A.S. No. 254 of 1991 (C)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** ## **WEDNESDAY, THE 14TH DECEMBER 2011 / 23RD AGRAHAYANA 1933** ## **AS.No. 254 of 1991(C)** - **-------------------------------** ## **OS.93/1982 OF SUB COURT, MAVELIKKARA** **....................** ## **APPELLANTS/PLAINTIFFS:** **---------------------------------------** **1. DR.JOHN P.MATHAI, JOSE VILLA, THERAKATH, KIZHCHERIMEL MURI, VADAKKEKKARA VILLAGE, FROM POONUTHARAPARAMBIL, NADUVILA MURIYIL, THALAVADI VILLAGE.** **2. P.M. MATHEWS OF -DO-.** ## **BY ADV. SRI.K.GEORGE VARGHESE KANNANTHANAM** ## **RESPONDENTS/DEFENDANTS:** ## **----------------------------------------------** **1. JOHN P.CHACKO, PAZHAVANA VEETTIL, LAKASSERI MURIYIL, VADAKKEKKARA VILLAGE.** **2. JACOB JOHN OF -DO-.** **3. ROY JACOB OF -DO-.** **4. ANNIE JACOB OF -DO-.** **5. BIJI JACOB OF -DO-.** - ***6. SUSAN KURIEN, VAZHEPARAMBIL, PARIYARAM MURIYIL, PUTHUPPALLY VILLAGE. * DIED (DELETED)** - **R6 (DIED) IS DELETED FROM PARTY ARRAY, VIDE ORDER DATED 01/04/2009 IN I.A.945/2009.** **7. JACOB KURIEN OF -DO-.** **8. MARRY KURIEN OF -DO-.** **9. ELIZEBETH PAUL OF -DO-.** ## **BY ADV. SRI.G.UNNIKRISHNAN,** - **SRI.T.M.CHERIAN.** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 01/12/2011,THE COURT ON 14/12/2011 DELIVERED THE FOLLOWING:** **rs** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S. No. 254 of 1991 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of December, 2011. ## **JUDGMENT** The plaintiffs in O.S. 93 of 1982 before the Sub Court, Mavelikkara, who were non-suited by the court below are the appellants. During the pendency of the appeal before this court, the sixth respondent was deleted from the party array. 2. The plaint schedule property originally belonged to one Aleyamma Chacko. She had a son by name Chacko Kurien, who is no more. Defendants 6 to 9 are the legal heirs of the said Chacko Kurien. After the death of Aleyamma Chacko, property devolved on Chacko Kurien and on his death on defendants 6 to 9. Plaintiffs purchased the plaint schedule property from them as per Ext.A1 dated 14.1.1982. The allegation in the plaint is that the first defendant was a tenant under Aleyamma chacko and the sixth defendant had already filed an R.C.P. under Act 2 of 1965 for eviction of the first A.S.254/1991. 2 defendant. After the property was purchased by the plaintiffs, they got themselves impleaded in the R.C.P. proceedings. In the R.C.P. the first defendant had disputed the title of the landlord and the Rent Control Court found that the dispute is a bonafide one and relegated the parties to a suit to establish their claims. Hence the suit was filed. It is alleged in the plaint that the first defendant has no manner of right over the suit property and he cannot continue in occupation thereof. Claiming mesne profits and recovery of possession on the strength of title, the suit was instituted. 3. The first defendant resisted the suit. According to him, by Ext.A34 udampady dated 3[rd] Thulam, 1124, Koshy Thomas was inducted into possession for a particular period. Even after that period, Koshy Thomas continued in possession and the first defendant was inducted into possession of the suit property by Koshy Thomas. Koshy Thomas was closely related to Aleyamma Chacko. There was no landlord tenant relationship between A.S.254/1991. 3 Koshy Thomas and the first defendant, and therefore there was no such relationship between him and Aleyamma Chacko also. Further contention was that Koshy Thomas was inducted into possession as a licensee and he having put up permanent structures thereon, the licence is irrevocable. The first defendant contended that he was in occupation of the premises on his own independent right and not as alleged by the plaintiffs. He, therefore, prayed for a dismissal of the suit. 4. Defendants 6 and 9 pointed out that they are unnecessary parties to the suit and the suit against them is without any bonafides. They supported the plaintiffs to the extent that the first defendant was only a tenant in respect of the suit property and he was paying rent to them. Since they have executed the sale deed in favour of the plaintiffs, the plaintiffs have no cause of action against defendants 5 to 9. They expressed that they had no objection in granting a decree to the plaintiffs. 4 A.S.254/1991. 5. It appears that a replication was filed by the plaintiffs clarifying some of the matters which were found in the contentions taken out by the first defendant in his written statement. 6. On the above pleadings, issues were raised. The evidence consists of the testimony of P.Ws.1 to 6 and documents marked as Exts. A1 to A35 from the side of the plaintiffs. The defendants examined D.Ws.1 and 2. Ext.X1 is the third party exhibit and C.W.1 is the Commissioner who had prepared Exts.C2, C3 and C3(a). 