Date: Feb 25, 2026

Hostile Title Must Be Against the True Owner: Permissive Possession of Debutter Property Does Not Ripen into Adverse Possession

1. Introduction

The Calcutta High Court (Sugato Majumdar, J.) in Gobinda Middya and Ors. v. Sudhir Kumar Dey and Ors. (judgment dated 24.02.2026) decided a second appeal arising from a possessory dispute over a tank measuring about 20 decimals in Plot No. 235. The plaintiffs sued as representatives of a deity, asserting the tank was debutter property dedicated by a registered Arpannama dated 07.04.1931 executed by Gnandra Nath Dey, who had purchased the tank by a prior registered sale deed dated 29.11.1927.

The defence case was that Giribala (mother of the appellants/defendants) had been placed in possession not as a licensee but by gift and/or hostile assertion; they claimed that adverse possession matured by long, open, continuous possession. The Trial Court dismissed the suit accepting adverse possession; the First Appellate Court reversed, holding the possession permissive and adverse possession unproved. The High Court affirmed the First Appellate Court.

Key issues

Whether Giribala’s and thereafter the defendants’ possession was permissive (licence) or adverse.
Whether “hostile title” was asserted against the true owner (the deity) so as to found adverse possession.
Effect of earlier suits filed to recover possession on the plea of continuous adverse possession.
Whether permissive occupation is heritable / whether heirs become trespassers on the permissive occupier’s death (raised as substantial questions).

2. Summary of the Judgment

The High Court dismissed the second appeal and upheld the First Appellate Court’s decree in favour of the plaintiffs (the deity through shebaits). It held that the plea of adverse possession failed because:

Legal steps (suits) had been taken against Giribala and the present defendants to recover possession, undermining a claim of uninterrupted adverse possession.
The defendants’ own evidence indicated hostility was asserted, if at all, against Gnandra Nath Dey and not against the true owner—the deity—therefore the essential element of hostility to the true owner was missing.
Mere assertion of adverse possession is insufficient; permissive possession does not turn adverse without a clear, positive overt act communicating hostile animus against the owner.

The Court directed the appellants to deliver possession within 60 days, failing which execution could be initiated, and allowed the plaintiffs liberty to sue separately for mesne profits.

3. Analysis

3.1 Precedents Cited

State of Rajasthan & Ors. Vs. Shiv Dayal & Anr. [(2019) 8 SCC 637]

This Supreme Court decision was cited by the appellants to support their adverse possession argument. While the High Court did not extract passages, its approach is consistent with the broader Supreme Court line: adverse possession is not established by long possession alone; it requires proof of the classical ingredients— open, continuous, exclusive possession with animus possidendi hostile to the true owner, for the statutory period.

The High Court’s reasoning directly reflects this framework: it rejected “simple assertion” as proof, insisted on hostility vis-à-vis the true owner, and treated earlier recovery proceedings as inconsistent with the pleaded narrative of settled, uninterrupted adverse possession.

Hadibandhu Ho & Ors. Vs. Luchia Ho & Ors. [AIR 1982 Orissa 73]

This Orissa High Court decision (also relied upon by the appellants) is typically invoked for principles that adverse possession must be pleaded and proved with clarity and that the nature of possession—whether permissive, derivative, or hostile—matters decisively.

The Calcutta High Court’s analysis aligns with that thrust: where possession originates or is recorded as permissive, the burden to show the precise point at which it became hostile (and to whom that hostility was directed) is heavy, and cannot be discharged by vague claims of “forcible possession” unsupported by consistent contemporaneous conduct and reliable documentary trail.

3.2 Legal Reasoning

(a) “Hostility” must be against the true owner, not merely against an intermediary

A central factual/legal pivot in the judgment is the High Court’s acceptance of the First Appellate Court’s finding that any hostility was directed against Gnandra Nath Dey, whereas the true owner pleaded and proved by dedication was the deity. The Court treated this as fatal to adverse possession.

This is particularly significant in debutter property cases: once dedication is established, the shebait is a manager (a human agency), but the juridical owner is the deity. For adverse possession, the animus must be hostile to the owner’s title; hostility to a manager or an individual is not a substitute unless it is, in substance and notice, hostility to the owner’s title.

