Effect of claim of adverse possession in Declaratory Suits -By Y.Srinivasa Rao, Judge

‘’If defendant sets-up a plea of adverse possession, he must not only plead but also prove the three requirements as held by the Privy Council in Secretary of State for India v. Debendra Lal Khan (28) AIR 1934 PC 23, wherein it was observed that the ordinary classical requirement of adverse possession is that it should be “nec vi, nec clam, nec precario” and the possession required must be adequate in continuity, in publicity and in extent to show that possession is adverse to the competitor.’’

Introduction: An issue of actual, peaceful, and uninterrupted continuous possession of the person over the suit property for more than 12 years to the exclusion of true owner with the element of hostility in asserting the rights of ownership to the knowledge of the true owner. A person, who claims title over the property on the strength of adverse possession and thereby wants the Court to divest the true owner of his ownership rights over such property, is required to prove his case only against the true owner of the property. The word title or right in the context of immovable property connotes ownership or possession of property with right as was held in SSPDL Limited,rep. by its Managing Director Prakash Challa, Hyderabad Vs. Hyderabad Metropolitan Development Authority, rep. by its Metropolitan Commissioner, Hyderabad and others – 2017 (6) ALT 253. Adverse possession needs to be pleaded and proved with certainty . Whether a person who is in long possession of the property can be become land owner? If so, it is an interest point to see when a trespasser can be become land owner. Under what circumstances, a trespasser can come onto one’s land, occupy it, and gain legal ownership of it. This is what we now call ‘Adverse possession’. Adverse possession is a legal theory under which someone who is in possession of land owned by another can actually become the owner if certain requirements are met for a period of time defined in the statutes of that particular jurisdiction. A party who claims adverse possession must plead and prove that his possession is peaceful, open and continuous and it 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. See. 2016 (3) ALT 12 – G.Narayan Reddy Vs. P.Narayana Reddy.

What is ‘Adverse possession‘ and what are the requirements of it; how to consider whether it is adverse possession or not; what is the specified period of time to claim adverse possession; what is the period of limitation; and , mainly, ”what is the effect of claim of adverse possession on declaratory suits” are some of the important points which are discussed in this article. It is seminal to remember that plea of adverse possession is not a pure question of law but a blended one of fact and law.

Adverse possession:- Before discussing the theory of ‘adverse possession’, it is very important to know the dicta observed by the Privy Council in Secretary of State for India v. Debendra Lal Khan (28) AIR 1934 PC 23. In this case, it was observed that ”the ordinary classical requirement of adverse possession is that it should be “nec vi, nec clam, nec precario” and the possession required must be adequate in continuity, in publicity and in extent to show that possession is adverse to the competitor.” By pleading adverse possession a party admits the initial title of the opposite party which however is said to be extinguished. It is well-settled law that acquisition of right Acquisition of right to property occurs only if possession of property transferred was delivered to the transferee or if transferee is entitled to recover possession on the basis of transfer from the transferor or any other person who is enjoying it – See. R.V.S. Vara Prasad and others Vs. Dr.V. Ramdas (Died) per L.Rs. – 2014 (1) ALT 488 ( D.B. ). 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.) In P. Periasami v. P. Periathambi 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. In Cheedella Padmavathi’s case, 2015 (5) ALT 634, it was held that a person pleading advverse possession has no equities in his favour, since he is trying to defeat the rights of the true owner, thus it is for him to clearly plead and establish all facts necessary for adverse possession. 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.

See. Apex Court ruling chatti Konati Rao and Ors. Vs. Palle Venkata Subba Rao. 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.See. Mahesh Chand Sharma (Dr). Vs. Raj Kumari Sharma, (1996) 8 SCC 128.  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 until possessor holds property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession.  