7. The trial court, on a consideration of the evidence in the case, came to the conclusion that the first defendant had perfected his title by adverse possession and limitation and therefore dismissed the suit. 8. The question that arises for consideration is whether the finding of the court below that the plaintiffs have lost their title to the suit property by adverse possession and limitation is correct. A.S.254/1991. 5 9. Learned counsel appearing for the appellants contended that the court below has misdirected itself both on facts and in law. Learned Senior Counsel Sri.Kurian George Kannamthanam pointed out that the court below has strangely applied Article 64 of the Limitation Act, whereas that could have no application, since the suit is based on title and the relevant article is Article 65 of the Limitation Act. The entire decision proceeds on the basis that the plaintiffs have not proved possession within 12 years as is required under Article 64 and therefore they have to be non-suited. The approach is clearly illegal and the judgment and decree cannot be supported. 10. There seems to be considerable force in the above submission. Before going into that aspect, it is necessary to notice that the property originally belonged to Aleyamma Chacko. It appears that Koshy Thomas was helping Aleyamma Chacko both physically and monetarily and therefore, she had an obligation towards him. In pursuance to the said obligation, it appears that she had A.S.254/1991. 6 executed Ext.A34, an udampady whereby she gifted item No.1 in Ext.A34 and in respect of the building shown as item No.2. Koshy Thomas was allowed to occupy the premises for a period of 17 years and thereafter to vacate the same and hand over possession to Aleyama Chacko. According to the plaintiffs, the first defendant was inducted into possession by Koshy Thomas and therefore, the first defendant had only the status of a tenant, who is liable to pay rent to the landlord. The predecessor-in-interest of the plaintiffs had instituted R.C.P. 10 of 1981 for eviction of the first defendant from room No.189. The first defendant contended that there was no landlord tenant relationship between him and the petitioner in the R.C.P. and he was occupying the property in his own right and independent of the right of the petitioners in the R.C.P. He disputed that he was ever a tenant and according to him, he was simply inducted into possession by Koshy Thomas and since Aleyamma Chacko did not recover the property after 17 years from the date of Ext.A34, any right which Aleyamma Chacko or her successors in interest A.S.254/1991. 7 had over the property had been lost by adverse possession and limitation. 11. The above plea found favour with the trial court. Interestingly enough, it is found by the trial court that the plaintiffs have title to the suit property. That fact cannot be disputed also. It is not disputed even by the first defendant that Aleyamma Chacko was the owner of the property. It is also not disputed by him that Koshy Thomas had only a right to occupy the premises for a period of 17 years. His occupation can therefore be treated only as a licensee. Even assuming that after the expiry of 17 years, the property was not recovered or that Koshy Thomas did not surrender possession of the property does not change the status of the parties. 12. It appears that the first defendant was inducted into possession by the said Koshy Thomas. It is seen from the written statement of the first defendant that Koshy Thomas had taken up residence with him. The contention of the first defendant was that eversince then, he A.S.254/1991. 8 has been treating the property as his own and he had not paid rent to any one nor was he a tenant under any person. He claims to be the owner of the property. 13. It is not discernible either from the pleadings or from the evidence furnished by the first defendant as to how he became the owner of the property. He had no document in his favour to show that he has title to the suit property. All he says is that he was inducted into possession by Koshy Thomas and he has been continuing there for a long time and therefore he acquired title. The case put forward by the first defendant is that in 1955, while Koshy Thomas was doing a contract business, he was inducted into possession of room Nos.185 and 189A and he started running a ration shop therein. He would also say that he had never paid rent to anybody and eversince 1955 he had been in exclusive possession and enjoyment of the suit property. 14. The court below has applied Article 64 of the Limitation Act to the facts of the case. It is significant to A.S.254/1991. 