(b) Prior suits and documentary history undercut “uninterrupted adverse possession”

The High Court placed weight on Ext. H(1) (plaint of SCC Suit No. 122 of 1956) and Ext. H (plaint in Title Suit No. 16 of 1958), which showed that legal proceedings were initiated for compensation and/or recovery of possession against Giribala and also the present defendants, and that Giribala was described as a maid servant/permissive occupant in those pleadings.

Even without the defendants producing Giribala’s written statements in those suits (which the Court noted they did not), the existence of those proceedings served two evidentiary functions in the High Court’s reasoning:

They rebut the narrative of acquiescence: the owner/manager was not sleeping over rights.
They complicate the “starting point” for limitation: if possession was permissive or disputed and subject to legal action, the defendant must prove a clear conversion into hostile possession and the running of the full statutory period thereafter.

(c) Permissive possession does not become adverse without a “positive overt act”

The High Court endorsed the First Appellate Court’s statement that unless there is some positive overt act indicating adverse intent, permissive possession does not become adverse. On the facts, the Court found no legally satisfactory overt act of hostility against the deity, and it treated the defendants’ own deposition (hostility against Gnandra Nath Dey) as undermining their plea.

(d) The “permission is heritable / expires on death” questions—how the judgment effectively resolves them

The substantial questions framed included whether permissive occupation is heritable and whether permission expires automatically on the death of the permissive occupier, rendering heirs trespassers. The High Court did not deliver a standalone doctrinal exposition on heritability; instead, it resolved the appeal by characterising the defendants’ status as akin to a “gratuitous licensee” liable to eviction through due process and by rejecting adverse possession.

Practically, this means the Court treated the heirs’ continued occupation as not automatically crystallising into ownership or adverse possession. Whether they are labelled “licensees continuing under the original permission” or “trespassers after death”, the crucial consequence is the same in this judgment: continued possession, without a proved hostile overt act against the true owner for the full limitation period, does not defeat the deity’s title.

3.3 Impact

Debutter property protection: The judgment strengthens the practical enforceability of a deity’s title by emphasising that hostility must be proved against the deity, not merely against a shebait or prior human owner.
Higher evidentiary discipline for adverse possession: Defendants must present consistent, documentary-supported proof of (i) when possession turned hostile, (ii) to whom the hostility was directed, and (iii) continuity for the statutory period. Missing pleadings from earlier suits (here, Giribala’s written statements) may invite adverse inference in assessing the credibility and completeness of the defence narrative.
Litigation strategy in limitation disputes: Prior suits and steps taken to recover possession can be leveraged by plaintiffs to show that possession was not peacefully adverse, and to challenge the alleged continuity or the alleged starting point of hostile possession.
Second appeal posture: Although second appeals ordinarily turn on substantial questions of law, the Court’s affirmance rests on legally material factual conclusions (nature of possession; target of hostility) that were grounded in evidence and were treated as dispositive of the legal issues.

4. Complex Concepts Simplified

Debutter property: Property dedicated to a deity; legally, the deity is treated as a juristic person capable of owning property.
Shebait: The manager/custodian of the deity’s property and worship; acts on behalf of the deity but does not become the owner merely by management.
Arpannama: A deed of dedication/settlement by which property is devoted to a deity and its religious purposes.
Permissive possession / licence: Occupation allowed by the owner/manager; the occupant has no ownership and ordinarily cannot claim adverse possession unless the nature of holding clearly changes to hostility and that change is proved.
Adverse possession: A mode of acquiring title by holding property openly, continuously, exclusively, and hostilely to the true owner for the limitation period; the burden to prove these elements lies heavily on the person asserting it.
Mesne profits: Compensation for wrongful possession (profits/benefits the true owner could have obtained) recoverable for the period of unlawful occupation, typically determined in separate proceedings if not quantified.

5. Conclusion

The Calcutta High Court’s decision crystallises a practical rule in adverse possession disputes involving debutter property: hostility must be proved against the true owner (the deity), and permissive possession cannot ripen into adverse possession without a clear, overt, and legally cognisable change of animus communicated through conduct. Earlier recovery proceedings and inconsistent narratives can decisively weaken an adverse possession plea. The judgment thereby reinforces the evidentiary rigor required to defeat title by limitation and offers meaningful protection to dedicated religious endowments against long-standing but permissive/uncertain occupation.