Supreme Court of India
BANGALORE DEVELOPMENT AUTHORITYversusN. JAYAMMA
- Citation
- 2016 INSC 256
- Decided
- 10 March 2016
- Disposal
- Appeal(s) allowed
- Bench
- A K SIKRI
Holding
The respondent failed to establish the requisite elements of adverse possession, and therefore her claim of title by prescription was dismissed.
Summary
The Bangalore Development Authority (BDA) acquired land under the Land Acquisition Act, 1894, but the original owner retained actual possession and later sold the parcel to N. Jayamma in 1994. Jayamma built a house and, after more than twelve years, sued for a declaration of title on the basis of adverse possession. The BDA contended that the land vested with the government in 1988, that possession was not continuous because BDA officials demolished the structure in 2001, and that the statutory limitation period for adverse possession was thirty years, not twelve. While the trial court and the Karnataka High Court held in favor of Jayamma, the Supreme Court found that she failed to prove the essential elements of adverse possession—peaceful, open, continuous, and hostile possession—for the required period, noting the interruption caused by the demolition. Consequently, the Supreme Court allowed the BDA's appeal and dismissed Jayamma's suit.
Issues considered
- Whether the respondent proved continuous, peaceful, and hostile possession for the statutory period to perfect title by adverse possession.
- Whether the demolition of the structure by BDA officials in 2001 interrupted the alleged possession.
- Whether possession can be counted from the date of the Mahazar (paper possession) or only from actual physical possession.
- Whether the limitation period for adverse possession is twelve years or thirty years under the Limitation Act, 1963.
- Whether the land, having vested in the government under the Land Acquisition Act, could be validly sold to the respondent.
- Whether equity considerations under the BDA Act or the 2013 Land Acquisition Act are relevant to the civil suit.
Legislation cited
Subjects
adverse possessionland acquisitionpossessionlimitation periodBangalore Development Authoritytitle by prescriptiondemolitionequity
Judgment
[2016] 4 S.C.R. 583
BANGALORE DEVELOPMENT AUTHORITY A
v.
N. JAYAMMA
(Civil Appeal No. 2238 of2016)
MARCH 10, 2016
B
[A.K. SIKRI AND R.K. AGRAWAL, JJ.]
Adverse Possession ~Suit for declaration of title perfected
by adverse possession - Filed by purchaser of the land which was
already acquired under Land Acquisition Act - However, actual
possession whereof remained with the original owner - Suit decreed C
- Decree affirmed by High Court - On appeal, held: Plaintiff had
herself admitted that the officials of the appellant-Authority
(acquisition beneficiary) came to the suit property and demolished
the structure - Thus the possession was not unhindered, peaceful
and continuous - Plaintifffailed to prove title by adverse possession
- Suit liable to be dismissed. D
Allowing the appeal, the Court
HELD: 1. The respondent-plaintiff had herself admitted that
the officials of the appellant-Authority bad come to the suit
property and demolished the existing structure. This act of the
Authority would amply demonstrate that there was no unhindered, E
peaceful and continuous possession of the suit land. [Para 22)
[599-B-CJ
2. The plea of equity that when the Authority itself is created
for the purpose of formation of layouts and allotment of sites to
the members of the public, the respondent should not be F
dispossessed when she is in continuous possession of the suit
property, would not be the relevant considerations in the present
case. The present appeal arises out of civil proceedings filed in
the form of a suit by the respondent and once it is found that the
respondent has not been able to prove title by adverse possession,
no such aspects, not coming within the scope of the suit G
proceedings, can be looked into. [Para 23) [599-D-E]
M. Venkatesh & Ors. v. Commissioner, Bangalore
Development Authority (2015) 10 Scale 27; P.T.
Munichikkanna Reddy & Ors. v. Revamma & Ors. 2007
(5) SCR 491: (2007) 6 sec 59 - relied on. H
583
584 SUPREME COURT REPORTS [2016] 4 S.C.R.
A John B. James & Ors. v. Bangalore Development
Authority & Anr. ILR 2000 KAR 4134 - held
inapplicable.
UP. Jal Nigam v. Kalra Properties Pvt. Ltd. 1996 (1)
SCR 683 : (1996) 3 SCC 124; Ajay Kishan Singhal v.
B Union of India 1996 (4) Suppl. SCR 319: (1996) 10
sec 721; Mahavir & Am: V. Rural Institute, Amravati
& Anr. 1995 (2) Suppl. SCR 421 : (1995) 5 SCC 335;
Gian Chand v. Gopala & Ors. (1995) 5 SCC 528;
Meera Sahni v. Lieutenant Governor of Delhi & Ors.
