EFFECT OF CLAIM OF ADVERSE POSSESSION IN DECLARATORY SUITS. By: Smt Gundla Radhika, II Additional Junior Civil Judge, Huzurabad The concept of declaratory rights under Sec.34 of Specific Relief Act is having wider scope but the article is confined only to effect of adverse possession in declaratory suits. Before entering into the topic of adverse possession of few lines over the declaratory relief under the law. Declaratory relief requires this Court to declare some rights of parties, when any person has legal character (or) any legal rights as to any property by virtue of title deeds (or) may file a suit for declaration of those rights and for injunction against any person denying (or) interested to deny his title to such character or right. The claim of rights and interests in relation to property on the basis of possession has been recognized in all legal systems. Uninterrupted and uncontested possession for a specific period, hostile to the rights and interests of true owner, is considered to be one of the legally recognized modes of acquisition of ownership. The prescription of periods of limitations for recovering possession or for negation of the rights and interests of true owner is the core and essence of the law of adverse possession. Adverse possession means Uninterrupted and uncontested possession for a specified period, hostile to the rights and interests of true owner is termed as adverse possession. In other words, it means, a person who does not have legal title to a piece of property but acquires legal ownership based on continuous possession or occupation of the land without the permission of its legal owner. It is a method, rooted in common law, of obtaining title to land through use. The common law rules for adverse possession have been codified under both federal and state statutes. A typical statute allows a person to obtain title to land from the actual owner simply by using the land, The use must be open for all to see. An example of openly using land for the purposes of adverse possession would be if your neighbor built a fence on your land with the intention of taking the property, paid your property taxes, and though youknew about it you did nothing. If this continued for a period of time set by state law, your neighbor may be able to claim this property as his/her own. The theory is that by not disputing your neighbor's use of your property through a lawsuit, you, as the actual owner have abandoned your rights to the property. Gaining title to land through adverse possession requires strict compliance with the law, and can have dramatic impact upon land ownership rights. The plea of adverse possession is mixed question of law and fact. It is well settled law that before a party can succeed in establishing title on the basis of adverse possession, a plea to that effect must be specifically raised. Basic elements to constitute Adverse possession: Continuity: The occupation of the property by the applicant must be unbroken, continuous, and uninterrupted for the entire sanctioned period of limitation. Hostile: This means that the claimant has knowingly occupied the property in opposition to the actual owner's rights, for the statutory time (12 or 30 years), and with the purpose of acquiring the title. Actual: The person staying in the home with the intention of keeping it should show that he is exercising authority over the property by performing physical acts such as construction, planting and harvesting crops, repairs, and so on. Exclusive: The claimant must have had sole occupancy of the property for the statutory period of limitation. Two people if share occupancy of the property may claim the title as joint tenants. Open: The person claiming the title must possess the land or house openly, and not in secrecy, as a real owner would. Occupying another's property quietly does not give the trespassers any legal rights. * The owner or the public must have actual knowledge of the adverse use. History of Adverse Possession The concept of adverse possession was born in England around 1275 and around 1623 a statute of limitations was put into place that allowed for a person in possession of property for twenty years or more to acquire title to that property. The early English doctrine was designed to prevent legal disputes over property rights that were time consuming and costly. The doctrine wasalso created to prevent the waste of land by forcing owners to monitor their property or suffer the consequence of losing title. This concept of adverse possession was subsequently adopted in the United States. They adopted twenty-year statute of limitations for adverse possession claim. But as the land disputes increased, the time period to acquire land by adverse possession was reduced in some states to five years, while in others, it was increased to forty years. Limitation Act on Adverse Possession Section 27 of the Limitation Act, 1963 operates to extinguish the right to property of a person who does not sue for its possession within the time allowed by law. The right extinguished is the right which the lawful owner has and against whom a claim for adverse possession is made, therefore, the plaintiff who makes a claim for adverse possession has to plead and prove the date on and from which he claims to be in exchisive, continuous and undisturbed possession. The question whether possession is adverse or not is often one of simple fact but it may also be a conclusion of law or a mixed question of law and fact. The facts found must be accepted, but the conclusion drawn from them, namely, ouster or adverse possession is a question of law and has to be considered by the court. The statute does not define adverse possession, it is a common law concept, the period of which has been prescribed statutorily under the law of limitation