9 notice that the court below has not found that the first defendant had title to the suit property. In fact it has found that the title vests with the plaintiffs. The lower court omitted to notice that the suit was one for recovery of possession on the strength of title, in which case, the provision that is attracted is Article 65 of the Limitation Act. Going by that Article, when once title is proved, the burden shifts to the first defendant to prove that he had perfected title by adverse possession and limitation. Unlike in Article 64, where the plaintiffs have to prove that they have been in possession within 12 years of the suit. The court below has clearly erred in applying Article 64 to the facts of the case. 15. The next question that arises for consideration is whether the finding of the court below that rights, if any, of the predecessors-in-interest of the plaintiffs or plaintiffs have been lost by adverse possession and limitation can be sustained. The trial court goes on to hold that Aleyamma Chacko has lost title to the suit property by adverse possession and limitation and since the first defendant had A.S.254/1991. 10 been in possession of the property for a long period and neither Aleyamma Chacko nor her successors in interest had taken any steps to reoccupy the premises. The lower court found that the first defendant had been treating the property as his own and therefore any right which Aleyamma Chacko had had already been lost. 16. It is well settled that the burden is on the person who sets up adverse possession and limitation to prove the necessary ingredients to attract the said provision. The classic definition of adverse possession is that possession must be _nec vi nec clam nec precari_ o, i.e., the possession must be adequate in continuity, in publicity and extent. The person who claims adverse possession must show by clear and unequivocal evidence that his possession was adverse to the real owner. A person who has been inducted into possession by permission cannot prescribe adverse possession and limitation unless he shows that his character as a permissive occupier had changed and was occupying the premises for the required statutory period A.S.254/1991. 11 adverse to the interest of the real owner. The possession must be hostile, actual, open, notorious and conclusive for a statutory period. Possession, however long, may not by itself is sufficient to attract adverse possession and limitation. 17. Adverse possession is an exception to the acquisition of title through lawful means. Adverse possession implies that possession commenced in wrong and maintained against _right corpus juris secundum_ . In order to constitute adverse possession, the person concerned must be in a position to exercise some control over the thing in denial of the title of the true owner. 18. The question of adverse possession depends to a great extent upon animus. The title acquired by possession depend on the nature of animus possidendi and that has to be established by the person who claims title by adverse possession. 19. In order to understand what constitutes a plea of adverse possession and what are the ingredients A.S.254/1991. 12 necessary to attract adverse possession, it is profitable to refer to a few decisions. ## 20. In the decision reported in **Kodiyan v. Karambi** (2007(2) K.L.T. 361), it was held as follows: _“Adverse possession is commenced in wrong and is aimed against the right. A person is said to hold the property adversely to the real owner, when that person in denial of the owner's right excluded him from the enjoyment of the property. The requirement of adverse possession is nec vi nec clam nec precario, ie. the possession required must be adequate in continuity, in publicity and in extent. Where the possession is referable to a permissive possession, it cannot be said that the person in possession has perfected title by adverse possession, even if he continued in possession for a long period. Mere continuance of possession for twelve years or more is not enough to defeat the title of the real owner and to claim title by operation of S.27 of the Limitation Act. The exception to the General Rule that the limitation bars only the remedy and not the right is contained in S.27 of the Limitation Act, which reads as follows:_ 13 _“27. Extinguishment of right to property-- At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.”_ _By the expiry of the period for instituting a suit for possession, the right of the owner of the property shall stand extinguished and the person in adverse possession would get a legal right to be in possession. A person who has perfected title by adverse possession could even maintain a suit on the basis of the prescriptive title he has acquired. S.27 operates as an extinguishment of the right of the real owner and a vesting of the right in the trespasser or a person in unlawful possession. Article 65 of the Limitation Act provides for a period of limitation of twelve years for filing a suit for possession of immovable property; and the time from which the period begins to run is provided as “when the possession of the defendant becomes adverse to the plaintiff”. Therefore the starting point of the period of limitation is the point at which the possession of the defendant becomes adverse to the plaintiff. That is a question of fact and it is to be pleaded_ A.S.254/1991. 