2008 (10) SCR 1012: (2008) 9 SCC 177; Tika Ram v.
C State of Uttar Pradesh 2009 (14) SCR 905 : (2009) 10
SCC 689; Tamil Nadu Housing Board v. A. Viswam (D}
by Lrs. 1996 (2) SCR 881: (1996) 2 SCC 634; Larsen
& Toubro Ltd. v. State of Gujarat & Ors. 1998 (2) SCR
339 : (1998) 4 SCC 387; Karnataka Board of Wakf v.
D Government of India 2004 (1) Suppl. SCR 255: (2004)
10 SCC 779; Rama Shankar & Anr. v. Om Prakash
Likhdhari & Ors. (2013) 6 ADJ 119; Ba/want Narayan
Bhagde v. MD. Bhagwat 1975 (0) Suppl. SCR 250 :
(1976) 1 SCC 700; NTPC Ltd. v. Mahesh Dutta 2009
(10) SCR 1084 : (2009) 8 SCC 339; Raghbir Singh
E Sehrawat v. State of Haryana 2011 (14 ) SCR 1113 :
(2012) 1 sec 792 - referred to.
Case Law Reference
(2015) 10 Scale 27 relied on Para7
F
1975 (0) Suppl. SCR 250 referred to Para 13
2009 (10) SCR 1084 referred to Para 13
2011 (14) SCR 1113 referred to Para 13
1?96 (1) SCR 683 referred to Para 18
G 1996 (4) Suppl. SCR 319 referred to Para 18
1995 (2) Suppl. SCR 421 referred to Para 18
(1995) 5 sec 528 referred to Para 18
2008 (10) SCR 1012 referred to Para 18
H 2009 (14 ) SCR 905 referred to Para 18
BANGALORE DEVELOPMENT AUTHORITY v. N. JAYAMMA 585
1996 ( 2) SCR 881 referred to Para 18 A
1998 ( 2 ) SCR 339 referred to Para 18
2004 (1) Suppl. SCR 255 referred to Para 18
2007 (5) SCR 491 relied on Para 20
(2013) 6 ADJ 119 referred to Para 21 B
ILR 2000 KAR 4134 held inapplicable Para 22
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2238
of2016.
From the Judgment and Order dated 10.08.2011 of the High Court c
of Kamataka at Bangalore in Regular First Appeal No. 1279 of 2006.
S. K. Kulkarni, M. Gireesh Kumar, Ankur S. Kulkarni, Advs. for
the Appellant.
P. Vishwanath Shetty, Sr. Adv., P. Venkat Reddy, Mahesh Thakur,
Prashant Kr. Tyagi, Advs. for the Respondent. D
The Judgment of the Court was delivered by
A.K. SIKRI, J. 1. The instant appeal, which has travelled to
this Court, had its origin in a suit filed by the respondent in the Court of
City Civil Judge, Bangalore. The _said suit was filed by the respondent
herein for declaration of title to the suit property situated in Sy. No. 76/ E
1. It was claimed by the respondent that she had purchased the property
on June 22, 1994 ad-measuring East to West-60 ft. and North to South
- 50 ft. (hereinafter referred to as the 'suit property') from its previous
owner and had constructed a building thereupon. The aforesaid suit
property, which was part of Sy. No. 76/I comprising 4 acres 31 guntas F
(hereinafter referred to as the 'scheduled property'), was acquired by
the State Government for Bangalore Development Authority-appellant
herein (for short, 'the BDA'), for which Notification under Section 4 of
the Land Acquisition Act, 1894 (for short, 'the Act') was is.sued on
December 15, 1984 followed by a declaration under Section 6 of the Act
on October 29, 1986. Purportedly, possession thereof was handed over G
to the BDA on August 30, 1988 vi de Mahazar (Exhibit D-4 ). However,
it appears that the actual possession of the suit property remained with
the original owner who then sold it to the respondent in the year 1994, as
stated above. It is on this basis that the respondent filed the suit on the
ground that she was in possession of the said property for more than 12 H
586 SUPREME COURT REPORTS [2016] 4 S.C.R.
A years even after the acquisition thereof by the State Government and, in·
this manner, she had perfected her title by adverse possession. Thus,
the relief claimed in the suit was for declaration that the respondent had
become the owner thereof.
