GOPALAPILLA BALAKRISHNA PILLA v. CHELLAMMA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933 SA.No. 232 of 1998() -------------------AS.111/1993 of DIST. COURT, ALAPPUZHA OS.637/1988 of PRINCIPAL MUNSIFF,ALAPPUZHA .................... APPELLANT(S)/APPELLANT/PLAINTIFF: -------------------------------------------------------- GOPALAPILLA BALAKRISHNA PILLA, RESIDING AT MADATHIPARAMBIL, FROM KALLELIL, SOUTH ARYAD, MURI, DO. VILLAGE. BY ADV. SRI.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE SRI.P.GOPAL RESPONDENT(S)/RESPONDENT/DEFENDANT: -------------------------------------------------------------- CHELLAMMA, W/O. RAMAN KOCH, RESIDING AT KANDATHIL PARAMBIL CALLED AS KOCHITTANPARAMBU, KOMMADY WARD SOUTH ARYAD MURI, ARYAD SOUTH VILLAGE. ADV. SRI.R.AZAD BABU THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17/06/2011, THE COURT ON 01/07/2011 DELIVERED THE FOLLOWING: ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 232 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of July, 2011. ## **JUDGMENT** The plaintiff, who lost before both the courts below is the appellant. 2. The suit was one for recovery of possession of the plaint schedule property along with mesne profits. The plaintiff claimed to have obtained the plaint schedule property consequent on the death of his mother, who obtained it under Ext.A1 partition deed dated 26.3.1955. It is alleged that the grandmother of the plaintiff allowed the husband of the defendant to take up residence in a portion of the property. In continuation of that permission, consequent on the death of the husband of the defendant, she is continuing the residence. The defendant had instituted a suit against the plaintiff as O.S.429 of 1982 accusing the plaintiff of trying to trespass into the suit property and seeking S.A.232/1998. 2 reliefs against him. The plaintiff would point out that in the said suit, according to the defendant herein, the property belonged to Nani Amma of Thekkekkattu House. Nani Amma sold the house to one Mary and Mary had leased out the property to the father of the defendant. On the death of the father of the defendant, she came into possession. The property in the earlier suit was shown comprised in Sy. No.298/4 and the extent shown was 20 cents. The plaintiff in this suit had filed a written statement disputing the averments in the plaint therein pointing out that even though the property was shown in Sy. No.298/4, the description of the property was that of property contained in the present plaint schedule. That suit was decreed against the plaintiff in the present suit. However, the question of title was left open. Hence the present suit. 3. The defendant resisted the suit. She disputed the description of the plaint schedule property. It was contended that the property said to have been obtained by the plaintiff and his mother under the partition deed 3 S.A.232/1998. evidenced by Ext.A1 is not the property in which the defendant is residing. The property in which the defendant now resides originally belonged to Nani Amma of Thekkekattu House. The case was that the property was leased out to Velayudhan, father of the defendant and he reclaimed a portion of the same and made improvements therein. He put up a residence in the property and took up residence. After the death of her father, the defendant is in absolute possession and enjoyment of the property. The plaintiff had no manner of right over the same. Even assuming that the plaintiff had title over the suit property, the same has been lost by adverse possession and limitation. It was also contended that the judgment and decree in O.S.429 of 1982 operates as res judicata. On the basis of these contentions the defendant prayed for a dismissal of the suit. 4. On the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.Ws.1 and 2 and documents marked as Exts. A1 to A16 S.A.232/1998. 4 from the side of the plaintiff. The defendant had D.Ws.1 to 3 examined and Exts. B1 to B8 marked. Exts.C1 to C3 are the commission reports and plan. 5. On an evaluation of the evidence in the case, the trial court found that the plaintiff had been successful in establishing title to the suit property, but it was found that his title was lost by adverse possession and limitation and therefore the suit was dismissed. 6. The plaintiff carried the matter in appeal as A.S.111 of 1993 before the District Court, Alappuzha. The lower appellate court confirmed the judgment and decree of the trial court upholding the finding regarding adverse possession and limitation. 7. Notice is seen issued on the following question of law: _“Has the respondent/defendant obtained title to the plaint schedule property by adverse possession.”_ S.A.232/1998. 