Effect of claim of adverse possession:-

Effect of claim of adverse possession relating to the partition of property uder Hindu law is discussed in Mettubandi (died) per L.Rs. Vs. T. Lakshmamma and others, 2016 (4) ALT Page 1. In this case, it was observed that when the plaintiff failed to prove that he and his brother contributed money for the purchase of schedule property and when it is in the name of his brother and after him, in the name of his L.Rs. in the records and in their possession and enjoyment, the property is not liable for partition as plaintiff failed to initiate any legal action in time and as L.Rs. of his brother have also perfected their title to property by adverse possession.

Mere long possession without adverse animus:- It is well-settled law that mere long possession of a property without adverse animus against real owner will not ripen into title. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. See. Karnataka Board of Wakf’s case, (2004) 10 SCC 779. 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 of the property and asserts a right over it. adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is nec vi, nec clam, nec precario, that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina, Parsinni v. Sukhi and D.N. Venkatarayappa v. State of Karnataka.) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession (b) what was the nature of his 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. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma.]

It is now a well-settled principle of law that mere possesssion of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in the said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more does not ripen into a title. See. Annakili v. A. Vedanayagam (3) 2008 (2) SCJ 218.

In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant possession becomes adverse.(See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak). Animus possidendi’ is one of the ingredients of adverse possession.Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Md. Mohammad Ali v. Jagadish Kalita, SCC para 21.). The said statement of law was reiterated in T. Anjanappa v. Somalingappa stating: (SCC p. 577, para 20).

Adverse Claim against Government property:- Whether the Government contests the suit or not, plaintiff, who is in possession of government property and seeks injunction against government, should establish adverse possession for a period of more than 30 years before a suit against government is decreed ex parte Court should also find out the nature of possession claimed by plaintiff whether it is authorized or unauthorized or permissive, etc. While considering application filed by government for condonation of delay in filing application for setting aside ex parte decree, a certain amount of latitude is not impermissible as there is likely to be procedural delay incidental in the very nature of government functioning and in the decision making process and as adoption of strict standard of proof leads to grave miscarriage of public justice and loss of public property. See. Chilkuri Narsimha (died) per L.Rs. Vs. District Collector, Ranga Reddy District and another – 2015 (6) ALT 98. After amendment of Section 6 of Hindu Succession Act, 1956 by Central Act 39 of 2005, a married daughter is also entitled to a share in joint family property as a copercener as a son if the property was not partitioned by 20-12-2004. See. Burugupalli Sesharatnam’s case – 2015 (4) ALT 412.

Mere injunction without seeking a prayer for declaration of title :- A suit for mere injunction without seeking a prayer for declaration of title is maintainable as persons in possession of property can resist interference with the said property on the strength of possession alone. See. Ediga Ranganayakulu (Died) per L.Rs. Vs. B. Venkatesu and others – 2015 (3) ALT 481. In M. Kallappa Setty v. M.V. Lakshminarayana Rao (1) AIR 1972 SC 2299, the Supreme Court held that plaintiff can, on the strength of his possession, resist interference from persons who had no better title than himself to the plaint schedule property. In that case, the Supreme Court, having found that the plaintiff failed to establish his title to the plaint schedule property but was found to be in possession on the date of the filing of the suit, granted injunction in favour of the plaintiff. In Chepana Peda Appalaswamy v. Chepana Appalanaidu and others (2) 1996 (2) ALT 389, a learned single Judge of this Court also held that a suit for mere injunction without seeking a prayer for declaration of title is maintainable. Similar view has been taken in Karuppana Goundar and another v. V.C.T.N. Chidambaram Chettiar and another (3) AIR 1936 Madras 963 and Fakirbhai Bhagwandas and another v. Maganlal Haribhai and another (4) AIR 1951 Bom. 380. In Rame Gowda v. M. Varadappa Naidu (5) (2004) 1 SCC 769 = 2004 (2) ALT 24.1 (DN SC), the Supreme Court held that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against the entire world but a rightful owner, and that when facts disclose no title in either party, possession alone decides. Thus as a matter of law, a suit for mere injunction without seeking a prayer for declaration of title is maintainable.