2. The appellant contested the said suit by raising the plea that
since the scheduled property had been acquired by the Government for
B
formation of the layout and with effect from the date of final notification
entire land vested with the Government, the respondent was precluded
from claiming the possession thereof on the ground that it was already
with her. It was also contended that the Government had handed over
the possession of the land in question to the BDA on August 30, 1988
c and BOA was in legal possession thereof. It was also submitted that
once Notification under Section 4 of the Act was issued on December
15, 1984 and even declaration under Section 6 was issued on October
29, 1986, it was not permissible forthe original owner to sell the acquired
land to the respondent herein on June 22, 1994. It was also contended
that as the land vested with the Government, in any case, the limitation
D
under Article 112 of the Limitation Act, 1963 was 30 years and not 12
years and, therefore, the respondent could not claim adverse possession
before the expiry of 30 years.
3. The trial court, on the basis of the pleadings, framed the following
issues:
E "(I) Whether the plaintiff proves that she and her predecessors
in title have been in continuous possession and enjoyment of the
suit schedule property since more than 12 years, adverse to the
interest of the defendant as pleaded in the plaint?
(2) Whether the plaintiff proves that she had perfected her title
F to the suit schedule property by way of adverse possession as
pleaded in the plaint?
(3) Whether the plaintiff proves that the defendant and his officials
are unlawfully interfering with her possession of the suit schedule
property as alleged in the plaint?
G ( 4) Whether the plaintiff proves that she is entitled for the
declaration of title to the suit schedule property as sought for in
the suit?
(5) Whether the plaintiff proves that she is also entitled for the
grant of permanent injunction against the defendant as ought for
H in the suit?"
BANGALORE DEVELOPMENT AUTHORITY v. N. JAYAMMA 587
[A. K. SIKRJ,, J.]
4. Evidence was led and arguments heard, which resulted in A
passing ofjudgment and decree dated April 07, 2006 by the Additional
•
City Civil Judge, Bangalore. All the issues were decided in favour of the
respondent herein, on the basis of which suit was decreed in her favour
declaring that she is the owner in possession of the suit property having
perfected her title by ·way of adverse possession. As a consequence,
B
decree of permanent injunction was also passed restraining the appellant
- BDA, its officials and agents, etc. from alienating the suit property
either by way oflease, public auction or by allotting the same in favour
of any third party or from interfering with the peaceful possession and
enjoyment of the said property by the respondent. This judgment and
decree was appealed against by the appellant before the High Court by c
filing Regular First Appeal No. 1279 of2006. The High Court has, vide
impugned judgment, affirmed the decree passed by the trial court thereby
dismissing the appeal of the appellant.
5. Attacking the judgment and decree passed by the trial court
and affirmed by the High Court, learned counsel for the appellant D
submitted that even ifit is presumed that limitation period for claiming
adverse possession is 12 years, in the instant case, that ingredient has
not been satisfied by the respondent even on the basis of admitted facts.
In this behalf, it was argued that as per the respondent's own shoWing,
she had purchased the area of 60 ft. x 50 ft. out of the acquired land on
June 22, 1994. She 1 thus, came into possession in the year 1994. He E
further pointed out that in the plaint itself, the respondent had averred
that there was some existing construction and she had applied for
regularisation of the said existing construction on July 25, 1994. Further,
in para 10 of the plaint, the respondent admitted that the officials of the
appellant had come to the suit, properly accompanied by Police force, F
and demolished the existing construction. He drew our attention to the
following averments in the plaint to the aforesaid effect:
"In spite of the above stated facts, the BDA andjts officials without
any kind of notice and with the help of a large contingent of police
force accompanied by the officials and workmen including the G
Commissioner, BOA and all of a sudden they have illegally
trespassed over the suit schedule property on 24.04.2001 and
interfered over the same and demo! ished the existing construction
buildings as well as her business therein on 24.04.2001 with the
aid of bulldozers and such other machinery, equipments .... "
H
588 SUPREME COURT REPORTS [2016) 4 S.C.R.
A 6. It was, thus, argued that after purchase of the land on June 22,
1994, the respondent remained in possession for barely 7 years when
she was dispossessed, even as per the respondent's own showing and
the suit filed on August 06, 2001 claiming adverse possession on the
ground that she was in possession for 12 years, was incompetent. It
was further submitted that as per the aforesaid pleadings in the plaint, it
B
was clear that on the date of filing the suit, the respondent was not in
possession nor was there any structure on the suit land and the question
of claiming adverse possession, thus, did not arise.
