TMI Blog2007 (4) TMI 738X X X X Extracts X X X X X X X X Extracts X X X X ..... ance to assess the nature of appellant's possession. The question is whether it is a case of mistaken possession ignoramus of the previous sale or adverse possession having the mental element in the requisite degree to dispossess. Also much depends on the answer to the query regarding the starting point of adverse possession: when can the possession be considered to have become adverse? In the facts and circumstances of this case, the possession of appellant was effected through the sale deeds, dated 11.04.1934 and 5.07.1936. Therefore, the alleged fact of adverse possession bears a pronounced backdrop of 1933 sale deed passing 1 acre 21 Guntas to the respondent. . As has already been mentioned, adverse possession is a right which comes into play not just because someone loses his right to reclaim the property out of continuous and willful neglect but also on account of possessor's positive intent to dispossess. Therefore it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the paper-owner of the property. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaintiffs-appellants have acquired title by adverse possession as they have been in possession of the lands in question for a period of more than 50 years. On an appeal having been preferred there against by the respondents before the High Court, the said judgment of the Trial Court was reversed holding: (i) ...The important averments of adverse possession are two fold. One is to recognize the title of the person against whom adverse possession is claimed. Another is to enjoy the property adverse to the title holder's interest after making him known that such enjoyment is against his own interest. These two averments are basically absent in this case both in the pleadings as well as in the evidence.... (ii) The finding of the Court below that the possession of the plaintiffs' become adverse to the defendants between 1934-1936 is again an error apparent on the face of the record. As it is now clarified before me by the learned Counsel for the appellants that the plaintiffs' claim in respect of the other land of the defendants is based on the subsequent sale deed dated 5.7.1936. It is settled law that mere possession even if it is true for any number of y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im of right or color of title. (See American Jurisprudence, Vol. 3, 2d, Page 81). It is important to keep in mind while studying the American notion of Adverse Possession, especially in the backdrop of Limitation Statutes, that the intention to dispossess can not be given a complete go by. Simple application of Limitation shall not be enough by itself for the success of an adverse possession claim. 6. To understand the true nature of adverse possession, Fair-weather v. St Marylebone Property Co [1962] 2 WLR 1020 : [1962] 2 All ER 288 can be considered where House of Lords referring to Taylor v. Twinberrow [1930] 2 K.B. 16 termed adverse possession as a negative and consequential right effected only because somebody else's positive right to access the court is barred by operation of law: In my opinion this principle has been settled law since the date of that decision. It formed the basis of the later decision of the Divisional Count in Taylor v. Twinberrow [1930] 2 K.B. 16 in which it was most clearly explained by Scrutton, L.J. that it was a misunderstanding of the legal effect of 12 years adverse possession under the Limitation Acts to treat it as if it gave a title wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effectively shifts the title already distanced from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property. 8. It is interesting to see the development of adverse possession law in the backdrop of the status of Right to Property in the 21st Century. The aspect of stronger Property Rights Regime in general, coupled with efficient legal regimes furthering the Rule of Law argument, has redefined the thresholds in adverse possession law not just in India but also by the Strasbourg Court. Growth of Human Rights jurisprudence in recent times has also palpably affected the developments in this regard. . NEW CONSIDERATION IN ADVERSE POSSESSION LAW 9. In that context it is relevant to refer to JA Pye (Oxford) Ltd. v. United Kingdom [2005] 49 ERG 90 : [2005] ECHR 921 wherein the European Court of Human Rights while referring to the Court of Appeal judgment [2001] EWCA Civ 117 : [2001] Ch 804 made the following reference: Lord Justice Keene took as his starting point that limitation periods were in principle not incompatible with the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not disputed even by the trial court that the appellant entered into possession over the land in dispute under a licence from the respondent for purposes of brick-kiln. The possession thus initially being permissive, the burden was heavy on the appellant to establish that it became adverse. A possession of a co-owner or of a licencee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissible possession into adverse possession. Apart from it, the Appellate Court has gone into detail and after considering the evidence on record found it as a fact that the possession of the appellant was not adverse. 14. The present case is one of the few ones where even an unusually long undisturbed possession does not go on to prove the intention of the adverse possessor. This is a rare circumstance, which Clarke LJ in Lambeth London Borough Council v. Blackburn (2001) 82 P CR 494 refers to: I would not for my part think it appropriate to strain to hold that a trespa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adverse possession right is not a substantive right but a result of the waiving (willful) or omission (negligent or otherwise) of right to defend or care for the integrity of property on the part of the paper owner of the land. Adverse possession statutes, like other statutes of limitation, rest on a public policy that do not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence. While dealing with the aspect of intention in the Adverse possession law, it is important to understand its nuances from varied angles. 16. Intention implies knowledge on the part of adverse possessor. The case of Saroop Singh v. Banto and Ors. AIR2005SC4407 in that context held: 29. In terms of Article 65 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 defendants possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak) 30. Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. Once on facts it has been found that the purchase was on behalf of all and that the possession was on behalf of all, then, in the absence of any open, hostile and overt act, there can be no adverse possession and the suit would also not be barred by limitation. The only hostile act which could be shown was the advertisement issued in 1989. The suit filed almost immediately thereafter. The test is, as has been held in the case of R. v. Oxfordshire County Council and Ors., Ex Parte Sunning-well Parish Council [1999] 3 ALL ER 385 : [1999] 3 WLR 160: Bright v. Walker (1834) 1 Cr. M. R. 211 openly and in the manner that a person rightfully entitled would have used it.... The presumption arises, as Fry J. said of prescription generally in Dalton v. Angus (1881) 6 App.Cas. 740 from acquiescence. The case concerned interpretation of Section 22(1) of the Commons Registration Act 1965. Section 22(1) defined town or village green as including ...land ... on which the inhabitants of any locality have indulged in [lawful] sports and pastimes as of right for not less than 20 years. It was observed that the inhabitants' use of the land for sports and pastimes did no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. 2. Inquiry into the particulars of Adverse Possession 19. Inquiry into the starting point of adverse possession i.e. dates as to when the paper owner got dispossessed is an important aspect to be considered. In the instant case the starting point of adverse possession and Other facts such as the manner in which the possession operationalized, nature of possession: whether open, continuous, uninterrupted or hostile possession - have not been disclosed. An observation has been made in this regard in S.M. Karim v. Mst. Bibi Sakina [1964]6SCR780 : 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 fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned: once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession. The ingredients of adverse possession have succinctly been stated by this Court in S.M. Karim v. Mst. Bibi Sakina [1964]6SCR780 in the following terms: ...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... [See also M. Durai v. Madhu and Ors. 2007 (2) SCALE 309 The aforementioned principle has been reiterated by this Court in Saroop Singh v. Banto and Ors. AIR 2005 SC 4407 stating: 29. In terms of Article 65 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 defendants possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak) 30. Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cquired right or title to the fisheries by adverse possession in the portion of river Cossye. In the aforementioned situation, it was held that the Limitation Act is indulgent to the Crown in one respect only, namely, in requiring a much longer period of adverse possession than in the case of a subject; otherwise there is no discrimination between the Crown and the subject as regards the requisites of adverse possession. The said decision is not of much assistance in this case. 22. In The Dalhousie Institute Society (supra), this Court found as of fact that the respondents were in open, continuous and uninterrupted possession and enjoyment of site for over 60 years. It was in that situation, the title of the defendant, in that behalf, was accepted. RIGHT TO PROPERTY AS HUMAN RIGHT 23. There is another aspect of the matter, which cannot be lost sight of. The right of property is now considered to be not only a constitutional or statutory right but also a human right. Declaration of the Rights of Man and of the Citizen, 1789 enunciates right to property under Article 17 : since the right to property is inviolable and sacred, no-one may be deprived thereof, unless pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpanies responded to the motion and importantly also issued further proceedings seeking possession of the disputed land. 29. The Grahams challenged the applicant companies' claims under the Limitation Act 1980 ( the 1980 Act ) which provides that a person cannot bring an action to recover any land after the expiration of 12 years of adverse possession by another. They also relied on the Land Registration Act 1925, which applied at the relevant time and which provided that, after the expiry of the 12-year period, the registered proprietor was deemed to hold the land in trust for the squatter. 30. It is important to quote here the judgment pronounced in favour of the Grahams [2000] Ch 676. The court held in favour of the Grahams but went on to observe the irony in law of adverse possession. According to the court, law which provides to oust an owner on the basis of inaction of 12 years is illogical and disproportionate . The effect of such law would seem draconian to the owner and a windfall for the squatter . The fact that just because the owner had taken no step to evict a squatter for 12 years, the owner should lose 25 hectares of land to the squatter with no compen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants moved the European Commission of Human Rights (ECHR) alleging that the United Kingdom law on adverse possession, by which they lost land to a neighbour, operated in violation of Article 1 of Protocol No. 1 to Convention for the Protection of Human Rights and Fundamental Freedoms ( the Convention ). 32. It was contended by the applicants that they had been deprived of their land by the operation of the domestic law on adverse possession which is in contravention with Article 1 of Protocol No. 1 to Convention for the Protection of Human Rights and Fundamental Freedoms ( the Convention ), which reads as under: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. 33. The European Council of Human ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery regarding the starting point of adverse possession: when can the possession be considered to have become adverse? In the facts and circumstances of this case, the possession of appellant was effected through the sale deeds, dated 11.04.1934 and 5.07.1936. Therefore, the alleged fact of adverse possession bears a pronounced backdrop of 1933 sale deed passing 1 acre 21 Guntas to the respondent. . 37. Are we to say that it is a sale with doubtful antecedents (1 acre 23 Guntas) sought to be perfected or completed through adverse possession? But that aspect of the matter is not under consideration herein. As has already been mentioned, adverse possession is a right which comes into play not just because someone loses his right to reclaim the property out of continuous and willful neglect but also on account of possessor's positive intent to dispossess. Therefore it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the paper-owner of the property. This test forms the basis of decision in the instant case. 38. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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