In Paladugu Ramesh Vs. Shaik Begum Bee (died) per L.Rs. and others – 2015 (3) ALT 167, it was held that Suit for perpetual injunction in respect of property covered by an agreement of sale without seeking relief of specific of performance of such agreement may be maintainable only in case the plaintiff proves that there was delivery of possession and he continued to be in possession of the property or has done something in furtherance of the said agreement but not when he commits default under the agreement of sale. It was also observed that even though a suit for specific performance of a contract is barred by limitation, the law of limitation does not come in the way of the transferee taking plea under Section 53-A of TP Act to protect his possession of suit property if he fulfils the necessary conditions.

Adverse claim on Inam land:- When once the disputed land is determined as inam land of a religious institution and ryotwari patta is issued under Section 7 of A.P. Inams Abolition Act of 1956 by the competent authorities in favour of the institution, neither the plea of adverse possession set up nor the title claimed under a sale deed would entitle a party to claim compensation concerning the said land in the absence of valid title to convey. See. Kesavlal Vs. Land Acquisition Officer-cum-Special Tahsildar (LA), Tirupati and another – 2015 (3) ALT 230 (D.B.). In Pushpagiri Math v. Kopparaju Veerabhadra Rao (1) 1996 (5) Supreme 281 = 1996 (3) ALT 23 (D.N.), it was held that Under the A.P. Inams Abolition and Conversion into Ryotwari Act, Act 37/56, after the Act had come into force, the pre-existing right, title and interest stood extinguished and the new rights were sought to be conferred under Section 3 read with Section 7 thereof either in a suo motu enquiry under Section 3 or on an application under Section 7. A new grant of ryotwari patta is to be made by the Tehsildar by way of an order after enquiry to the extent of entitlement as per law. It would be subject to an appeal to the Revenue Divisional Officer which becomes final.

In Peddinti Venkata Murail Ranganatha Deslka Iyengar and others v. Govt. of A.P. and another [JT 1996 (1) SC 234], a Bench of two Judges of Hon’ble Supreme Court (in which one of us K Ramaswamy J. was a member) had considered the scope and operation of the Act. While considering the constitutional validity of Section 75 of the A.P Charitable and Hindu Religious Institution and Endowments Act 1987, the Court held that a person or institution or the tenant in occupation is entitled to ryotwari patta in respect of the land. The institution is entitled to the extent of 2/3 and the tenant or person is entitled to ryotwari patta to an extent of 1/3 share. The grant of ryotwari patta under Section 7 becomes conclusive overriding the effect given by Section 15 over any other law. It would therefore be clear that after the Inam stood abolished the preexisting rights extinguished and the obligation to render service burdened with the land was relieved. The holder of the land became entitled to free hold ryotwari patta. Thus the pre-existing right, title and interest stood extinguished.

Whether the suit for declaration of ownership and injunction is maintainable on the basis of adverse possession? As was held in Saraswati Bhagat Vs. Eshwaramma @ Lakshmamma (died) per L.R. and others – 2016 (4) ALT 17 , adverse possession need not always be used as a shield or defence.

The Hon’ble Division Bench of Andhra Pradesh High Court held that the right of the owner over the land was extinguished when the government took possession of the land after an award of compensation was made under the 1894 Act. See. D. Mahesh Kumar Vs. State of Telangana, Department of Revenue, rep. by its Principal Secretary, Hyderabad and others – 2017 (1) ALT 400 (D.B.). The golden rule of construction is to read the statutory language, grammatically and terminologically, in the ordinary and primary sense which it bears in its context, without omission or addition.

In P S R Yethiraj Vs. P.S.R.Rama Rao – 2016 (6) ALT 398,  the plaintiff has sought relief of declaration of title and recovery of possession from the defendant. In this case, the Court held as infra ‘There is no plea of adverse possession raised by defendant in the written statement to defeat the title of plaintiff which he had acquired under Ex.A.2 sale deed in respect of Ac.0.50 cents of land alienated to him by defendant. It is the admitted case of defendant that he is in possession of the property. Once title is found to be with plaintiff under Ex.A.2, and plaintiff has not been divested of title under any registered conveyance in favour of defendant subsequently, the plaintiff would be entitled for the reliefs of declaration of title as well as for the recovery of possession’’.