7. Learned counsel also argued that in order to lay claim of
ownership on the basis of adverse possession, it has to be proved that
c such adverse possession is open and uninterrupted to the enjoyment of
the defendant-Authority for more than 12 years, which essential
requirement had not been satisfied. For this proposition, the learned
counsel placed heavy reliance upon a recent judgment of this Court in
M. Venkatesll & Ors. v. Commissioner, Bangalore Development
D Autllority. 1
8. We may note at this stage that in arriving at a finding that the
respondent was in possession of suit property for more than 12 years,
the courts below have calculated the period from August 30, 1988, namely,
the date on which possession was taken under a Mahazar (Exhibit 0-
4) by the State Government and handed over to the BOA. Learned
E counsel for the BOA pleaded that the aforesaid approach of the courts
below was wholly erroneous as the respondent, as per her own showing,
came to possess the suit property only after the purchase thereof on
· June 22, 1994. He also submitted that, in any case, sale in favour of the
respondent in the year 1994 was void ab initio as the title had already
F been vested in the BOA and the original owner who had purportedly
sold the property to the respondent was no longer owner thereof and
had no right to sell the same. Learned counsel argued that even this
aspect is squarely covered by the aforesaid judgment in the case ofM.
Venkatesh (supra). Learned counsel also pointed out that after the
structure was demolished in the year 2001 by the BOA, as admitted by
G the respondent herself, the site in question was auctioned by the appellant
on August 06, 2001 and sale deed was duly executed, which was proved
before the trial court as Exhibit P-26.
9. Per contra, learned counsel for the respondent submitted that
the respondent had led sufficient evidence to establish that she had been
1 (2015)10 Scale 27
H
BANGALORE DEVELOPMENT AUTHORITY v. N. JAYAMMA 589
[A. K. SIKRI, J.]
in continuous possession, which remained uninterrupted, and on the basis A
of this evidence a categorical finding was arrived at by the trial court to
the effect that the respondent has perfected her title in respect of the
suit property by way of adverse possession. This submission was
elaborated by arguing that even when the schedule property was acquired
by issuing requisite notifications and passing of the award, possession of
B
the suit property was never taken by the BOA, which continued to be in
possession of the vendor, from whom the respondent purchased the
property vide sale deed dated June 22, 1994, and thereafter she had
been in possession of this property. It was submitted that these were
findings of facts arrived at on the basis of evidence produced on record
which do not warrant any interference. It was also submitted that c
Mahazar (Exhibit D-4) dated October 13, 1988 was only a paper
possession and no actual possession had been taken, which also stood
proved not only by the evidence led by the respopdent, but even from
the statements of DW-1 and DW-2, who were examined on behalf of
the BOA. Learned counsel further pointed out that there was not even
D
an iota of evidence adduced on behalf of the BOA that the possession of
the suit property was taken on the date of Mahazar (Exhibit D-4) or
subsequently thereafter.
10. Insofar as claim of continuous, uninterrupted and peaceful
possession for a period of more than 12 years is concerned, it was the
submission of the learned counsel for the respondent that possession of E
the respondent shall not be counted from the date of the sale deed, i.e.
June 22, 1994, in her favour, but the earlier period during which the
vendor was in possession also needs to be counted and the courts below
were right in computing the period of 12 years from the date of Mahazar
(Exhibit D-4) dated October 13, 1988. A fervent plea was made that if F
the impugned judgment is reversed, the respondent and the members of
her family will be deprived of their only shelter, which would amount to
taking away their right to property guaranteed h? them under Article
300A of the Constitution of India. It is stated that there was a fully
developed structure (house) (Exhibits P-22 to Pc25) on the suit property
and the building was constructed after obtaining permission and licence G
from Agara Gram Panchayat and regularly taxes were paid with respect
to the suit property and Khatha also stands in favour of the respondent.
It was submitted that at no point of time the BOA took possession of the
property in question from the vendor or the respondent. It was also
argued that the BOA being a statutory authority created for the purpose H
590 SUPREME COURT REPORTS [2016) 4 S.C.R.
A of formation of layouts and allotment of sites to the members of the
pubic, even in equity it was not proper, just or fair to deprive the respondent
of her only source of shelter. The very objective of the BOA is to
provide shelter to the members of public. The counsel, thus, pleaded
that this Court should not exercise its extraordinary power under Article
136 of the Constitution even if the judgment impugned suffers from any
B
error ifthe said judgment will not bring about any unjust result.
11. Another submission of the learned counsel for the respondent
was that the very purpose for which the land was acquired was to prepare
a scheme for allotment of the houses to the members of the public. As
per Section 27 of the Bangalore Development Authority Act, 1976, such
c a scheme had to be prepared within five years from the passage of the
award, but the BOA had failed to do so resulting in the lapsing of the
scheme. This was yet another reason, according to the respondent, for
not interfering with the decree passed in favour of the respondent.
