The Law of Adverse Possession As Observed by Supreme Court of India
The Law of Adverse Possession As Observed by Supreme Court of India
Versus
JUDGMENT
S.B. SINHA, J :
1. Leave granted.
2. These appeals are directed against a judgment and order dated 22-
at Bombay in Second Appeal No. 105 of 2007 and Civil Application No.
280 of 2007 with Second Appeal No. 107 of 2007 and Civil Application
businesses.
incurred loan in the year 1955. He owed a sum of about Rs. 35,000/- to
his creditors.
or about 2-07-1955, four registered deeds were executed. The first being
divided in equal shares (which was marked as exhibit 36) and Bapurao
sold his share of joint family property for a sum of Rs. 5000/- to Shivappa
. He also allegedly sold his self acquired property to Shivappa for the said
absolute right over the properties and were not entitled to alienate the
same.
took place on 20th November, 1977 filed three suits before the Joint Civil
Judge, J.D. Mohol, District Judge, Solapur and Principal District Judge,
Solapur.
The first one marked as Regular Civil Suit No. 81 of 1978 was
filed for declaration that 22 tin sheets in the possession of the appellants
handover the same. Regular Civil Suit No. 85 of 1978 was instituted in
the court of Joint Civil Judge J.D. Mohol for declaration of his title over
the suit properties and possession claiming the same as the heir and legal
representatives of Shivappa.
Regular Civil Suit No. 20 of 1979 was instituted with a prayer for
allowing her to take the income from the property. According to him, the
said agreement which was an unregistered one was executed out of love
allegation that she did not take care of the property and a wall collapsed;
and, thus, breach of terms of the agreement had taken place, a mandatory
decree for injunction was sought for directing handing over the
possession.
that:
(1) the suit property was the self acquired property of Bapurao
Sabale.
creditors.
(3) The fact that as despite death of Bapurao Sabale in the year
the suit property for a period of more than twelve years, acquired
“ISSUES
Does plaintiff prove that his father by an
agreement allowed the defendant No. 1 to entry
(sic) the suit land till her demise on certain
conditions?
colourable.
confidence.
(e) Her possession after the death of Bapurao was also being
11. The learned Trial Judge on the said findings, decreed the said suits.
12. Mr. U.U. Lalit, learned Senior Counsel appearing on behalf of the
appellant fairly did not press the question as regards the validity of
adoption of first respondent stating that even if the same was invalid, first
13. The learned Counsel, however would contend that all the
following circumstances.
(i) Since 1934 the step brothers were living separated having
(ii) All four documents having been executed on the same day
(iv) Even after execution of the said deeds Shivappa or his wife
contended that the suit having been filed during the life time
(b) The plea of the appellant in his written statement that the
(c) Appellant having not filed any suit in terms of Section 31of
the Specific Relief Act, 1963 could not raise the plea that the
(d) The sale deeds as also the deeds of settlement having been
The learned courts below have clearly held that the appellant failed
independently.
family property was correct, it was for him to show that the same was his
despite being step brothers and despite having separate business and
separate houses, were having some joint properties which were acquired
prior to 1944. There does not seem to have any apparent reason to hold
17. It may be true that the other sale deed (Exhibit 49) consisting of 8
stated that Shivappa in fact had paid the entire amount of loan to the
creditors of Bapurao.
19. Submission of Mr. Lalit that the fact that consideration in each of
the sale deed was shown as Rs.5000/- but in the deeds of settlement the
to be believed and we do not see any reason why we should differ with
the concurrent findings of the courts below, all the documents must be
must be held that that was precisely the reason why the deeds of
him.
There is nothing to show that any suit or any other proceeding was
In other words, upon execution of the deed of sale as also the deeds
act of generosity on his behalf but the same by itself would not mean that
the appellant started to possess the lands adverse to the interest of the
respondent.
21. We would proceed on the basis that respondent No. 1 has not been
proved his title the onus was on Laxmibai and consequently upon the
Shivappa.
the parties may have to be taken into consideration. It must also be borne
it was also expected that Bapurao and after his death Laxmibai would file
22. In Prem Singh and Ors. v. Birbal and Ors. [2006 (5) SCC 353], this
court held :
nec clam, nec precario, long possession by itself would not be sufficient
Kalwa Devadattam and Ors. v. Union of India and Ors. [AIR 1964 SC
880]. In that case income tax was due from one Nagappa. The
suits and representing the entire family from other evidences brought on
record, it was found as of fact that the transaction was a nominal one.
The said decision is, therefore, not applicable to the fact of the present
case.
26. For the reasons above mentioned, there is no merit in the appeals.
The appeals are dismissed accordingly with costs. Counsel’s fee assessed
………………………….J.
[S.B. Sinha]
17
..…………………………J.
[Dr. Mukundakam Sharma]
New Delhi;
MARCH 23, 2009