Noor Aftab Parveen and others vs H.N. Chandrashekar by lrs. Regular Second Appeal 864/2015 decided on 15 January 2021.
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/359967/1/RSA864-15-15-01-2021.pdf
Relevant portion page 23: The claim of adverse possession requires fulfillment of the three criteria concurrently which are:- (a) nec vi – adverse in continuity (b) nec clam – adverse in publicity (c) nec precario – adverse to a competitor in denial of title and to his knowledge.
The claim of adverse possession cannot run concurrently with acceptance of title. The judgment of Apex Court in the case of Karnataka Board of Wakf v. Government of India and Others (2004) 10 SCC 779 as regards this aspect further sheds light and the following extract need be noticed.
“12. A plaintiff filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. (See S.M.Karim v. Bibi Sakina [AIR 1964 SC 1254].) In P. Periasami v. P. Periathambi [(1995) 6 SCC 523] this Court ruled that: (SCC p.527, para 5) “Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property.” The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.
Another aspect that needs to be noticed is that mere possession without the requisite animus would not turn possession into possession which is adverse. In fact, as regards to the construing of “intention to dispossess” in the case of Powell v. McFarlane and Another 1979 (38) P. & C.R. 452, it was observed as follows:-
“(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (“animus possidendi”)
“…..If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.”
The right of the plaintiff to sue for possession would remain till the defendant acquires positive title by adverse possession so as to extinguish the plaintiff’s right, which alone would result in extinguishment of plaintiff’s right under Section 27 of the Limitation Act.
Compiled by S. Basavaraj, Advocate, Daksha Legal.
Daksha Legal 