MAKINA ATCHAYYA PATRUDU Vs. JALALUDDIN SAHIB

JUDGEMENT

(1.) This is a Letters Patent Appeal from the judgment of Mr. Justice King, in a second appeal reversing the decision of the lower Appellate Court. The learned Judge has found that the mosque, the defendant in the suit, has established its title by adverse possession. The question to decide is whether that view is right.

(2.) The suit relates to a vacant site adjacent to the house of the plaintiff, who bases his title to it, upon a sale deed of 1899 executed by one Ambu Sarang Saheb. There was some difficulty in obtaining possession and a suit was filed and a decree was obtained against the vendor in 1900. Whether the decree has been executed or not is a matter in debate, but in our opinion nothing turns upon it. The claim has been resisted by certain persons on behalf of the mosque and the points to decide are, whether the plaintiff has been in possession within 12 years of the action and whether the mosque obtained title by adverse possession.

(3.) On both these points it seems to us that the plaintiff is bound to succeed. First turning to the question of adverse possession, the acts relied upon are these: that an Arabic school was being conducted in a shed constructed on the site, that lectures were being delivered there and that meetings were being held. There can be no doubt on the evidence, that such sheds as there were, were temporary ones built of thatch. Granting that these acts have been fully proved, do they constitute evidence of adverse possession? The possession of the wrongdoer to avail him must be adverse in its character, importing a denial of the owner's title in the property claimed. It is settled law, that possession cannot be adverse unless it is held in such circumstances as are capable in their nature of notifying mankind that the party is on the land, claiming it as his own, openly and exclusively (see Rustomji on Limitation, 1922 Ed., page 604). There ought to be nothing equivocal in a possession which is relied upon as a bar (ibid., page 600). Possession cannot be adverse unless the owner is in denial of his title excluded from enjoyment. In other words, the test is, are the acts of the person in possession such, as to be irreconcilable with the rights of the true owner? Possession to be adverse must be notorious, exclusive and hostile and we agree with the Subordinate Judge that the acts relied on here are not sufficient to constitute adverse possession.