12. Tracing the history of the present litigation, learned counsel
D for the respondent referred to the judgment of the Karnataka High Court
in John B. James & Ors. v. Bangalore Development Authority &
Anr. ~ Delivering the judgment in that case, in a batch of writ petitions
which were filed by the respondent and several others, the High Court,
after elaborately considering the rival contentions of the parties, had
E directed the writ petitioners, including the respondent herein to approach
the civil court to establish their claim that they had perfected their title to
. the suit property by adverse possession, as is clear from the following
passage therefrom:
"85. Where the petitioners claim that they are in settled possession
F for more than 12 years after the land had vested in BOA, it is
open to them to approach the Civil Court for a declaration of title
by establishing adverse possession for more than 12 years."
13. Learned counsel for the respondent joined issue qua the
arguments of the appellant predicated on the judgment of this Court in
M. Venkatesh case with the submission that the said judgment had
G
absolutely no application to the facts of the present case as the said case
relates to the vacant house site and construction of building after
dispossession, which was not the position in the instant case. On the
other hand, he referred to the followingjudgments of this Court wherein
symbolic/paper possession is held to be no possession in the eyes oflaw
H 2
!LR 2000 KAR 4134
BANGALORE DEVELOPMENT AUTHORITY v. N. JAYAMMA 591
[A. K. SIKRI, J.]
and it is the actual possession under relevant rules which matters: A
(i) Balwant Narayan Bltagde v. M.D. Bltagwaf
(ii) NTPC Ltd. v. Ma/1es/1 Dutta•
(iii) Ragltbir Singlt Seltrawat v. State of Hary<1na 5
14. Learned counsel for the respondent even referred to the B
provisions of the Right to Fair Compensation and Transparency in Land
Acquisition Rehabilitation and Resettlement Act, 2013, and in particular
sub-section (2) of Section 24 which lays down specific period within
which the possession is to be taken of the property after acquisition and
when no such possession was taken, the acquisition lapses.
15. In the first blush, argument of the learned counsel for the
respondent, viz., there is a finding of fact that respondent and her
predecessors-in-title have been in continuous possession and enjoyment
of the suit property for more than 12 years and, therefore, the respondent
has perfected her title by adverse possession, appears to be attractive. D
It may appear to be a finding of fact simplicitor. However, an indepth
analysis of the issue would manifest that the matter cannot be brushed
aside with such a simplisitic overtone. In fact, the detailed discussion
that follows would amply demonstrates that the manner in which the
issue has been approached by the courts below is itself erroneous and
legally unsustainable. For this, we are not even required to discuss various E
nuances of the issue as the judgment of this Court in M. Venkates/1 has
done this exercise whereby same issue has been directly and squarely
dealt with which arose in almost similar circumstances. Therefore, it
would be apt to discuss the facts of that case as well as law laid down
therein which would provide answers to many arguments raised by the
F
parties before us.
16) In M. Venk<1teslt (supra) as well, land was acquired by the
State Government ofKarnataka and given at the disposal of the BDA.
Preliminary Notification was issued on July 17, 1984 and final Notification
dated November 28, 1986 was published on December 25, 1986.
G
Determination of amount of compensation payable to the landowners.
having been approved by the competent authority on August 21, 1986,
the BDA claimed that possession of the land was taken over from the
'(1976) 1sec100
'(2009) s sec 339
'(2012) 1sec792 H
592 SUPREME COURT REPORTS [2016) 4 S.C.R.
A landowners and handed over to the engineering section of the BDA by
drawing a possession Mahazar on November 06, 1987. A Notification
under Section 16(2) of the Act was also published-in the Karnataka
Gazette dated July 04, 1991 which, according to the BDA, signified that
the land in question stood vested with the BDA free from all encumbrances
whatsoever. Here also, after taking of the aforesaid steps by the BDA,
B
the original land owners of the acquired land sold the said land to different
persons after carving out the sites/plots. When the actual possession
was sought to be taken, the said subsequent purchasers (like the
respondent in the instant appeal) filed writ petitions in the High Court.
Their writ petitions, along with the writ petition of the respondent herein
c and some others, were the subject matter of the judgment of the Division
Bench of the High Court in John B. James's case (supra). Like the
respondent herein, the individuals/subsequent purchasers in the case of
M. Venkatesh (supra) were also relegated to the civil court giving them
permission to file the suit if they were claiming adverse possession. Five
such suits were the subject matter of the judgment in M. Venkates/1
D
(supra). The trial court had, in fact, clubbed these suits which were
decided together and decreed. The issues framed in those suits were
almostthe same to the ones framed in the civil suit filed by the respondent
herein, as is clear from the issues which were settled by the trial court in
those cases:
E "(!) Whether the Plaintiffs prove that, they have acquired and
perfected their alleged title to the suit schedule properties by virtue
of the alleged law on adverse possession, as claimed?
(2) Whether the Plaintiffs prove their alleged lawful possession
.F and enjoyment of the suit schedule properties, as on the date of
the suit?
