Civil Revision Application No.1287 of 2002

7th August, 2002

Petitioner Counsel: Shri. N.J. Patil
Respondent Counsel: Smt. G.P. MULEKAR

Cases Cited:
Secretary of State Vs. Debendra Lal Khan, AIR 1934 Privy Council 23 [Para 4,12]
Kshitish Chanda Bose Vs. Commissioner of Ranchi, AIR 1981 SC 707 [Para 4,12]
Radhamoni Debi Vs. The Collector of Khulna, ILR 27 Cal. 944 [Para 7]
P. Lakshmi Reddy Vs. L. Lakshmi Reddy, AIR 1957 SC 314 [Para 7]
Sheodhari Rai Vs. Suraj Prasad Singh, AIR 1954 SC 758 [Para 9]
State Bank of Travancore Vs. A.K. Panicker, AIR 1971 SC 996 [Para 9]
Thakur Kishan Singh Vs. Arvind Kumar, AIR 1995 SC 73 [Para 9]
The Fruit & Vegetable Merchants Union Vs. The Delhi Improvement Trust, AIR 1957 SC 344 [Para 15,16]
State of Himachal Pradesh Vs. Tarsem Singh, 2001 AIR SCW 3284 [Para 16]

JUDGMENT

Judgment :- Heard the learned Advocates for the parties. Rule. By consent, the rule made returnable forthwith.

2. The petitioners challenge the order dated 4th May, 2002 passed by the lower appellate Court rejecting the application for injunction filed by the petitioners during the pendency of the Appeal filed by them against the decree passed by the trial Court dismissing the suit. The suit was filed by the petitioners for declaration that the order passed by the respondents on 26th November, 1991 to be void abinitio and that the petitioners have become owners of the suit property by way of adverse possession and further for permanent injunction to restrain the respondents from disturbing from peaceful possession over the suit property.

3. Upon hearing the learned Advocates and on perusal of the record, it is seen that it is the case of the petitioners that the Petitioner No.1 was appointed as the supervisor by the Ex-Ruler of Kolhapur State in relation to the various properties including the suit house. The suit house was allowed to be occupied by the petitioner No.1 pursuant to his employment as the Supervisor. The petitioner No.1 retired from the service in the year 1972, but continued to occupy the suit house without any obstruction or objection on the part of the Ex-Ruler. It is further case that sometimes in the year 1972 a representative of the Ex-Ruler questioned the petitioner No.1 about his right or interest in or to the house while he was carrying out certain repairs to the suit house and it was informed to the said representative of the Ex-Ruler by the petitioner No.1 that the possession of the suit house was delivered to the petitioner No.1 for the occupation of the petitioners permanently and thereby had assigned even the ownership of the suit house. Inspite of the said communication, there was no objection on the part of the Ex-Ruler for continuation of the petitioner's occupation in the suit house even after his retirement. The property admeasuring about 300 Acres wherein the suit house exists came to be acquired by the State Government in the year 1986. Thereafter, notice was served upon the petitioners to vacate the suit house on the ground that the suit property had been acquired by the State Government. The petitioners, therefore, filed an application to the authorities bringing to their notice that though the land was acquired, the house in occupation of the petitioners was never acquired and the same belongs to the petitioner No.1 as it was given to the petitioner no.1 for his permanent residence and in any case the petitioners continued to occupy the said house without any objection even after the retirement of the petitioner No.1 since 1972 and the period of 12 years since then having passed, the petitioner No.1 had acquired title to the suit house by way of adverse possession. The application was rejected and, therefore, the petitioners filed the suit. The trial Court, however, dismissed the suit and the petitioners have filed the appeal against the decree of the dismissal of the suit and during pendency of the appeal, the petitioners filed an application for temporary injunction to restrain the respondent from disturbing possession of the petitioners in relation to the suit house but the same was rejected by the impugned order. Hence, the present appeal.