In the decision in Chatti Konati Rao v. Palle Venkata Subba Rao (8) 2011 (1) ALT 46 (SC) = (2010) 14 SCC 316 , it was held in support of the settled proposition of law that mere possession however long does not necessarily mean that it is adverse to the true owner and that adverse possession really means the hostile  possession which is expressly or impliedly in denial of the title of the true owner and that in order to 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 and that the classical requirements of acquisition of title by are that such  possession in denial of the true owners title must be peaceful, open and continuous. See also. Durgampudi Padmamma Vs. Kallutla Kottamma (died) and another – 2016 (5) ALT 739.

Till a document is set-aside, though it is invalid, it is operative on the parties to the document and the parties thereto are entitled to enforce the terms there under. It is well-settled law that Normally the pleadings in rural areas have to be construed liberally; merely because the pleadings are inartistic they cannot be thrown away. Hindu Undivided Joint Family is wider than Hindu Undivided Coparcenary since the coparcenary consists of lineal male descendants earlier, now both lineal male and female. The law is well settled that an old partition can be inferred basing on the surrounding circumstances like mutation of property, shares of individuals in the revenue records and municipal records, transactions of sale subsequent to the partition would form the basis to infer that the partition was real and acted upon. See. K.V. Janaradhanam Chetty and another Vs. K.V. Jaya Kumar and another – 2016 (5) ALT 609.

In Gorige Ailamma Vs. Utkoori Somaiah and others – 2015 (2) ALT 467 , it was held that Where a party is seeking declaration of title and recovery of possession, burden lies on such a party to adduce satisfactory evidence to prove his title and possession. He has to succeed only on the strength of his case and not on the weakness of case set up by defendants.  In para 38, it was observed that Even if a person fails to prove his title claimed by him, as per law by not obtaining any registered sale deed and by not applying Section 54 of T.P. Act, his long and continuous hostile possession denying the title of the owner is sufficient to prove his adverse possession.

The plea of adverse possession is a double edged sword:-

Any plea of adverse possession contains an admission that the opposite party is the owner of the property, but the said title of the opposite party has been extinguished because of the open hostile possession with animus by the claimant for the statutory period Therefore, by pleading adverse possession a party admits the initial title of the opposite party which however is said to be extinguished. See. See also. Uppara Anjinappa’s case infra.

In Union of India v. Vasavi Co-op. Housing Society Ltd. (1) 2014 ALT (Rev.) 28 (SC) = AIR 2014 SC 937, it was held that The plea of adverse possession is a double edged sword. In suit for declaration of title, the burden is squarely on the plaintiffs to prove their title and also their possession and enjoyment of the suit schedule property. The learned counsel for the respondents/ defendants cited a judgment which reiterated the position of law that is well-settled. See also. Uppara Anjinappa (died) and others  Vs. T. Khasim Sab (died) per Legal represetatives & Ors.- 2018 (5) ALT 511.

In many suits for declaration of suit, the parties usually heavily relies on revenue records. But, it is well-settled law that the revenue records by themselves cannot be treated as documents of title. However, the fact remains that both under Section 35 of the Indian Evidence Act and because of the fact that they are the result of a physical exercise done on the land, they do have a certain evidentiary value, particularly the 1929 Resettlement Register.

It was held in Seelam Mallaiah (died) per LRs.and others Vs. P. Narasinga Rao (died) per LRs. and others – 2017 (3) ALT 228, de-exhibited from the record Ex.A-1, agreement to sell, shall hold good but, since Ex.A-3 is de-exhibited from the record, the plaintiffs cannot claim possession of the suit property w.e.f. 5-3-1988, as recited in Ex.A-3.

