Adverse possession
If the possession is actual, open, uninterrupted, notorious, exclusive and continuous over a statutory period, it confers an indefeasible title upon the possessor. The extent of the title acquired by adverse possession depends on the extent of the claim or right under which possession is obtained and kept. To constitute possession in the claim of the possessor must be effectively realised in the facts. It is sufficient if the possession is overt without any attempt of concealment. That possession to the extent to which it is capable of demonstration must be hostile, notorious and exclusive to make it adverse, and will only extend to the land in actual occupation of the wrong doer. All these elements of hostile possession are present in this case and the defendant has been able to prove it by ora and documentary evidence. The trial court has rightly held the extinguishment of plaintiffs title by adverse possession.
The Appellate Division held that admittedly the defendant in assertion of his right has mutated his name and has been paying rent to the government and possessing the suit land to the knowledge of the plaintiffs since 1974 claiming as owner. This possession of the defendant in assertion of his right is no doubt to be treated as hostile possession to the knowledge of the true owners. The plaintiffs are totally silent why they did not take any step for eviction of the defendant had he been a borgader under them even after knowing that the defendant has mutated his name in the record-of- right and has been paying rent. Therefore, the court of appeal below wrongly disbelieved the claim of adverse possession by the defendant or in the alternative, it t can be said that the court of appeal below has failed to comprehend the accrual of title by adverse possession in a disputed land. The High Court Division committed similar error in affirming that judgment. The defendant has been possessing the suit land as of right adversely to the knowledge of the plaintiffs for 20 years. He has mutated his name and has been paying rent throughout this period. If this act of possession in assertion of right is not matured into title, what else will create title by adverse possession? Therefore, the trial court is perfectly justified in dismissing the suit. The High Court Division has totally overlooked the facts proved by the in support of his claim of hostile possession and on misconception of law it has affirmed the judgment of the court of appeal below. The case considered by the High Court Division squarely supports the case of the defendant. The High Court Division misconstrued the decision in failing to consider that in that case, it has been held that if there is a complete ouster by asserting hostile title, the plaintiff's title is extinguished, inasmuch as, he has lost his title by the acts of the defendant who having been in possession denying the plaintiff's title openly. The appeal, is therefore, allowed. [2022] 25 ALR (AD) 50
Adverse possession.
Mere possession, however long or
continued may be, does not necessarily mean that it is adverse to the true
owner. Adverse possession means a hostile possession which expressly or
impliedly in denial to the title of the true owner.
In the instant case, the Appellate
Division finds that defendant Nos. 1-5 have got no claim of valid title and
their possession is not notorious and hostile to the true owner. Thus, the
Appellate Division is not in a position to hold that defendant Nos. 1-5
acquired statutory title by way of adverse possession. Over and above, a
monthly tenant cannot claim adverse possession for his rented premises for completing
twelve years continuous possession and his possession cannot be treated as
hostile and notorious. The Appellate Court being the last Court of fact arrived
at a decision that defendant Nos. 1-5 were the monthly tenants under defendant
Nos. 6-8. The learned Advocate appearing on behalf of the plaintiff-respondents
argued that the last Court of fact has seen defendant Nos. 1-5 as tenants under
defendant Nos. 6-8 and these findings of the Appellate Court had not been
shaken in any way as it appears from the facts, the circumstances and the
evidence on record and as such, there is no scope to interfere with such
finding. The Appellate Division also hold the view that possession of a monthly
Varatia (tenant) cannot be constituted as acquisition of adverse possession.
Defendant Nos. 1-5 have neither filed any suit in respect of acquisition of
adverse possession nor any suit for specific performance. It is settled
proposition that time is the essence of contract. But after expiry of long
time, defendant Nos. 1-5 made no attempt to obtain a decree for specific
performance. Thus, defendant Nos. 1-5 are being in possession of the suit
premises without having any title. The Appellate Court termed it as a monthly
tenant as has been alleged by the appellant and the Appellate Division also
hold the view that on the basis of such type of possession, there is no scope
to acquire the statutory title like adverse possession. Having considered all
those facts, the circumstances and the evidence on record, the Appellate
Division finds that there is no substance in the argument advanced by the learned
Advocate appearing on behalf of the defendant-appellants. In the light of the
facts and circumstances discussed above, the Appellate Division does not find
any illegality or infirmity in the impugned judgment, which in the Appellate Division
view does not call for any interference. Accordingly, the appeal is dismissed.
Mohammad Abdul Haque Chowdhury and others -Vs.-Mohammad Abed Ali Khan and
others (Civil) 18 ALR (AD) 173-180
Case of title by adverse possession and on the basis of documents cannot be claimed simultaneously.