4. Assailing the impugned order, it was sought to be contended on behalf of the petitioners that undisputedly the petitioners continues to be in possession of the suit house since 1952 and inspite of retirement of the petitioner in the year 1972, he had continued to be in possession of the suit house without any objection on the part of the Ex-Ruler, the Court below ought to have considered that, prima-facie, the petitioners have established their claim in relation to the title to the suit house having acquired the same by way of adverse possession since the year 1984, and there was no disturbance whatsoever to the petitioners and the land was acquired by the State Government only in the year 1986. Being so, the petitioners had already acquired title by way of adverse possession prior to acquisition, mere acquisition of the land would not amount to the acquisition of the suit house which is in occupation and which belongs to the petitioners. Reliance is sought to be placed on the decision of the Privy Council in the matter of Secretary of State V/s Debendra Lal Khan reported in AIR 1934 Privy Council 23 and Kshitish Chanda Bose V/s Commissioner of Ranchi reported in AIR 1981 SC 707. It is further submitted by the learned Advocate for the petitioners that the testimony of the petitioner is supported by their witness PW1 which clearly establishes necessary hostility towards the title of the owner of the house by the petitioner No.1 and, therefore, the basic ingredient as regards the adverse possession had clearly been established and the Court below having ignored the same has acted illegally in refusing injunctive relief to the petitioners.

5. The perusual of the judgment of the trial Court which deals with the detailed analysis of the materials on record discloses that admittedly the suit house was allowed to be occupied by the petitioner No.1 and his family on account of his employment in the services of the Ex-Ruler. The petitioner No.1 was admittedly employed since the year 1952 and continued to be in the employment of Ex-Ruler till 1972. Once the evidence on record, prima-facie, discloses that the occupation of the suit house by the petitioner No.1 was on account of his employment with the Ex-Ruler, question of disclosing any hostility as such in relation to the occupation of the suit house during the tenure of his employment does not arise at all. Besides, the incident which has been stated to be disclosing the hostility by the petitioners towards the ownership right of the Ex-Ruler in relation to the occupation of the suit house in the year 1952 can hardly be believed. Admittedly, the petitioner No.1 has not disclosed any thing as regards the hostility as well as the name of the representative of the Ex-Ruler, who is stated to have visited the suit house when the petitioners were allegedly carrying out the repairs to the suit house. Undisputedly, there is no evidence produced in support of the claim of the petitioners that the suit house was being repaired by the petitioners in the year 1952 except the petitioner No.1's own statement and that of the witness PW2. Admittedly, PW2 himself has not carried out any repairs to the suit house nor has disclosed any reason for him to know about alleged repairs by the petitioner to the suit house in the year 1952. Undisputedly, the witness PW2 has disclosed the name of the representative of the Ex-Ruler as R.Y. Chavan. However, there is no explanation on record as to why his name was not disclosed by the petitioner no.1 himself. It is surprising that the petitioner did not know the name of the representative of the Ex-Ruler but his witness could disclose the said name. Apparently, it appears that it was an attempt to fill up the lacuna in the evidence by bringing on record the name of alleged representative of the Ex-Ruler through the testimony of PW2. The trial Court has, therefore, rightly disbelieved the testimony of the petitioner No.1 regarding the claim of the said repairs and the same being in the nature of hostility to the title of the Ex-Ruler to the suit house. That apart, the claim of the petitioner No.1 regarding the hostility having been exhibited by him in relation to the enjoyment to the suit house since the year 1952, is contrary to his own pleadings regarding plea of acquisition of title by adverse possession in asmuchas that it is the case of the petitioner No.1 himself that occupation of the suit house initially was on account of his employment with the Ex-Ruler and it is only after his retirement that during the period of 12 years there was no obstruction whatsoever to the petitioners to occupy the suit house and that therefore, the petitioners are entitled to claim acquisition of title by adverse possession to the suit house. Being so, the alleged acts of the hostility prior to the year 1972 can be of no help to claim the title to the suit house by way of adverse possession. Undisputedly, there is no record to disclose that the petitioner had been enjoying the suit house with the hostility to the title by the Ex-Ruler in relation to the suit house from the year 1972 till 1984. Not a single incident has been disclosed by the petitioners by which the Ex-Ruler was made known that the petitioner No.1 had continued to occupy the suit house since 1972 onwards denying the rights of the Ex-Ruler to the suit house. It is well established by the Court that in order to claim the title by way of adverse possession, the party has to specifically plead all the necessary ingredients of the adverse possession and has to establish the same. The petitioners having not done so, prima-facie, there was no case made for grant of any relief of temporary injunction against the respondents on the alleged ground of acquisition of title to the suit house by way of adverse possession.

6. Undoubtedly, the petitioners continued to be in occupation of the suit house, even after his retirement from the services of the Ex-Ruler. Undisputedly, the petitioner No.1 retired from his service in the year 1972. Similarly it is also evident from the records that the property wherein the suit house exist was acquired by the Government in the year 1986. Apparently, the petitioners continued to occupy the suit house for a period over 12 years even after the retirement of the petitioner No.1 from the employment with the Ex-Ruler. In such circumstances, can it be said that possession of the suit premises over a statutory period by itself would be sufficient to succeed in the plea of adverse possession ?