Period of limitation:- The law is well settled that when a person acquires title by adverse possession and the real owners fail to recover possession from such occupant of the property within the statutory period, the right of the owners to such property stands extinguished at the determination of the period limited to owners for instituting a suit for possession of the property. Therefore, this section of law of limitation not only bars the remedy of the real owners but also extinguishes their title/right to the property. See. Section 27 of the Indian Limitation Act; Durgampudi Padmamma Vs. Kallutla Kottamma (died) and another – 2016 (5) ALT 739.

Section 65 of Limitation Act governs the suit for possession based on title – Period of limitation for such a suit is 12 years when possession of defendants became adverse to the plaintiff, Pidikiti Venkatarathnam v. Dr. Ramanavarapu Sampath Kumar – 2010 (5) ALT 136. In the absence of plea of adverse possession, the issue as to suit being barred by limitation does not arise for a decision in second appeal.(Para 6.8), Kasa Muthanna and another Vs. Sunke Rajanna and others – 2016 (1) ALT(REV.) 98 .

In fact, after the Limitation Act, 1963 came into operation, it is not necessary for the plaintiff to state when she is dispossessed unlike under the Limitation Act, 1908; and if the petitioner were to establish title, she would be entitled recovery of possession unless the defendant establishes better title and he is able to prove that he has acquired such title by adverse possession. See. 2019 (4) ALT 191 -Smt. P. Shailaja Kumari @ Shaila Kumari, Hyderabad Vs. Vasantha Malavika and another. The scope of Section 27 and Articles 64 and 65 of the Limitation Act, 1963 are dealing with right of recovery of possession  and not with title, though Section 27 alone speaks of person claiming adverse possession  by prescription to seek for declaration. Of which, as per Article 64 of the Act, 1963 for possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed, the limitation period is 12 years from date of actual dispossession; whereas, as per Article 65 of the Act, 1963 for possession of immovable property or any interest therein based on title (and not on previous possession and with no need of saying when the plaintiff was and if so, while in possession of the property has been dispossessed), the limitation period is 12 years, when the possession of the defendant becomes adverse to the plaintiff. (Para 27 (iv)).

Section 65 of Limitation Act governs the suit for possession based on title – Period of limitation for such a suit is 12 years when possession of defendants became adverse to the plaintiff. – Pidikiti Venkatarathnam v. Dr. Ramanavarapu Sampath Kumar – 2010 (5) ALT 136 . It is now well-settled principle of law 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. It is observed by the Hon’ble Supreme Court in Mallikarjunaiah Vs. Nanjaiah and others – 2019 (3) ALT (Supreme Court) 277, Division Bench.

In V. Suryanarayana Vs. P. Dalenna – 1983 (1) ALT(NRC) 63.1  it was held that Once a person was inducted into possession pursuant to an oral sale, for want of requisite legal form policies, though title was not secured, yet when the vendee was allowed in continuous and uninterrupted possession and enjoyment for full statutory-period, the vendee acquires title by prescription. Thereafter even any attempt made to get a regular sale deed from the Vendor, unless the facts and circumstances lead to draw an irresistible and irrefutable inference that the Vendee was animated that his possession continued to be permissive and acquired no title, the admission of title of Vendor thereafter made does not wipe out the prescriptive right already acquired. Mere menial animation of the -Vendor of his being the owner does not by itself – sufficient. It does not have the effect of interrupting running of adverse possession thus started nor amounts 10 break up of the exclusive possession  of the vendee. It gets effected   only by change of possession of the vendee on his disposession or such other legally acceptable means. In this case, the appellants and weir predecessor have lost their title. They possession for 12 years prior to suit. Tie appellants acquired no valid title to the plaint secure are not in possession at any time in pursuance of their sale deeds. Thus the respondent, has acquired title by adverse possession to the plaint schedule property.