5 8. Learned counsel appearing for the appellant contended that both the courts below have erred both in law and on facts in coming to the conclusion that the plaintiff has lost title by adverse possession and limitation. Learned counsel drew the attention of this court to the fact that the defendant sets up title altogether in a different person and adverse possession was claimed against the plaintiff. If as a matter of fact the defendant had to succeed in the claim for adverse possession and limitation, she has to accept the title of the plaintiff and when she disputes the title of the plaintiff and sets up title in somebody else, it could not said that she has perfected title by adverse possession and limitation against the plaintiff. Learned counsel pointed out that the defendant traces her title to Nani Amma of Thekkekattu House to whom the property involved in the present suit never belonged. Both the courts below have found that the plaintiff has succeeded in establishing title to the suit property, and if that be so, the claim of adverse possession and limitation necessarily will S.A.232/1998. 6 have to fail. The defendant had never treated the plaintiff as the owner of the property and never had the animus to hold the property adverse to the interest of the plaintiff. In the absence of such an animus, the plea cannot succeed. Learned counsel pointed out that the lower appellate court has not considered any of these aspects and has simply gone on the premise that since the defendant has been in possession for a long time, the plaintiff must have lost his title by adverse possession and limitation. In support of the contention that the claim of adverse possession and limitation cannot succeed, learned counsel relied on the decision reported in **Deva v. Sajjan Kumar** ((2003) 7 SCC 481), **T. Anjanappa v. Somalingappa** ((2006) 7 SCC 570), **P.T.Munichikkanna Reddy v. Revamma** ((2007) 6 SCC 59), **Mohd. Mohammad Ali v. Jagadish Kalit** a ((2004) 1 SCC 271), and **Karnataka Board of Wakf v. Govt. of India** ((2004) 10 SCC 779). Learned counsel pointed out that the principle laid down in the above decisions will leave one in no doubt that unless the person who claims adverse S.A.232/1998. 7 possession holds the property knowing fully well who the owner is, the claim of adverse possession cannot succeed. 9. Learned counsel appearing for the respondents on the other hand pointed out that both the courts below have found that the defendant has been in possession for a very long time and she has been residing therein. It is not necessary, according to learned counsel, that the person who claims adverse possession should put the real owner on notice and it is sufficient if the person concerned holds the property adverse to the interest of the true owner with an animus of excluding him from possession and holds the property as her own for the statutory period. According to learned counsel, the courts below were also not justified in finding title to the plaintiff and he pointed out that he was entitled to urge that ground in view of the Order 41 Rule 22 of Code of Civil Procedure. At any rate, according to learned counsel, both the courts below have found that the plaintiff has lost his title by adverse possession and that being 8 essentially a finding of fact, no interference is called for in Second Appeal. 10. The property involved in the present suit originally belonged to Kallelil family. By Ext.A4 partition deed, the family branched into three sakhas, namely, (i) Kallelil, who were allotted items 1 to 11, (ii) Naduvilethu Parambu, who were allotted items 12 to 15, and (iii) Madathil Prambil, who were allotted items 16 to 20. A and D schedules were allotted to Kallelil, B and E schedule were alloted to Naduvilethu Paramb and C and F were allotted to Madathil Parambu. Plaint schedule property is item No.7 of C schedule to Ext.A4 allotted to Madathil Parambu. Plaint schedule property is 25 cent out of 2.86 acres of land comprised in Sy. No.896/1A. It is described as 'ശ��ര�യ�ര നടപ� വടക� പക�ത� സല�.' The boundary is shown as North - തതക�ടന വക ന�ല� East - Road South- ശ��ര�യ�ര നടപ� ശതശക പക�ത� സല� (item 8 of B schedule) S.A.232/1998. 9 West - ശക�ട�ത�ന പറ�ബ� 11. Later by Ext.B1 dated 26.6.1115 Madathil parambu sakha divided into two. A schedule items 1 and 2 were allotted to the sakha of Kesukuttan and B schedule items 3 to 5 were alloted to sakha No.2. B schedule was allotted to sakha No.2 as per Ext.B1 divided among themselves by Ext.A1 dated 26.3.1955. Plaint schedule property, which is shown as C schedule in Ext.B1, was allotted to Chellamma and the plaintiff who was a minor then. The boundaries shown are East - Road South - Empire square building West - Empire square building North - property of Jose Peter The extent shown is 25 cents. 12. There was an earlier suit between the parties as O.S. 429 of 1982 in which the present defendant was the plaintiff. In the said suit, it is seen that defendant set up title to the suit property through her father, who is claimed S.A.232/1998. 