Article 65 as 12 years. Law of limitation does not define the concept of adverse possession nor anywhere contains a provision that the plaintiff cannot sue based on adverse possession. It only deals with limitation to sue and extinguishment of rights. There may be a case where a person who has perfected his title by virtue of adverse possession is sought to be ousted or has been dispossessed by a forceful entry by the owner or by some other person, his right to obtain possession can be resisted only when the person who is seeking to protect his possession, is able to show that he has also perfected his title by adverse possession for requisite period against such a plaintiff. Under Article 64 also suit can be filed based on the possessory title. Law never intends a person who has perfected title to be deprived of filing suit under Article 65 to recover possession and to render him remediless. In case of infringement of any other right attracting any other Article such as in case theland is sold away by the owner after the extinguishment of his title, the suit can be filed by a person who has perfected his title by adverse possession to question alienation and attempt of dispossession. The adverse possession requires all the three classic requirements to co- exist at the same time, namely, necvi i.e. adequate in continuity, necclam i.e., adequate in publicity and necprecario 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 synonym with adverse possession. Trespasser’s possession is construed to Le 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 the large 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. Buren of proof : If plaintiff has filed suit claiming title over suit property in terms of Article 64 and 65 of Limitation Act 1963, burden would be on the defendants to prove but he has acquired title adverse possession. It is impermissible for the defendant to take plea that plaintiff ought to have filed suit within 12 years from the date of the dispossession and that because they have not done so, the snit is liable to be dismissed. Claim by adverse possession has two basic elements i.e. the possession of the defendant should be adverse to the plaintiff and the defendant must continue to remain in possession for a period of 12 years thereafter - Animus possidendi as is well known a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title of true owner for the said purpose. Burden is heavy upon the person who claims adverse possession to prove actual, exclusive, open, uninterrupted possession for twelve years. Burden to establish plea of adverse possession squarely rests upon defendants in suit for declaration of title and recovery of possession. They must prove to satisfaction of Court that they are in possession of property, openly,for a period exceeding 12 years, being conscious of fact that they do no hold title to it. Possession must therefore be open and with a intention to continue in possession as of right. Initial possession, under licence or permission. Burden lies on person claiming adverse possession to establish when possession has become adverse. The plaintiff has to establish the date on which he becomes in possession, nature of possession, the factum of possession and that his possession was open continuous, exclusive and undisturbed to knowledge of real owner of ion by itself would not constitute adverse possession if it was other permissive possession lanc. He has to show the hostile title. The long continuous po: or possession without animus possidendi. Latest Supreme Court ruling on the adverse possession reported in recent case law 2019(3) ALT (SC) 277 (D.B) Between Mallikarjunaiah vs Nanjaiah and others by Sri Hon'ble Justice Abay Manohar Sapre and Dinesh Maheshwari wherein it was held that mere continuous possession howsoever long it may have been qua its true owner is not enough to sustain the plea of adverse possession unless it is further proved that such possession was open, hostile, exclusive and with the assertion of ownership right over the property to the knowledge of its true owner. This appeal is directed against the final judgment and order dated 14.11.2007 passed by the Hon'ble High Court of Karnataka at Bangalore in RSA No. 23 of 2005 whereby the High Court partly allowed the appeal filed by the appellant herein. In the case of Karnataka Board of Wakf -Vs. -GOI (2004) 10 SCC 779. It has been observed by Hon'ble Apex Court that, in the eye of 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 along time won't affect his title. But, the position will be altered when another person takes possession oi the property and asserts rights over it and the person having title omits or negiects to take legal action against such person for years together.In the case of Amrendra Pratap Singh Vs. Tej Bahadur Prajapati. (2004) 10 Scc 65. It has been held that, the process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. Thus, a method of gaining legal title to real property by the actual, open, hostile, and continuous possession of it to the exclusion of its true owner for the period prescribed by law is a adverse possession.In order to elucidate the concept of adverse possession, we have to consider Art 64 and 65 of the limitation Act “The intention of statute is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property but the time specified by the statute under claim or right or colour of title "- The relevant case law in between P.T. Munichikkanna Reddy vs Revamma (AIR 2007 SC 1753] wherein it was held that Adverse possession really means the hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession proved must adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The possession in denial of true owner's title must be peaceful, open and continuous. In a suit for declaration of