Possession – Injunction:- It is a settled principle of law that in order to claim prohibitory (temporary or permanent) injunction, it is necessary for the plaintiff to prima facie prove apart from establishing other two ingredients, namely, irreparable loss and injury that his possession over the suit land is “legal”. This being a simple suit for grant of permanent injunction between the two private parties in relation to the land which was subject matter of the State Ceiling Laws, was liable to be dismissed on the short ground apart from many others as detailed above that any order that may be passed by the Civil Court would adversely affect and interfere in the rights of the State under the Act, which had not been impleaded as party defendant. In the Hon’ble Court finds that no quarrel with the general proposition of law laid down in Nagubai Ammal and others v. B. Shama Rao and others, Bhagwati Prasad v. Shri Chandramaul, Pinninti Kishtamma and others v. Duvvada Parasuram Chowdary and others, State of Tamil Nadu v. Ramalinga Samigal Madam, Annamreddi Bodayya and another v. Lokanarapu Ramaswamy (Dead) by L.Rs., Anathula Sudhakar v. P. Buchi Reddy (D) by L.Rs., Rajendra Singh and others v. State of U.P. and others and Karnail Singh v. State of Haryana and another.

Conclusion:- It is a settled principle of law of adverse possession that the person, who claims title over the property on the strength of adverse possession and thereby wants the Court to divest the true owner of his ownership rights over such property, is required to prove his case only against the true owner of the property. It is equally well-settled that such person must necessarily first admit the ownership of the true owner over the property to the knowledge of the true owner and secondly, the true owner has to be made a party to the suit to enable the Court to decide the plea of adverse possession between the two rival claimants. It is only thereafter and subject to proving other material conditions with the aid of adequate evidence on the issue of actual, peaceful, and uninterrupted continuous possession of the person over the suit property for more than 12 years to the exclusion of true owner with the element of hostility in asserting the rights of ownership to the knowledge of the true owner, a case of adverse possession can be held to be made out which, in turn, results in depriving the true owner of his ownership rights in the property and vests ownership rights of the property in the person who claims it. See. Dagadabai(Dead) by L.Rs Vs. Abbas @ Gulab Rustum Pinjar, 2017 (3) ALT(SC) 17 ( D.B. ). It is well-recognised proposition in law that mere possession  however long does not necessarily mean that it is adverse to the true owner. (Girajala Subbarao ‘s case – 2015 (6) ALT 55). Further, it is well-settled law that The question as to who is in possession of the suit property is essentially a question of fact Such question is required to be decided on appreciation of evidence adduced by the parties in support of their respective contentions. See. Agnigundala Venkata Ranga Rao’s case reported in 2017 (1) ALT(REV.)(SC) 85 ( D.B.). One cannot dispute the legal proposition being well settled that the question as to who is in possession of the suit property is essentially a question of fact. It is only when such finding of fact is found to be against the pleading or evidence or any provision of law or when it is found to be so perverse or/and arbitrary to the extent that no judicial person of an average capacity can ever record, the same would not be binding on the higher Courts and may in appropriate case call for interference.

The activist approach of the English Courts is quite visible from the judgments of Beaulane Properties Limited v. Palmer (2005) 3 WLR 554 and JA Pye (Oxford) Limited v. United Kingdom (2005) 49 ERG 90. 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 have widened so much that now property dispute issues are also being raised within the contours of human rights.” In similar circumstances, in Ramaiah v. Singaraiah (35) 1973 (2) APLJ 10 (SN), held as follows: “Each factor by itself may be decisive, but the cumulative effect or the totality of all the relevant and material factors should be the safe guide for determining the benami nature or otherwise of a transaction.”

As per Limitation Act, 1963, if a plaintiff establishes his title, he is entitled to recover possession. The burden to prove perfection of title by adverse possession rests upon defendant who raises such a plea. See. Thota Kameswara Rao Vs. Thota Ramgopal – 2015 (2) ALT 317 ( D.B. ). The person who pleads adverse possession must not only prove the factum of continuous possessionfor over 12 years but also prove that such possession was open and adverse to the actual owner.