10 to have obtained a lease from Nani Amma of Thekkekkattu House. The survey number shown is 298/4. The property so claimed by the defendant in the earlier suit was located in the plan in the present suit, namely, Ext.C3, which is shown to be lying far away from the plaint schedule property, which is comprised in Sy. No. 298/A3. 13. The defendant has a case that the trial court has erred in finding title in favour of the plaintiff. Learned counsel appearing for the respondents in this appeal would also point out that the lower appellate court did not address itself to this question at all. It is pointed out that plaint schedule property is not the property obtained under Ext.A1 dated 26.3.1955. Drawing attention to the plaint schedule, it was pointed out that the boundaries shown are as follows: East - Road South - Empire square building West - Empire square building North - Jose Peter's property purchased by Saraswathy Amma. S.A.232/1998. 11 The description is shown as ശക�ച�ട�ല പറ�ബ�എന കണത� പറ�ബ�. It is contended that the description is not as Madathil Paramb. Drawing attention to Ext.B4 document dated 19.11.1955 by which Saraswathi Amma obtained the property, it is pointed out that the southern boundary is shown as തതക�ട� വക വസ�ത�, east is shown as road and thodu, west is shown as George Thomas's property and north is Mount Carmel Church's property. A reading of the document shows that the property was sold to Saraswathy Amma by Mary and not by Jose Peter. 14. If as a matter of fact, the northern boundary shown in the plaint is correct, then the southern boundary of the property covered by Ext.A1 should have been 'മ%ര�യ�ശട തകയ�ലന�ന�� സരസ&ത� അമ വ�ങ�യ വസ�ത�.' But it is not so. This is relied on as a ground to show that the plaintiff has no title to the suit property. 15. Though the contention may look attractive at the first blush, on a close scrutiny it can be seen to be S.A.232/1998. 12 without any merits at all. The plaintiff admittedly traces his title through various documents. Merely because in two documents it was shown that it was Mary, who sold the property to Saraswathi Amma, though in the deed relied on in the plaint southern boundary is shown as the property of Saraswathi Amma obtained from Jose Peter and also on the description of the property it could not be said that the plaintiff did not get title to the property. It is significant to notice that the commissioner in his plan and report has located the property claimed by each of the parties and there is nothing to show that the identification made by the commissioner is wrong. There was no attempt from the side of the defendant to show that the commission report is either unreliable or erroneous. The trial court has chosen to accept the same, though the lower appellate court does not discuss about it at all. Prima facie the title vests with the plaintiff especially when the defendant has not done anything to show that the lease set up by her from Thekkekkattu family is correct and it relates to the suit S.A.232/1998. 13 property. 16. Coming to the plea of adverse possession and limitation, both the courts below have held in favour of the defendant. It appears that the trial court was mainly guided by the fact that the building in the property in the possession of the defendant is very old and she and her predecessors have been residing there for a long time. It is also found by the trial court that the property obtained by the plaintiff as per the documents of title relied on by him was outstanding on lease and there was nothing to show that lease has been released and the plaintiff or his predecessors have been in actual possession of the property. At any rate, according to the trial court, even though the defendant had failed to show how she came into possession of the building and she has been in continuous possession and that is sufficient to attract adverse possession and limitation conferring title on the defendant. 17. It is disappointing to note that there is no discussion by the lower appellate court on this aspect. It has S.A.232/1998. 14 not referred to the evidence and the law on the point but simply goes on to hold that the title of the plaintiff is lost by adverse possession and limitation. The lower appellate court seems to be under the impression that it is for the plaintiff to explain the possession of the defendant. The lower appellate court has conveniently forgotten that the suit is based on title and it is covered by Article 65 of the Limitation Act. Once the title is established by the plaintiff, then the burden shifts to the defendant to show how she came into possession and that she has perfected title by adverse possession and limitation. May be that the defendant is residing in the property and the building in which she resides is very old. May be also that she had made improvements in the property. But however long the possession may be, unless she is able to show that she has perfected title by adverse possession, satisfying all the necessary ingredients, she cannot succeed. None of these aspects have been considered by the lower appellate court. S.A.232/1998. 