7. In Radhamoni Debi Vs. The Collector of Khulna and others reported in ILR 27 Cal. 944 the Privy Council had held that possession required must be adequate in continuity, in publicity, and in extent to show that it is possession adverse to the competitor. This view finds support from the decision of the Apex Court in the matter of P. Lakshmi Reddy Vs. L. Lakshmi Reddy reported in AIR 1957 SC 314.

8. The essential ingredients of adverse possession are actual and continuous possession alongwith necessary animus on the part of the person intending to perfect his title to the property by adverse possession. The possession of the property with the bonafide belief that the same belongs to him would disclose absence of necessary animus for perfecting the title by adverse possession in relation to such property. Unless the enjoyment of the property is accompanied by adverse animus, mere possession for a long period, even over a statutory period, would not be sufficient to mature the title to the property by adverse possession. Certainly, these essential ingredients of adverse possession are to be established by the person claiming acquisition of title to a property by adverse possession.

9. It is also pertinent to note that the petitioners do not dispute the fact that their entry in the suit house was on account of employment of the petitioner No.1 with the owners of the suit house. It is, therefore, the case of the petitioners themselves that they are allowed to occupy the suit house by its owners. In other words, it was a permissive possession of the suit house with the petitioners. The permissive possession will always continue to be permissive till and until the licensee asserts and proves the assertion of adverse possession. Such assertion and the proof in that regard should necessarily be for a continuous period of twelve years. The Apex Court in Sheodhari Rai and others Vs. Suraj Prasad Singh and others reported in AIR 1954 SC 758 has clearly held that where possession is proved in its origin to be permissive, it will be presumed that it continued to be of the same character until and unless some thing occurred to make it adverse. The Supreme Court has further held in State Bank of Travancore Vs. A.K. Panicker reported in AIR 1971 SC 996 that there must be open and explicit disavowal and disclaimer brought to the knowledge of the owner. Mere possession for however length of time does not result in converting the permissive possession into adverse possession, as has been ruled by the Supreme Court in Thakur Kishan Singh Vs. Arvind Kumar reported in AIR 1995 SC 73. The permissive possessor has necessarily to prove some overt act on his part indicating assertion of hostile title. It is well said that permissive possession and hostile animus operate in conceptually different fields, and the permissive possession does not become adverse by a mere change in the mental attitude of the person in possession and it is for such person to prove from which date the permissive possession became hostile.

10. As rightly observed by the trial Court the petitioners had also not joined the owners i.e. Ex-Ruler as the party defendent to the suit so as to establish their case of adverse possession. It was sought to be contended that the property having been acquired in the year 1972 there was no question of joinder of Ex-Ruler as the party to the suit. Undisputedly, the plea of adverse possession is not against the Government but against the Ex-Ruler and, therefore, it was necessary for the petitioners to join the Ex-Ruler as the party defendant to the suit in order to establish their plea of acquision of title by way of adverse possession.

11. Apparently, therefore, the petitioners have failed to establish acquisition of title by adverse possession and, therefore, the trial Court dismissed the suit. In the appeal, at the interim stage of hearing of the appeal, the petitioners having prima-facie failed to show that the finding on the relevant aspects of the matter to be either perverse or contrary to the materials on record and also failed to establish prima-facie that the petitioners had acquired the title to the suit house by way of adverse possession.

12. The decisions sought to be relied upon by the learned Advocate for the petitioners are of no assistance in the case in hand. In Secy. of State V/s Debendra Lal's case (supra) the privy Council had ruled that, for adverse possession it is sufficient that the possession is overt and without any attempt at concealment so that the person against whom time is running ought, if he exercises due vigilance, to be aware of what is happening. It is further 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 in the statute between the Crown and the subject as regards the requisites of adverse possession. Referring to the facts of the case, it was clearly observed therein that, "The Crown in the case of fishery belonging to it exercises its rights by granting leases or licenses to fish; it does not itself fish. Consequently the granting by a person other than the Crown of leases or licenses to fish in the case of a fishery which prima facie belongs to the Crown, is evidence of the usurpation by that person of the distinctive rights of the Crown, and is thus most significant evidence of adverse possession. Where a fishery is claimed in a navigable river which is open to the public for the purposes of navigation, the proprietor cannot exclude the public from it at any time, and it is practically impossible to prevent occasional encroachments on its right." Apparently, all the observation by the Privy Council were in the facts of the said case wherein a person had sought to lease out or grant licence to fish in a navigable river which in fact belonged to the Crown.