14 _and proved by the person who claims adverse possession. A person in permissive possession can claim that his possession was adverse to the real owner only if he proves that he had shed his character as the permissive occupier and started his possession adverse to the real owner. The animus possendenti is the important aspect to be proved to claim adverse possession. A secret hostile animus is not sufficient to constitute adverse possession. In the case of permissive possession, the possession by itself is not material or relevant, since the person who was permitted could possess the property on the basis of such permission. The nature of the possession is attributable to the permission in such cases. The possession becomes adverse only when it becomes irreconcilable or contrary to the permission granted. Such intention should be made known or at least manifested in the acts of the person who claims adverse possession.”_ 21. In the decision reported in **Deva v Sajjan Kumar** ((2003) 7 SCC 481), the facts were that the High Court in Second Appeal had reversed the judgment of the A.S.254/1991. 15 two courts relying on the defendant's own admission that he came to know of his alleged encroachment of land in Sy. No.452 only after the filing of the suit. The High Court therefore came to the conclusion that he could not be held to have perfected title by adverse possession. Considering the finding of the court below, the Apex Court held as follows: _“The deposition extracted above, in any case, negatives the defendant's case of having prescribed title by adverse possession from the year 1940. The animus to hold the land adversely to the title of the true owner can be said to have started only when the defendant derived knowledge that his possession over the suit land had been alleged to be an act of encroachment - on the plaintiff's survey number._ _The above quoted admission contained in the defendant's deposition, does not make out a case in his favour of having acquired title by adverse possession. Mere long possession of the defendant for a period of more than 12 years without intention to possess the suit land adversely to the title of the plaintiff and to the_ A.S.254/1991. 16 _latter's knowledge cannot result in acquisition of title by the defendant to the encroached suit land.”_ ## 22. In the decision reported in **Md.Mohammed** **Ali v. Jagadish Kalita** ((2004) 1 SCC 271) the scope and ambit of Article 65 was considered and it was held as follows: _“By reason of the Limitation Act, 1963 the legal position as was obtaining under the old Act underwent a change. In a suit governed by Article 65 of the 1963 Limitation Act, the plaintiff will succeed if he proves his title and it would no longer be necessary for him to prove, unlike in a suit governed by Articles 142 and 144 of the Limitation Act, 1908, that he was in possession within 12 years preceding the filing of the suit. On the contrary, it would be for the defendant so to prove if he wants to defeat the plaintiff's claim to establish his title by adverse possession. For the purpose of proving adverse possession/ouster, the defendant must also prove animus possidendi.”_ 17 ## 23. In the decision reported in **Karnataka Board of Wakf v. Government of India** ((2004) 10 SCC 779), it was held as follows: _“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 a long time won't affect his title. But the position will be altered when another person takes possession f 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 a well settled principle that a party claiming adverse must prove that his possession is “nec vi, nec clam, nec precrio”, 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 and be actual, visible exclusive, hostile and continued over the statutory period. Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion of the actual owner are the most important factors_ A.S.254/1991. 18 _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 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 the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.”_ ## 24. In the decision reported in **T. Anjanappa v.** ## **Somalingappa** ((2006) 7 SCC 570) it was held as follows: _“The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's right but denies them. A person who bases his title on adverse_ A.S.254/1991. 19 _possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to be adverse if it can be referred to a lawful title. An occupation of reality is inconsistent with the right of the true owner. Where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner (that is, with the intention of excluding all persons from it, including the rightful owner), he is in adverse possession of it. It is the basic principle of law of adverse possession that_ A.S.254/1991. 