15 18. At the outset itself it may be observed that the defendant never admits the title of the plaintiff. According to her case, her father obtained lease of the suit property from Nani Amma and after the death of her father she came into possession. There is nothing as on record to indicate that Nani Amma ever possessed the suit property nor is there any evidence to show that the father of the defendant had obtained lease from her. It is also interesting to note that the property over which the defendant lays claim is comprised in Sy. No.298/4 whereas the survey number of the plaint schedule property is 296/1.A3. It is also interesting to note that the commissioner in his plan, namely Ext.C3 has located the two properties claimed by the plaintiff and the defendant. In Ext.C3 plan the yellow shaded portion is identified as the suit property and the orange shaded portion is identified as the property comprised in Sy. No.298/4, over which the defendant lays claim. The extent of the plaint schedule property is 25 cents. The property located by the commissioner in Sy. S.A.232/1998. 16 No.298/4 has only an extent of 20 cents. Further the property comprised in Sy.No.298/4 situates far north of the plaint schedule property. 19. One may first refer to Articles 64 and 65 of the Limitation Act. One may also refer to Section 27 of the Limitation Act,which reads as follows: _“2 .-_ _**7. 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._ ” 20. In a suit based on previous possession, it is well settled that the Article that governs the suit is Article 64. When such a suit is laid it is for the plaintiff to prove that he has been in possession within a period of 12 years. Article 65 deals with a situation where the suit is based on title. When a suit is based on title once the plaintiff shows that he has title to the suit property, then the burden shifts to the defendant to show that he/she has been in possession S.A.232/1998. 17 continuously for 12 years and adverse to the interest of the plaintiff and has prescribed title by adverse possession and limitation. Unlike in the ordinary cases where it is said that the statutory period of limitation only bars the remedy and not the right, in case of adverse possession and limitation under Section 27 once it is shown that the suit is not brought within the period of limitation, the right itself is lost. Therefore it must be noticed that when a person succeeds in a claim of adverse possession and limitation, the real title holder loses right over the property and the right passes to the person who is successful in establishing adverse possession and limitation. 21. Distinction between Articles 64 and 65 was considered in the decision reported in **Ramaiah v. N. Narayana Reddy** (AIR 2004 SC 4261). It is unnecessary to refer to the details of the case. 22. The classic definition of adverse possession is _nec vi nec clam nec precario_ . To prove adverse possession as per a typical definition, the person claiming ownership S.A.232/1998. 18 through adverse possession must establish that his possession is actual, open, notorious, exclusive, hostile, under cover of claim or right and continuous and uninterrupted for a statutory period. The statutory period is 12 years. Open and notorious means the person claiming adverse possession involve in acts of possession consistent with the property in issue in a manner capable of being seen. Exclusive means that adverse possessor does not occupy the land concurrent with the true owner or share right in common with the public. It need not necessary that there should be exclusion of all others. But the person claiming title by adverse possession must have been the only person to treat the land in the manner of an owner. Hostility exists when a person possesses the land of another intending to hold that to a particular recognizable boundary regardless of the true boundary line. In other words, possession is hostile to the owner's interest in the property. One cannot claim adverse possession once it is shown that he is in permissive occupation. Under cover of claim or S.A.232/1998. 19 right means the person makes the claim based on actual possession of the property at issue for the statutory period. Continuous and uninterrupted means all elements of adverse possession must be met at all times through the statutory period in order for a claim to be successful. The statutory period prescribed is 12 years from the date of dispossession. 