(3) · Whether the Plaintiffs further prove the alleged illegal
interferences and obstructions by the defendant?
(4) Whether the defendant proves that, the suit schedule properties
is duly acquired by the defendant, in accordance with law and as
G
such, the same have stood vested with the defendant, free from
all the encumbrances?
(5) Whether the Plaintiffs are entitled to the suit relief of
declaration and injunction, against the defendant?
(6) What Order or Decree?"
H
BANGALORE DEVELOPMENT AUTHORITY v: N. JAYAMMA 593
[A. K. SIKRI, J.]
17. In that case also the trial court had recorded the findings that A
those plaintiffs were in lawful possession on the date of the suit, such
possession was for more than 12 years and, thus, the plaintiffs had
perfected their title to the schedule properties by way of adverse
possession. The BDA filed appeals against the decree passed by the
trial court. Four appeals were allowed wherein the High Court held that
B
the trial court was wrong in recording the finding that those four plaintiffs
had established their possession. It was noticed that the plaintiffs in
those appeals were claiming settled possession of vacant piece of land,
which was clearly impermissible. The High Court found that there was
no dispute that all the structures on the suit properties, relevant to those
suits, had been demolished and that the land was a vacant piece ofland c
all along and at all material times, including on the {!ate of filing the suit
as well as on the date ofjudgment. These four plaintiffs had filed appeals
which were dismissed by this Court in M. Ve11kates/z (supra) approving
the view taken by the High Court in the said four appeals. Insofar as
decision in those four cases is concerned, it may not be very relevant as
D
inthe instant case it is not the vacant land with which we are concerned.
However, what is relevant for us is the discussion in the fifth appeal
which was filed by the BDA in the High Court wherein the High Court
had affirmed the decree passed in favour of the plaintiff. The High
Court noticed that in the said case the plaintiffs were running a saw mill
which was in operation long prior to the filing of the suit and which E
continued to be in existence even on the date of the suit as well as on the
date of the judgment of the High Court. Keeping in view the aforesaid
position, the High Court relied upon its Division Bench judgment in Jolin
B. James's case (supra) and held that the plaintiff therein was entitled
to protection against attempted eviction by the BDA. On this basis,
F
decree passed by the trial court was affirmed. This judgment of the
High Court was also appealed against, which also became the subject
matter of discussion in M. Venkates/z (supra). Pertinently, this Court
allowed the appeal of the BDA and set aside the aforesaid judgment of
the High Court and reversed the decree passed by the trial court, thereby
holding that even in this case the plaintiff was not entitled to any G
protection.
18. Following reasons can be culled out in taking the aforesaid
view by this Court:
(a) The plaintiff therein had purchased the property from the
H
594 SUPREME COURT REPORTS [2016] 4 S.C.R.
A original owners in terms of sale deed dated August 22, 1980, which was
long after the issuance of the preliminary notification published in July
1984. Such a sale was clearly void and non est in the eyes of law,
opined the Court. rn arriving at this conclusion, it referred to earlier
decisions of this Court in U.P. Jal Nigam v. Kalra Properties Pvt.
Ltd. 6 ; Ajay Kislian Singh al v. Union of India'; Maliavir & Am: v.
B
Rural Institute; Amravati & Anr. 8 ; Gian Chand v. Gopala & Ors. 9 ;
Meera Sahni v. Lieutenant Governor of Del/ti & Ors. 10 ; and Tika
Ram v. State of Uttar Pradeslt 11 •
(b) As on the date of suit, the plaintiffs had not completed 12
years in possession of the suit property so as to entitle them to claim
c adverse possession against the BDA, the true owner. This finding was
given on the basis that the plaintiffs could count the period of the so-
called adverse possession only from the date they purchased the property
and the period for which the original vendor held the property, or for that
matter the date of Mahazar, could not be counted.
D ( c) The Court also rejected the argument of the plaintiffs that
possession of the land was never taken. In this behalf, the Court took
the view that one of the settled mode of taking possession is by drawing
a panchnama, which part had been done to perfection according to the
evidence led by the BDA. For this, the Court referred to the judgments
E in Taf!lil Nadu Housing Board v. A. Viswam (D) by Lrs. 11 and Larsen
& Toubro Ltd. v. State of Guiarat & Ors. 13
(d) Most pertinently, the Court also held that the plaintiffs could
not claim adverse possession as, on the facts of that case, it could not
be said that possession of the plaintiffs was peaceful, open, continuous
F and non-hostile. On this aspect, the Court took note of essentials of
adverse possession, which are required to be proved, from the judgment
in the case of If.arnataka Board of Wakf v. Government of India 1•
and some other judgments. Discussion in this behalf is contained in
• (1996) 3 sec 124
1
(1996) 10 sec n1
G • (1995) 5 sec 335
' (1995) 5 sec 528
'"(2008) 9 sec 177
11
(2009) 1o sec 689
12
(I 996) 2 sec 634
" ( 1998) 4 sec 387
H " (2004) 1o sec 779
BANGALORE DEVELOPMENT AUTHORITY v. N. JAYAMMA 595
[A. K. SIKRI, J.]