11286 BLT(AD)350: Pushpa Rani Saha Podder Vs. Rash Mohan Saha being dead his heirs Kartick Chowdhury Saha & others: Section 115(1) of the Code of Civil Procedure: A case of title by adverse possession and a case of title on the basis of document cannot be claimed simultaneously but in the instant case the plaintiffs tried to do so. (Para-18, Mr. Justice M.M. Ruhul Amin).
Uninterrupted possession more than 12 years
61 DLR 509: Gopal Chandra Das & others Vs. Nikunja Behari Sukra Das & others: Section 18 of the Limitation Act, 1908: The Courts below ought to have considered the right of adverse possession acquired by the plaintiff by way of uninterrupted more than 12 years adverse possession which is liable to be interfered by this Court. (Para-11, Mr. Justice Syed AKM Dabirush-Shan). Ref: 7 MLR(AD)249-54 DLR(AD)173, 50 DLR(AD)70, 47 DLR(AD)162.
Without claim title by adverse possession, entitled to get title
17 BLT(AD)300:Nurjahan Begum Vs. Nur Rahman & others: Section 115 of the Code of Civil Procedure: The defendant No.1 failed to prove the oral gift by the evidence of DW.5 who deposed that he did not see the mother of defendant No.1, both the trial Court as well as the appellate Court below also concurrently found that the oral gift dated 15.12.73 has not been proved. But since the possession of the defendant No. I has been proved for more than 12 years. He is entitled to get title even on the basis of invalid title though the defendant No.1 did not specifically claim title by adverse possession vide the decision reported in 7 DLR 94. There is no illegality or infirmity in the above decision so as to call for any interference. (Para-7, Mr. Justice Md. Tafazzul Islam). Ref: 7 DLR 94.
Adverse Possession
6 ADC 721: Rowshan Ara Begum & others Vs. Sitakundu Chandra Nath Chatuspaty Tole & others: Order 20 Rule 9 of the Code of Civil Procedure: No evidence was lead from the side of defendants to establish the case of acquisition of title in the land in suit by adverse possession. It has also been submitted from the side of the appellants that in case decree is passed in the suits that would violate the provision of Rule 9 of order 20 of the Code of Civil Procedure. The submission so made is of no merit since description of the land in suit as given in the schedule is quite sufficient to identify the same both by referring to the boundary as well as by referring to the survey plot number. (Para-16, Mr. Justice Md. Ruhul Amin). 29 BLD 576: Soleman & others Vs. Abdul Hakim & others: It is well settled that if a person is in possession of a land under an invalid deed, which he also claims as invalid, such possession can be considered possession adverse to the true owners. Finding of title on adverse possession is only possible if the case of adverse possession is specifically made out in plaint and an issue framed thereof, thereby giving a chance to parties to adduce evidence in proof or disproof of the case of adverse possession. Since no specific case of adverse possession was made out by plaintiff in plaint or any issue was framed, the finding of alternative title on adverse possession by learned Judge of Court of appeal below in favour of the plaintiff is illegal and erratic and as such not tenable in law. (Para-14, Mr. Justice Syed Md. Ziaul Karim). Ref: 8 BLC(AD)77. 6 ADC 229: Shahabuddin & others Vs. Mahtab Uddin & others: The High Court Division held that from the evidence on record it is clear that defendant Abdul Haque resided in the suit land for over 35 years and he was brought up by Firoj Ali from his boyhood and was given in marriage by Firoz Ali and after his death his heirs and the present defendants have been residing in the suit land and that Abdul Haque constructed dwelling hut in the suit homestead. (Para-6, Mr. Justice M.M. Ruhul Amin). Acquire title by adverse possession 14 BLC(AD)97= 14 MLR(AD)218: Md. Ali Bepary & others Vs. Garupranjan Chakraborty & others: Article 144 of the Limitation Act, 1908: To enable a plaintiff to acquire title by adverse possession, his possession must be of actual, open, notorious (কুখ্যাত) and hostile (বৈরী) character as to amount to ouster of exclusion of the real owner. (Para-5, Mr. Justice Mohammad Fazlul Karim).
In S.M Karim Alias Tamanna Sabeb v. Mst Bibi Sakina ., [1964] 6 SCR 780 speaking for this Court Hidayatullah, J. (as he then was) observed thus: Adverse possession must be adequate in continuity, in publicity and extent 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. Sk. Mukbool Ali v. Sk. Wajed Hossein, (1876) 25 WR 249 the High Court held:
Whatever the decree might have been, the defendant's possession could not be considered as having ceased in consequences of that decree, unless he were actually dispossessed. The fact that there is a decree against him does not prevent the statute of limitation from running. Govindammal v. R. Perumal Chettiar, (2006) 11 SCC 600 wherein it was held: In order to oust by way of adverse possession, one has to lead definite evidence to show that to the hostile interest of the party that a person is holding possession and how that can be proved will depend on facts of each case.