23. One may now refer to the decisions relied on by the learned counsel on both sides. In the decision reported in **Konda Lakshmana Bapuji v. Govt. of Andhra Prades** h (AIR 2002 SC 1012) it was held as follows: _“In Balkrishan v. Satyaprakash (JT 2001(2) SC 357) this court held:_ S.A.232/1998. 20 _“_ The law with regard to perfecting title by adverse possession is well settled. A person claiming title by adverse possession has to prove three “nec” - nec vim nec clam and nec precario. In other words, he must show that his possession is adequate in continuity in publicity and in extent. In S.M.Karim v. Mst. Bibi Sakina (AIR 1964 Sc 1254) speaking for this court, Hidayatullah, J. (as he then was) observed thus: “Adverse possession must be adequate in continuity, in publicity and extent and 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. _In that case the requirement of animus possidendi was not adverted to as on facts it was shown to be present; the controversy, however, was about the other ingredient of adverse possession. It is clear that it must be shown by the person claiming title by prescription that he has been in possession of the land for the statutory period which is adequate in continuity in publicity and in extent with the animus of holding the land adverse to the true owner._ S.A.232/1998. 21 _.......... ..........._ _In the light of the above discussion we hold that the appellant neither proved factum of possession of the land in dispute for period of 30 years nor succeeded in showing that he had animus possidendi for the whole statutory period. Therefore, we cannot but maintain the confirming view of the High Court that the appellant failed to acquire title to the land in dispute by adverse possession. We may also add that the lessee of a Maqtedar (the Inamdar) cannot acquire title to the demised land by adverse possession either as against the State or the Maqtedar (Inamdar) so long as his possession under the lease continues.”_ ## 24. In the decision reported in **Deva v. Sajjan Kumar** ((2003) 7 SCC 481) it was held as follows: _“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 yeas without intention to possess the suit land adversely to the title of the plaintiff and to the_ S.A.232/1998. 22 _latter's knowledge cannot result in acquisition of title by the defendant to the encroached suit land._ _The plaintiff's suit is not merely based on his prior possession and subsequent dispossession but also on the basis of his title to Survey No.452. The limitation for such a suit is governed by Article 65 of the Limitation Act of 1963. The plaintiff's title over the encroached land could not get extinguished unless the defendant had prescribed title by remaining in adverse possession for a continuous period of 12 years.”_ ## 25. 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 rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial_ S.A.232/1998. 23 _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 any person to whom the land rightfully belongs and tends to extinguish that person's title, which provides that no person shall make an entry or distress, or bring an action to recover any land or rent, but within twelve years next after the time when the right first accrued, and does away with the doctrine of adverse possession, except in the cases provided for by Section 15. Possession is not held to be adverse if it can be referred to a lawful title._ _It is the basic principle of law of adverse possession that (a) it is the temporary and abnormal separation of the property from the title_ S.A.232/1998. 24 _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._ _In Halsbury's Laws of England, 1953 Edn., Vol. I it has been stated as follows:_ _“_ At the determination of the statutory period limited to any person for making an entry or bringing an action, the right or title of such person to the land, rent or advowson, for the recovery of which such entry or action might have been made or brought within such period is extinguished and such title cannot afterwards be reviewed either by re-entry or by subsequent acknowledgment. The operation of the statute is merely negative, it extinguishes the right and title of the dispossessed owner and leaves the occupant with a title gained by the fact of possession and resting on the infirmity of the right of the others to eject him.” _It is well recognized proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to_ S.A.232/1998. 25 _constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action._ _........... If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying ” title of the true owner do not arise._ 26. In the decision reported in ## **P.T.Munichikkanna Reddy v. Revamma** ((2007) 6 SCC 59) it was held as follows: _“Adverse possession in one sense is based on the theory or presumption that the owner has_ S.A.232/1998. 