paras 15 to 18, which read as under: A
"15. Coming then to the question whether the plaintiffs-
respondents could claim adverse possession, we need to hardly
mention the well known and oft quoted maxim nee vi, nee clam,
nee preeario meaning thereby that adverse possession is proved
only when possession is peaceful, open, continuous and hostile. B
The essentials of adverse possession were succinctly summed-
up by this Court in Karnataka Board of Wakfv. Govt. of India
(2004) 10 sec 779 in the following words:
"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- c
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
D
a well-settled principle that a party claiming adverse possession
must prove that his possession is "nee vi, nee clam, nee
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 E
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 Kamataka (1997) 7 SCC 567).
Physical fact of exclusive possession and the animus possidendi
F
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 G
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
H
596 SUPREME COURT REPORTS (2016] 4 S.C.R.
A he is trying to defeatthe 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)."
16. Reference may also be made to the decision of this Court in
B Saroop Singh v. Banta (2005) 8 SCC 330, where this Court
emphasised the importance of animus possidendi and observed:
"29. In terms of Article 65 the starting point.oflimitation does
not commence from the date when the right of ownership arises
to the plaintiff but commences from the date the defendant's
c possession becomes adverse. (See Vasantiben Prahladji Nayak
v. Somnath Muljibhai Nayak (2004) 3 SCC 376).
30. "Animus possidendi" is one of the ingredients of adverse
possession. Unless the person possessing the land has the
requisite animus the period for prescription does not commence.
D As in the instant case, the appellant categorically states that
his possession is not adverse as that of true owner, the logical
corollary is that he did not have the requisite animus. (See
Mohd. Mohd. Ali v. Jagadish Kalita (2004) 1SCC371, SCC
para 21.)"
E 17. Also noteworthy is the decision of this Court in Mohan Lal v.
Mirza Abdul Gaffar ( 1996) 1 SCC 639, where this Court held
that claim of title to the property and adverse. possession are in
terms contradictory. This Court observed:
"4. As regards the first plea, it is inconsistent with the second
plea. Having come into possession under the agreement, he
F
must disclaim his right thereunder and plead and prove assertion
of his independent hostile adverse possession to the knowledge
of the transferor or his successor in title or interest and that
the latter had acquiesced to his illegal possession during the
entire period of 12 years, i.e., up to completing the period of
G his title by prescription nee vi, nee clam, nee precario. Since
the appellant's claim is founded on Section 53-A, it goes without
saying that he admits by implication that he came into possession
of the land lawfully under the agreement and continued to
remain in possession till date of the suit. Thereby the plea of
adverse possession is not available to the appellant."
H
BANGALORE DEVELOPMENT AUTHORITY v. N. JAYAMMA 597
[A. K. SIKRI, J.]
18. To the same effect is the decision of this Court in Annasaheb A
Bapusaheb Patil v. Ba/want ( 1995) 2 SCC 543, where this Court
elaborated the significance of a claim to title viz.-a-viz. the claim
to adverse possession over the same property. The Court said:
"15. Where possession can be referred to a lawful title, it will
not be considered to be adverse. The reason being that a person B
whose possession can be referred to a lawful title will not be
permitted to show that his possession was hostile to another's.
title. One who holds possession on behalf of another, does not
by mere denial of that other's title make his possession adverse
so as to give himself the benefit of the statute of limitation.
Therefore, a person who enters into possession having a lawful c
title, cannot divest another of that title by pretending that he
had no title at all."
19. After taking note of the principle of law relating to adverse
possession in the aforesaid manner, this Court commented about the
erroneous approach of the High Court in the following manner: D
"19. The Courts below have not seen the plaintiff- respondent's
claim from the above perspectives. The High Court has, in
particular, remained oblivious of the principle enunciated in the
decisions to which we have referred herein above. All that the
High Court has found in favour of the plaintiffs is that their E
possession is established. "(hat, however, does not conclude the
controversy. The question is not just whether the plaintiffs were
in possession, but whether they had by being in adverse possession
for the statutory period of 12 years perfected their title. That
question has neither been adverted to nor answered in the judgment
impugned in this appeal. Such being the case the High Court, in F
our opinion, erred in dismissing the appeal filed by the appellant-
BDA. The fact that the plaintiffs had not and could not possibly
establish their adverse possession over the suit property should
have resulted in dismissal of the suit for an unauthorised occupant
had no right to claim relief that would perpetuate his illegal and G
unauthorised occupation of property that stood vested in the BDA."
