse possession is not a pure question of law but a blend 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.

                    A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to prove his adverse possession.”

Law of adverse possession restricts a right of owner to recover possession before the period of limitation fixed for extinction of his rights expires. Once the right is extinguished another person acquires prescriptive right which cannot be defeated by re-entry by the owner or subsequent acknowledgment of his rights. As observed in Ravinder Kaur Grewal’s case three classic requirements should be present and co-exist, namely, adequacy of continuity, adequacy in publicity and adverse to a competitor in denial of his title and his knowledge. It must be visible, notorious and peaceful so that if the owner does not take care to know the alleged notorious facts, knowledge is attributed to him on the basis of that for due diligence he could have known it. A hostile colour of title namely animus possidendi is required. Trespasser’s long the possession is not synonymous with adverse possession. The trespasser’s possession is construed to be on behalf of owner; the owner can take possession from a trespasser at any point of time.

Coming to the case in hand, there is a pleading of long possession adverse to the owner. It was also pleaded that the Defendant No. 2 came on 01/01/1970 and asked the Defendant No. 1 to vacate the schedule property which the Defendant No. 1 refused and ousted the said Defendant No. 2. The D.W. 1 testified that the witness had no knowledge as to who was the owner of the property. Only in the year 1970 his father, the original Defendant No. 1 came to know who was the owner. There was no evidence that the property was in occupation exercising hostile title. It was further testified that construction was made without any permission of the civic body. There was neither pleading nor evidence as to the point of time from which time the possession became adverse. Secondly, absence of knowledge of the ownership stands on the way to the claim of adverse possession simply because the possessor does not know against whom he is setting up an adverse title; a hostile title cannot be raised against an unknown person. It was pleaded that the Defendants are in possession from the year 1963 but they have constructed rooms in the year 1968, as deposed, rendering evidence at variance with the pleading. There is no evidence to show that possession was adverse to the title of the Plaintiffs.

The Trial Court failed to appreciate and bear in the mind that a person can occupy property without any written document; a person can be allowed verbally to stay in the premises without anything in writing. It is pleaded in the plaint that possession of the Defendants was permissive; a permission can be oral or written. The Trial Court failed to appreciate evidence in proper perspective and also failed to apply the correct law.

The Learned Counsel for the Appellant vehemently argued that the Appellant and the family members have voter identity card in the address of the suit property which amply shows that they are permanent resident of the same premises. This type of plea was considered by the Supreme Court of India in Dnyaneshwar Ranganath Bhandare and Anr. Vs. Sadhu Dadu Shettigar (Shetty) and Anr. [(2011) 10 SCC 433]. The issue was recovery of possession from a licensee. The Supreme Court of India observed, so far as electoral role or election identity card is concerned, that electoral role would not show whether a person is occupying a premises as a tenant or as a licensee. It may at best show that the person was residing in the premises. In fact, in this case in hand, possession was not disputed. The electoral role or election identity card does not decide on the nature of occupation or possession. The Supreme Court of India in Dnyaneshwar Ranganath Bhandare’s case set aside the inference drawn by the First Appellate Court on the basis of electoral role that the second Respondent was a licensee. Therefore, the argument advanced by the Learned Counsel for the Appellant does not hold ground.

It was further argued by the Learned Counsel that the High Court should be slow to interfere the judgments decided on the fact of the case in second appeal. It was argued that before reversing the finding of a fact the appellate court has to bear in mind the reason ascribed by the trial court. The Learned Counsel referred to S.V. R. Mudaliar (dead) and Ors. Vs. Rajabu F. Buhari (dead) and Ors. [(1995) 4 SCC 15] and the Learned Counsel also relied upon the three Judges Bench decision of the Supreme Court of India in Santosh Hazari Vs. Purushottam Tiwari [(2001) 3 SCC 179]. These cases were decided on facts and circumstances specific to them and has no bearing on the present case.

In the instant case, the Trial Court has failed to appreciate evidence properly and failed to apply the correct principal of law. The First Appellate Court applied the correct principal of law on adverse possession and decided the case on the basis of pleadings and evidence. This Court concurs with the findings of the first Appellate Court in respect of the plea of adverse possession even though disagree with the findings on application of Section 60 of the Indian Easements Act, 1882.

In nutshell, for forgoing reasons, the judgment and decree passed by the First Appellate Court is upheld.

The instant appeal stands dismissed on merit.

The Appellant shall hand over the possession of the suit property within a period of thirty days from the date of drawing up of the decree in case of failure of which the Respondent/Plaintiff shall be at liberty to draw up execution proceeding before the Executing Court.

Liberty is also given to the Respondent/Plaintiff to file suit for claiming mesne-profit, if any.

LCR be returned.

The instant appeal stands disposed of.