26 _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.”_ 27. In the decision reported in **R. Hanumaian v. State of Karnataka** ((2010) 5 SCC 203) it was held as follows: _“Many civil courts deal with suits for declaration of title and injunction against the Government, in a casual manner, ignoring or overlooking the special features relating to government properties. Instances of such suits against the Government being routinely decreed, either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray revenue entries are common. Whether the government contests the suit or not, before a suit for declaration of title against the a Government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of_ S.A.232/1998. 27 _the suit (except where title is claimed with reference to a grant or transfer by the Government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years. In such suits, courts cannot, ignoring the presumptions available in favour of the Government, grant declaratory or injunctive decrees against the Government by relying upon one of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted._ _A court should necessarily seek an answer to the following question, before it grants a decree declaring title against the Government: whether the plaintiff has produced title deeds tracing the title for a period of more than thirty years; or whether the plaintiff has established his adverse possession to the knowledge of the Government for a period of more than thirty years, so as to convert his possession into title. Incidental to that question, the court should also find out whether the plaintiff is recorded to be the owner or holder or occupant of the property in the revenue records or municipal records, for more than thirty years,_ 28 _and what is the nature of possession claimed by the plaintiff, if he is in possession-authorised or unauthorised; permissive; casual and occasional; furtive and clandestine; open, continuous and hostile; deemed or implied (following a title)._ _Mere temporary use or occupation without the animus to claim ownership or mere use at sufferance will not be sufficient to create any right adverse to the Government. In order to oust or defeat the title of the Government, a claimant has to establish a clear title which is superior to or better than the title of the Government or establish perfection of title by adverse possession for a period of more than thirty years with the knowledge of the Government. To claim adverse possession, the possession of the claimant must be actual, open and visible, hostile to the owner (and therefore necessarily with the knowledge of the owner) and continued during the entire period necessary to create a bar under the law of limitation. In short, it should be adequate in continuity, publicity and in extent. Mere vague or doubtful assertions that the claimant has been in adverse possession will not be sufficient. Unexplained stray or spordic entries for a year or_ S.A.232/1998. 29 _for a few years will not be sufficient and should be ignored.”_ 28. Based on the above decisions, learned counsel for the appellant contended that unless the person who claims adverse possession and limitation is aware of the true owner of the property and also unless it is shown that he had an intention to dispossess the true owner to the knowledge of the true owner, the claim of adverse possession cannot succeed. 29. In the decision reported in **Kshitish Chandra Bose v. Commissioner of Ranchi** (AIR 1981 SC 707) reliance is placed on paragraph 8 of the decision, wherein it is stated as follows: _“.......All that the law requires is that the possession must be open and without any attempt at concealment. It is not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner.......”_ S.A.232/1998. 30 ## 30. 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 possession of the claimant must be physical/actual, exclusive, open, 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 the title of the true owner, the period for prescription will not commence.”_ 31 S.A.232/1998. 31. In the decision reported in **Sarala v. The Little Flower Mission** (2004(2) K.L.J. 107) it was held as follows: “ _......In the light of the above and the admitted fact that the defendant is in possession for more than 18years prior to the filing of the suit and the defendant is not claiming any permissive possession under the plaintiff and the possession is open, continuous and as of right the plea of adverse possession is to be answered in favour of the defendant.”