The issue before the Supreme Court in the case of Narasamma & Ors. v A. Krishnappa was whether coexisting pleas of good title and adverse possession are inconsistent.
The respondent, the original plaintiff, had permitted the appellant to occupy a portion of the disputed property rent free on the condition that, upon demand, the property would be returned. The arrangement continued until the appellant attempted to lease the property to a third party and the respondent sought possession. In their defence, the appellant claimed good title: (i) pursuant to a deed of sale in 1976, which was unregistered due to a bar on registration of revenue sites that year; and (ii) they enjoyed adverse possession since the same year.
The trial court rejected the evidence of the deed of sale as it was unregistered and appeared to have been altered in material ways. However, the appellant’s continuous possession since 1976 was found, and the respondent had knowledge of such possession. On appeal, the High Court of Karnataka set aside the judgment on the ground that the specific plea of adverse possession had not been made and the original adverse possessor had not been examined.
Regarding the plea of title, the Supreme Court noted that both lower courts were unanimous in their findings that the deed of sale had not been proved. A power of attorney, the purported deed of sale and the affidavit of the appellant had many discrepancies; the bar or prohibition on registration of the deed of sale had not been explained, and the trial court had made an adverse finding on the testimony of a witness of the appellant. The appellant had, therefore, not proved title on the basis of the deed of sale.
Regarding adverse possession, the court disagreed with the finding of the high court that a specific plea of adverse possession had not been advanced. However, the court agreed that the appellant had not led evidence of adverse possession and that even the purported original adverse possessor had not given evidence.
Relying on an earlier judgement in Ravinder Kaur Grewal & Ors v Manjit Kaur & Ors the Supreme Court approved the legal position that an adverse possessor must satisfy the three classic requirements of adequacy of continuity, adequacy of publicity, and possession adverse to a competitor in denial of title and knowledge, or as it is more popularly formulated without force, without secrecy and without permission.
In the case of Karnataka Board of Wakf v Government of India & Ors, the court had ruled that the inherent nature of a plea of adverse possession is that someone else is the owner of the property. Therefore, a plea of title and adverse possession are mutually inconsistent as adverse possession does not begin to operate until a claim to good title is renounced.
The court further ruled that to establish adverse possession an enquiry about the dispossession of the recorded owner would have to be undertaken, which would be the starting point of such adverse possession. In an earlier judgement of Ram Nagina Rai & Anr v Deo Kumar Rai (Deceased) by LRs & Anr, the court had ruled that where permissive possession was given by an owner and a defendant had claimed title through adverse possession, the starting point of the possession becoming adverse would have to be specifically pleaded and proved, such that the recorded owner would lose title after a period of 12 years from the date when possession became adverse.
On the facts of the case, the appellant had argued that the possession had become adverse on account of consideration that had been paid pursuant to the deed of sale. However, even if the sale transaction had not fructified, the appellant had not pleaded the starting point at which the possession became adverse to the respondent.
In M. Siddiq (Dead) Through LRs (Ram Janmabhumi Temple Case) v Mahant Suresh Das & Ors, the court had ruled that the possession has to be public and to the knowledge of the recorded owner as adverse, as the plea of adverse possession seeks to defeat the rights of the recorded owner. The court in Narasamma, therefore, ruled that the appellant could not advance pleas of title and a plea of adverse possession at the same time and from the same date.
Karthik Somasundram and Sneha Jaisingh are partners at Bharucha & Partners.
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