20 _(a) it is the temporary and abnormal separation of the property from the title of it when a man holds property innocently against all the world but wrongfully against the true owner; (b) it is possession inconsistent with the title of the true owner.”_ 25. In the decision reported in **P.T.Munichikkanna Reddy v. Revamma** ((2007) 6 SCC 59) it was emphasized that there must be a positive intention to dispossess the owner. In the said decision, it was held as follows: _“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. If follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile._ _6. Efficacy of adverse possession law in most jurisdiction depends on strong limitation statutes by operation of which right to access the court_ A.S.254/1991. 21 _expires through efflux of time. As against rights of the paper owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operates, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title. 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 cannot be given a_ 22 _complete go-by. Simple application of limitation shall not be enough by itself for the success of an adverse possession claim._ _7. To understand the true nature of adverse possession, Fairweather 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 Court 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 whereas its effect is " merely negative " and, where the possession had been against a tenant, its only operation was to bar his right to claim against the man in possession (see loc. cit. p. 23). I think that this statement needs only one qualification: a_ 23 _squatter does in the end get a title by his possession and the indirect operation of the Act and he can convey a fee simple._ _If this principle is applied, as it must be, to the Appellant's situation, it appears that the adverse possession completed in 1932 against the lessee of No. 315 did not transfer to him either the lessee's term or his rights against or has obligations to the landlord who held the reversion. The appellant claims to be entitled to keep the landlord at bay until the expiration of the term by effluxion of time in 1992: but, if he is, it cannot be because he is the transferee or holder of the term which was granted to the lessee. He is in possession by his own right, so far as it is a right: and it is a right so far as the statutes of limitation which govern the matter prescribe both when the rights to dispossess him are to be treated as accruing and when, having accrued, they are thereafter to be treated as barred. In other words, a squatter has as much protection as but no more protection than the statutes allow: but he has not the title or estate of the owner or owners whom he has dispossessed nor has he in any relevant sense an estate "commensurate with" the estate of the_ A.S.254/1991. 24 _dispossessed. All that this misleading phrase can mean is that, since his possession only defeats the rights of those to whom it has been adverse, there may be rights not prescribed against, such, for instance, as equitable easements, which are no less enforceable against him in respect of the land than they would have been against the owners he has dispossessed."_ _Also see Privy Council's decision in Chung Ping Kwan and Others v. Lam Island Development Company Limited (Hong Kong) [(1997) AC 38] in this regard._ _8. Therefore, to assess a claim of adverse possession, two-pronged enquiry is required:_ _1. Application of limitation provision thereby jurisprudentially "willful neglect" element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner._ _2. Specific positive intention to dispossess on the part of the adverse possessor 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_ A.S.254/1991. 25 _dispossess is an express statement of urgency and intention in the upkeep of the property._ _12. The aspect of positive intention is weakened in this case by the sale deeds dated 11.04.1934 and 5.07.1936. Intention is a mental element which is proved and disproved through positive acts. Existence of some events can go a long way to weaken the presumption of intention to dispossess which might have painstakingly grown out of long possession which otherwise would have sufficed in a standard adverse possession case. The fact of possession is important in more than one ways: firstly, due compliance on this count attracts limitation act and it also assists the court to unearth as the intention to dispossess._ _31. 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_ A.S.254/1991. 26 _this regard in S.M. Karim v. Mst. Bibi Sakina [AIR 1964 SC 1254]: Para 5_ _"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. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea."_ _40. 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._ _43. Human rights have been historically considered in the realm of individual rights such as, right to health, right to livelihood, right to shelter and employment etc. but now human_ A.S.254/1991. 27 _rights are gaining a multifaceted dimension. Right to property is also considered very much a part of the new dimension. Therefore, even claim of adverse possession has to be read in that context. The activist approach of the English Courts is quite visible from the judgment of Beaulane Properties Ltd. v. Palmer [2005 (3) WLR 554] and JA Pye (Oxford) Ltd v. United Kingdom [2005] ECHR 921], The court herein tried to read the Human Rights position in the context of adverse possession. But what is commendable is that the dimensions of human rights has widened so much that now property dispute issues are also being raised within the contours of human rights._ _44. With the expanding jurisprudence of the European Court of Human Rights, the Court has taken an unkind view to the concept of adverse possession in the recent judgment of J.A. Pye (Oxford) Ltd v. The United Kingdom [2005] ECHR 921, which concerned the loss of ownership of land by virtue of adverse possession._ _56. Therefore it will have to be kept in mind the Courts around the world are taking an unkind view toward statutes of limitation overriding property rights._ A.S.254/1991. 28 _59.The argument for a more intrusive inquiry for adverse possession must not be taken to be against the law of limitations. Limitation statutes as statutes of repose have utility and convenience as their purpose. Nevertheless, there has been change on this front as well which have been noticed by us heretobefore.”_ ## 26. In the decision reported in **L.N. Aswathama v. P. Prakash** ((2009) 13 SCC 229), it was held as follows: _“The legal position is no doubt well settled. To establish a claim of title by prescription, that is, adverse possession for 12 years or more, the uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to_ A.S.254/1991. 29 _the title of the true owner, the period of prescription will not commence.”_ 27. Having thus understood the principles regarding adverse possession and limitation, an attempt shall now be made to see whether the first defendant had succeeded in establishing adverse possession and limitation in the case on hand. 28. Recalling the contentions raised by the first defendant, all that he says is that in 1955 he was inducted into possession by Koshy Thomas and thereafter he was treating the property as his own. His only case is that since neither Aleyamma Chacko nor her successors in interest had ever sought to recover the property or reoccupy the same, he had acquired title by adverse possession. It is essential to note that when examined as D.W.1 there is no whisper about his case in his evidence. All that he says is that the rooms were given to him by Koshy Thomas and that it was not on a rental arrangement. He would further say that thereafter he was treating the property as his own. The A.S.254/1991. 30 necessary ingredients to attract adverse possession and limitation are not spoken to by him. His case seems to be that after the period of 17 years mentioned in Ext.A34, neither Aleyamma Chacko nor her successors-in-interest reoccupied the property. They have lost their right. Even assuming that Koshy Thomas permitted him to occupy, there is nothing to indicate that permissive possession had changed and there was any indication to the true owner that the first defendant was occupying the property as his own in derogation of the rights of the true owner. In his evidence also, he has no such case. 29. It is therefore difficult to accept the finding of the court below that the first defendant has prescribed title by adverse possession and limitation. There is absolutely no evidence in this regard at all and further the court below was clearly in error in applying Article 64 to the facts of the case. 30. The appellants have filed a memo stating that they are giving up reliefs C and D in the plaint and would confine their relief to A, B and E in the plaint. 31 In the result, this appeal is allowed, the impugned judgment and decree are set aside and a decree is passed in the following terms: i) It is declared that the plaintiffs have title to the suit property and they are entitled to recover the same from defendants 1 to 5. ii) Defendants 1 to 5 are directed to surrender vacant possession of the premises within three months from the date of this judgment, failing which the plaintiffs will be at liberty to seek the aid of court for recovery of it on the strength of title. iii) Appellants will get their costs in this court as well as before the court below. ## **P. BHAVADASAN, JUDGE** sb.