So also in Kshitish Chandra Bose's case (supra) the Apex Court has held that, the view taken by the High Court that as the land in question consisted of a portion of the tank or a land appurtenant thereto, adverse possession could not be proved was a wrong view and it was ruled that if a person asserts a hostile title even to a tank which, as claimed by the municipality as belonging to it and despite the hostile assertion of title by the appellant therein, no steps were taken by the owner (namely, the municipality in the said case), to evict the trespasser, his title by prescription would be complete after thirty years. Certainly stranger was not in use and enjoyment of that tank on account of his employment with the municipality. Being so, both the decisions given in a different set of facts are of no assistance to the petitioners in the case in hand.

13. Undisputedly, the land wherein the house in question exists was acquired by the State Government in the year 1986. Considering the provisions of law contained under Section 16 of the Land Acquisition Act, it is abundantly clear that once the land is acquired by the Government it vests in the State free from all encumbrances.

14. Even if any person is left without payment of compensation to him towards his interest in the land, the only remedy for him would be either to seek compensation from the State Government or from other person who might have collected the compensation in relation to his interest in such land. But apart from that, no occupant of such land could continue to claim subsisting interest in the land so as to continue to occupy the same once the land vested in the Government pursuant to its acquisition. The house in question was admittedly belonging to the Ex-Ruler. The properties wherein the house exists has already been acquired by the State. Apparently, all the things attached to the earth in or over the land acquired forming a part of the land which were belonging to the Ex-Ruler stood acquired alongwith the land. As already seen above, the petitioner has failed to establish any independent right or interest in or to the suit house. Being so, in the facts and circumstances of the case in hand, the house in question even though it was in permissive possession of the petitioners, the petitioners can not insist to continue to occupy the suit house and have to deliver the possession thereof to the State Government.

15. While interpreting the expression "vest absolutely in the Government free from all encumbrances", in Sec.16 of the Land Acquisition Act, 1894, the Apex Court in The Fruit & Vegetable Merchants Union V/s The Delhi Improvement Trust reported in AIR 1957 SC 344 has held that :

"In the cases contemplated by Ss.16 and 17 the property acquired becomes the property of Government without any conditions or limitations either as to title or possession."

16. Following the above referred decision in The Fruit & Vegetable Merchants Union's case (supra) and while interpreting the words, "vest in State free from all encumbrance" occurring in sec.3 of Himachal Pradesh Village Common Lands Vesting and Utilisation Act (1974) in the matter of State of Himachal Pradesh Vs. Tarsem Singh and others reported in 2001 AIR SCW 3284, the Apex Court has observed thus :

"The words 'encumbrances' means a burden or charge upon property or a claim or lien upon an estate or on the land. 'Encumber' means burden of legal liability on property, and, therefore, when there is encumbrance on a land, it constitutes a burden on the title which diminishes the value of the land."

And has further ruled that :

"Thus where the land vests absolutely free from all encumbrances not only the rights in the land vest in the State but possession of the land also."

And further referring to the issue in the matter before the Apex Court as to whether the encumbrances would include easementary right, it was held that :

"When the legislature has used the expression 'free from encumbrances', it means the vesting of land in the State is without any burden or charge on the land, including that of easementary right. We are, therefore, of the view that the consequence of vesting of right in the land free from all encumbrances is that the interest, right and title to the land including the easementary right stood extinguished and such rights vested in the State from all encumbrances."

17. Apparently, therefore, there was no, prima-facie, case made out by the petitioners for grant of any injunctive relief in the matter. The trial Court having analysed the materials on record in detail and petitioners having failed to make out any case in support of their contention, and further no material having been placed by the petitioners before the lower appellate Court to justify their claim, no fault can be found with the impugned order dismissing the application for temporary injunction filed by the petitioners.

18. In spite of law on the point being very clear, it is apparent that the petitioners have been illegally withholding the possession of the suit house and creating hurdles to the State Government in taking appropriate decision regarding development of the land which has been acquired for rehabilitation to flood affected people. In the circumstances, the petition deserves to be dismissed with costs. Hence, the petition is hereby dismissed and the rule is discharged with costs of Rs.2,000/- (Rupees two thousand, only) to be paid by the petitioners to the respondent No.1.

Petition dismissed.