20. In addition to the discussion contained in M. Venkatesh case
noted above, we may also add what was held in P.T. Municl1ikkanna
Reddy & Ors. v. Revamnw & Ors.';:
"(2007) 6 sec 59 H
598 SUPREME COURT REPORTS [2016) 4 S.C.R.
A "5. Adverse possession in one sense is based on the theory or
presumption that the owner has abandoned the property to the
adverse possessor on the acquiescence of the owner to the hostile
acts and claims of the person in possession. It follows that sound
qualities of a typical adverse possession lie in it being open,
continuous and hostile. (See Downing v. Bird; Arkansas
B
Commemorative Commission v. City of Little Rock; Monnot v.
Murphy; and City of Rock Springs v. Sturm)."
21. In Rama Slzankar & Anr. v. Om Prak"s/1 Likltdlrari &
16
. Ors. , the Allahabad High Court has observed as under:
"21. The principle of adverse possession and its consequences
c wherever attracted has been recognized in the statute dealing
with limitation. The first codified statute dealing with limitation
came to be enacted in 1840. The Act 14 of 1840 in fact was an
enactment applicable in England but it was extended to the territory
of Indian continent which was under the reign of East India
D Company, by an authority of Privy Council in the East India
Company v. Oditchurn Paul, 1849 (Cases in the Privy Council
on Appeal from the East Indies) 43.
xx xx xx
23. The law of Prescription prescribes the period at the expiry of
E which not only the judicial remedy is barred but a substantive
right is acquired or extinguished. A prescription, by which a right
is acquired, is called an 'acquisitive prescription'. A prescription
by which a right is extinguished is called 'extinctive prescription'.
The distinction between the two is not of much practical importance
F or substance. The extinction of right of one party is often the
mode of acquiring it by another. The right extinguished is virtually
transferred to the person who claims it by prescription.
Prescription implies with the thing prescribed for is the property
of another and that it is enjoyed adversely to that other. In this
respect it must be distinguished from acquisition by mere
G occupation as in the case of res nullius. The acquisition in such
cases does not depend upon occupation for any particular length
of time."
16
(2013) 6 ADJ 119
H
BANGALORE DEVELOPMENT AUTHORITY v. N. JAYAMMA 599
[A. K. SIKRI, J.)
22. The aforesaid analysis of the judgment in M. Venkateslt (supra) A
amply shows that it is squarely and directly applicable to the facts and
circumstances of the present case. In the first instance, it shows that
reliance of the respondent herein on the judgment of Joltn B. James
(supra) is of no avail. It would further demonstrate that the findings of
the court below that only paper possession was taken and actual
B
possession was not taken also becomes meaningless as the manner of
taking possession in the instant case was also identical. In addition, it is
pertinent that the respondent herein, in para 10 of the plaint, had herself
admitted that the officials of the BDA had come to the suit property on
April 24, 2001 and demolished the existing structure. This act of the
BDA would amply demonstrate that there was no unhindered, peaceful c
and continuous possession of the suit land.
23. Learned counsel for the respondent had raised the plea of
equity. He has also submitted that when the BDA itself is created for
the purpose of formation oflayouts and allotment of sites to the members
of the public, the respondent should not be dispossessed when she is in D
continuous possession of the suit property. However, these would not
be the relevant considerations in the present case as we cannot forget
that the present appeal arises out of civil proceedings filed in the form of
a suit by the respondent and once it is found that the respondent has not
been able to prove title by adverse possession, no such aspects, not
coming within the scope of the suit proceedings, can be looked into. E
Insofar as the argument predicated on Section 27 of the Bangalore
Development Authority Act or Section 24(2) of the Right to Fair
Compensation and Transparency in Land Acquisition Rehabilitation and
Resettlement Act, 2013 are concerned, again these issues were neither
raised nor arise in the instant case. If the respondent, if at all, has any F .
right to make claim on the aforesaid grounds, in any appropriate
proceedings, she can do so, if permissible in law. We may clarify that
this Court has not gone into these issues and, therefore, has not made
any comments on the merits of such pleas raised by the respondent.
24) As a result, the appeal stands allowed resulting in dismissal of G
the suit filed by the respondent in the trial court. In the facts and
circumstances of this case, there shall be no order as to costs.
Kljlpana K. T~ipat)ly Appeal allowed.
H
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