STATE OF KERALA Vs. RAGHAVAN ACHARY

JUDGEMENT

(1.) A suit for declaration of title and injunction was decreed by both the courts below against which the defendant - State Government, came up with this appeal. The plaintiff claims adverse title over an extent of 14.350 cents of property, the 'B' schedule in the plaint, on the allegation that it was the part of 35 cents of property in the possession and enjoyment of his father for more than 50 years and that his predecessor had planted several trees in that property. In the year 1965, his father had obtained Pattayam over 19 cents of property out of the large extent of 35 cents from the Government. It is out of that 19 cents, the plaint 'A' schedule - 2 cents was given to the plaintiff by his father under Ext.A1 settlement deed dtd. 29/6/1990, wherein the plaint 'B' schedule was also included. The plaintiff claims that he had perfected title by adverse possession and limitation by his long, continuous and hostile possession of 'B' schedule property for a period of more than 50 years in continuation of his predecessor-in-interest, his father. The Commissioner who visited the property prepared Exts.C3 to C5 and reported that the plaint schedule property is lying as a single compact plot with four different terraces. Trees ranging from 10 to 35 years old age situated in the property also reported. Based on the age of the trees and the building constructed in the year 1970 abutting into the 'B' schedule, the trial court found the possession of plaintiff in continuation of his predecessor-in-interest for a long period of 50 years and decreed the suit declaring acquisition of title by adverse possession. In appeal, the first appellate court found possession for the required period of 30 years and concurred with the decree of trial court and dismissed the appeal based on the age of trees, building construction and also on the ground that the State Government did not auction the right to collect usufructs from the said property periodically.

(2.) The essential questions came up for consideration are : (1) whether a clandestine act of possession in secrecy over an immovable property would constitute an "open assertion" of act of possession in derogation of the interested persons so as to acquire a prescriptive title and (2) what would be the quality of "open assertion" of hostile animus to hold the property, when it is against the Government or public property.

(3.) Both the courts below committed a very serious mistake in appreciating what actually amounts to acquisition of adverse title. A mere possession for a long period itself will not constitute adverse title. The classical requirement nec vi nec clam nec precario mandates an open assertion of hostile animus to hold the property in derogation of all interested persons including the owner of the property. The exercise of hostile animus to hold the property in derogation of the original owner and all interested persons should be an open assertion coupled with specific act of possession over the property. It should be capable of giving notice to all concerned including the original owner. As against the State Government or the property belonged to the Government, the open assertion should also satisfy its quality to bring the hostile possession to the notice of the officials, who are bound to protect the property of the Government. The Government cannot maintain dayto-day vigil over all its properties. It is impracticable to put all the properties of the State Government including poramboke land under close surveillance against encroachment or trespass. A mere planting of some seedlings in the property by itself may not be sufficient to give notice of factum of exercise of hostile possession in derogation of title and interest of the Government or the general public. But as against a private property, a trespass or encroachment by planting some plants or seedlings would be sufficient to give notice of factum of possession and exercise of hostile animus against its owner and all interested. But the quality of open assertion in the matter of public property or Government land requires something more akin to a declaration of intention to hold the property as against the whole society, the general public and the State Government. The mere fact that there were trees ranging from 10 to 35 years old age in the Government land does not by itself constitute an open assertion of animus to hold the property to the notice of the Government. Further, the fact that the Government did not auction the right to collect usufructs periodically by itself will not constitute or support an assertion of animus to hold the property by the person who planted it, unless the same by its nature is capable of giving notice of factum of possession to all concerned. Equally, the fact that the Government property was lying unattended by itself will not constitute any act of dispossession in the hands of a stranger in derogation of the State Government or the general public and as such the failure to conduct periodical auction to collect usufructs, if any, from the property has no much significance in the matter of adverse possession. What is important is the exercise of open animus to hold the property for the required period in derogation of the interest of its owner and the interested persons. There should be satisfactory evidence to show that the trees such as Teak, Anjali and Mango are not the result of natural vegetation, but planted by the father of the plaintiff. The oral evidence tendered through PW2 that the said trees ( Anjali, Teak and Mango) were planted by the father of the plaintiff years back by itself is not sufficient to bring the same within the purview of adverse possession unless the possession is qualified to the extent of giving notice of factum of exercise of hostile animus to the officials under the State Government, empowered to protect the said property. The possession hence must satisfy something more akin to a declaration of open assertion to hold the property in derogation of the general public or the State Government. Hence, a mere planting of some seedlings or plants may not be sufficient to give notice of assertion of factum of possession as against the Government or the general public. There cannot be an adverse possession in secrecy. The construction of building in the year 1970 though constitute an act of possession to the notice of all concerned, the required period of 30 years was not established from the year of construction.