title and recovery of possession, heavy burden lies upon plaintiff to prove title - Consequential relief would depend upon establishment of title - Even where plaintiff establishes title, he can recover possession if only there does not exist any hurdle, such as plea of adverse possession by defendant. Claim of Title and Adverse Possession are contradictory pleas As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he 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, ie., up to completing the period of his title by preseription nec vi, nec clam, nec 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.” Similarly, it was held in Annasaheb Bapusaheb Patil vs Balwant (1995) 2 SCC 543, Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person 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 title, cannot divest another of that title by pretending that he had no title at all. Adverse Possession whether Pure Question of Law. (a) Plea of Adverse Possession is not a pure question of law rather it is a blerded question of fact and law and the person who is claiming adverse possession must show firstly that on what date he came into possession; secondly what was the nature of his possession; thirdly whether the factum of possession was known to the other party; fourthly how long his possession has continued; and fifthly his possession was open, undisturbed. Hostile to the very knowledge of the opposite party. Suit for declaration claiming ownership on the basis of adverse possession is not maintainable as the plea of adverse possession is available only as a defence. Exceptions to claim of Adverse Possession. There are few cases where the claim of adverse possession won't be accepted by the Court of Law. {a) Co-owner's possession cannot render his possession adverse to the other co- owner (b) Co-sharers - It can arise under the circumstance when the possession is under an agreement. Regarding Permissive occupant and trespassers, mere possession of trespasser will not constitute adverse possession unless accompanied by assertion of hostile title. () In “Gopalakrishna (died) by LRs Vs Narayana Gowda (died) by Lrs” judgment dated 3.4.2019 the Hon'ble Supreme Court considered Spes Succession andclaim of Reversioners under Hindu Law and Limitation regarding earlier proceedings conducted by parties up to High Court in a suit for possession. (qd) Even title by adverse possession cannot be obtained in case of inam lands, Watan land and debulter; moreover a party cannot defend his case of adverse possession in the cases of land belonging to tribal. Per Contra there are instances of grant of decree of title based on adverse possession:~ There are several cases wherein Supreme Court also upheld decree of declaration of title of plaintiff title based on plaintiff adverse possession. Supreme Court's latest decision took a contrary view, held plaintiff could not set up plea of adverse possession to seek declaration of ownership. Instances of grant of decree of title base on adverse possesssion: The Hon'ble Supreme Court in Balakrishna Vs. Satya Prakash [(2001) 2 SCC 498] upheld the decree for declaration of plaintiff's title based on plea of adverse possession. Various Hon'ble High Courts in India too have granted decrees for the declaration of title based of adverse possession. However, in these decisions, the question if adverse possession could at all afford of cause of action to seek a declaration of title was neither raised nor considered. The Hon'ble Supreme Court in Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan [(2009) 16 SCC 517] set aside the decree for the title based on adverse possession, on the count that adverse possession was not pleaded and proved, without however doubting the maintainability of suit. Declaration of title can't be sought on the basis of adverse possession:- No declaration of title can be sought on the basis of adverse possession even if the plaintiff is found to be in adverse possession he cannot seek a declaration to the effect that such adverse possession has matured into ownership. When even any proceedings are filed against any person found in adverse possession, he can use his adverse possession as a shield/defence. (Gurudwara Sahib Vs Gram Panchayat village Sirthala and another 2074) moreover permissive possession is not adverse till the defendant assets an adverse possession.Even if the plaintiff is found to be in adverse possession it cannot seek a declaration to the effect that such adverse possession has matured into ownership only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield. The grant of relief of declaration of title is purely discretionary and the court cannot exercise such discretion in favour of plaintiff unless the plaintiff establishes his title by cogent and satisfactory evidence approaching the court with clean hand. The burden is also on the plaintiff to make out and establishes a clear case for granting declaration of title. The relevant case law is in between Meenugu Mallaiah and others v/s Ananthula Rajaiah and another (2017 1 ALD 457) and also in between Sardar Balwanth v/s SardarBhagath Singh ( 2016 1 ALD 67). The weakness of the defendant would not be a ground to grant relief to plaintiff. Grant of mere relief of declaration, not permissible, if plaintiff being in a position to claim other relief does not pray for it. The doctrine of adverse possession is yet another challenging issue faced by the public when the legal rights of original owner are extinguished over property, whether acquisition of legal rights by the possessor or trespasser by an adverse possession, is justified fully under law, is a point for debate or a challenge in deciding the cases basing on adverse possession, depending upon the facts of the case on hand. I submit this paper for consideration.