Case Note & Summary
This second appeal arose from a decree of the lower appellate court decreeing a suit for possession of encroached agricultural land. The respondents (original plaintiffs) owned agricultural land Gat No.281 (Survey No.84/1) in village Moh, Taluka Sinnar, District Nashik. The appellants (original defendants) owned adjacent land Gat No.304. In June 1971, a survey conducted by the plaintiffs revealed that the defendants had encroached upon 99 Ares of the plaintiffs' land and merged it with their own. The plaintiffs filed Regular Civil Suit No.171 of 1971 seeking possession. The trial court dismissed the suit on 8 February 1982, holding that the defendants had perfected title by adverse possession as the encroachment existed for over 18 years. The plaintiffs appealed to the District Judge, Nasik, who by judgment dated 26 April 1991 reversed the trial court and decreed the suit, directing the defendants to deliver vacant possession of the encroached portion. The defendants then filed the present second appeal. The substantial questions of law framed were whether the suit was barred by limitation and whether the defendants had perfected title by adverse possession. The High Court examined the pleadings and evidence. It noted that the defendants' written statement did not specifically plead the date when their possession over the suit land became adverse to the plaintiffs' title. The trial court had dismissed the suit merely on the ground of long possession without considering the necessary ingredients of adverse possession. The High Court relied on several precedents, including S.M. Karim v. Bibi Sakina, D.N. Venkatarayappa v. State of Karnataka, and Bhimrao Dnyanoba Patil v. State of Maharashtra, which emphasized that adverse possession requires actual, continuous, and hostile possession with animus, and that the person claiming such title must specifically plead and prove when the possession became adverse. The court also referred to Article 65 of the Limitation Act, 1963, under which limitation commences only when possession becomes adverse. Since the defendants failed to establish the starting point of adverse possession, their claim failed. Regarding limitation, as the defendants had not shown when the period began to run, the suit was not barred. The High Court held that the lower appellate court was justified in reversing the trial court's erroneous findings. Consequently, the second appeal was dismissed, and the decree for possession was upheld.
Headnote
A) Limitation - Suit for Possession - Article 65 of Limitation Act, 1963 - Limitation for a suit based on title does not commence until defendants' possession becomes adverse to the plaintiff's title - The defendants did not plead or prove the specific date when their possession became hostile; hence suit not barred by limitation (Paras 5, 10-11). B) Adverse Possession - Pleading and Proof - Section 27 and Article 65, Limitation Act, 1963 - Adverse possession requires specific pleading of when possession became adverse and open hostile animus brought to owner's knowledge - Mere long possession is insufficient - Failure to plead starting point of adverse possession and prove hostile title is fatal - Defendants claimed encroachment existed for 18 years but did not establish when possession turned adverse; lower appellate court rightly reversed trial court's finding (Paras 5-11).
Issue of Consideration
Whether the defendants had perfected their title by adverse possession, and whether the suit was barred by limitation
Final Decision
Second Appeal No.319 of 1991 dismissed. Decree of the lower appellate court directing the defendants to deliver actual, vacant and peaceful possession of the encroached portion admeasuring 99 Ares in Gat No.281 to the plaintiffs confirmed. The defendants failed to prove adverse possession and the suit was not barred by limitation.
Law Points
- Adverse possession requires open and explicit disavowal and disclaimer brought to the knowledge of the owner
- mere possession for a long period not sufficient to mature title by adverse possession
- permissive possession does not become adverse by mere change in mental attitude
- essential ingredients of adverse possession are actual and continuous possession along with necessary animus
- plea of adverse possession must be specifically pleaded
- limitation for suit for possession under Article 65 commences when possession becomes adverse to the true owner