_ ## 32. In the decision reported in **Vasantiben Prahladji Nayak v. Somanath Muljibhai Nayak** ((2004) 3 SCC 376) it was held as follows: _“To establish ouster in cases involving claim of adverse possession the defendant has to prove three elements namely, hostile intention; long and uninterrupted possession; and exercise of the right of exclusive ownership openly and to the knowledge of the owner. In cases of adverse possession, the starting point of limitation does_ S.A.232/1998. 32 _not commence from the date when the right of ownership arises to the plaintiff but it commences from the date when the defendant's possession became adverse. Therefore, in the present case, the starting point of limitation for adverse possession cannot be taken as 29.11.1965 and one has to take the date when the respondents' possession became adverse.”_ 33. Based on the above decisions, learned counsel for the respondent contended that it is not necessary that the true owner should be put on notice of the commencement of possession adverse to him by the defendant. Once it is shown that the person who claims adverse possession has been in absolute possession satisfying the ingredients of adverse possession for a statutory period, it is irrelevant that he knew who the true owner is or that he was prescribing adverse possession and limitation against a particular person. 34. When a person claims adverse possession and limitation shows that he has been in absolute possession S.A.232/1998. 33 and enjoyment of the property for a requisite period, it could be treated as a claim against the whole world. The theory of adverse possession is based on the principle that the true owner ought to be vigilant about his rights and should assert his rights before the lapse of time. Viewed from that angle, there may be some substance in the contention of the learned counsel for the respondent. 35. However, going by the principle laid down in the decisions relied on by the learned counsel for the appellant, it would appear that the intention should be not to possess but should be to dispossess the real owner. The decisions relied on by the learned counsel for the appellant go to show that unless and until the person who prescribes adverse possession knows the real owner, there cannot be an animus to possess adversely to that person and dispossess him. 36. In the decision reported in **Kshitish Chandra's case** (supra) relied on by the learned counsel for the respondent after the portion already extracted, it is S.A.232/1998. 34 mentioned that the real owner had full knowledge of the hostile owner and there is no rule that knowledge of the true owner is essential. 37. The lower appellate court has not considered the issue of adverse possession and limitation from the proper perspective and has simply gone on to hold that since the defendant is in possession for a long time, his claim of adverse possession and limitation should succeed. From the principles laid down in the decisions referred to above, it is clear that mere possession however long it may be by itself is not sufficient to satisfy the requirements of adverse possession and limitation so as to deprive the real owner of title to the suit property involved in the proceeding. 38. One may here recollect the case of the defendant who still maintains the stand that she came into possession from Thekkekkattu family through her father and was unable to establish the said fact. So also the claim made by her is in respect of the properties comprised in Sy. No.298/4. It is necessary to ascertain whether even S.A.232/1998. 35 assuming that the defendant has been in possession for a long time, that by itself is sufficient to give her a right by adverse possession and limitation. Her character of possession, her nature of possession, requisite animus etc are to be determined before one can assert that she has perfected title by adverse possession and limitation. 39. In the light of the above discussion, a reconsideration of the issue of adverse possession and limitation is necessary at the hands of the lower appellate court since it has not considered any of the provisions governing adverse possession and limitation and the application of the principles to the facts of the case. In the result, this appeal is allowed, impugned judgment and decree are set aside and the matter is remanded to the lower appellate court for fresh consideration and disposal in accordance with law and in the light of what has been stated above. It is made clear that the remand is only for the purpose of considering the claim of adverse possession and limitation set up by the S.A.232/1998. 36 defendant. The issue regarding title is confirmed as found by the courts below. The parties shall appear before the lower appellate court on 8.8.2011. The lower appellate court shall make every endeavour to dispose of the suit as expeditiously as possible at any rate within a period of four months from the date of appearance of the parties before the lower appellate court. **P. BHAVADASAN, JUDGE** sb.