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Case Number

Appeal No. 266 of 1933

Judges

Nasim Ali
Henderson, JJ.

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Summary of the Opinion

Factual and Procedural Background

This appeal arises from a suit for possession of a vacant plot of land (marked A in the Commissioner's map) following the plaintiffs' declaration of zamindary right thereto. The plaintiffs claimed the disputed land formed part of the all lands of the village Kamal Kachhna, that they were the proprietors and had been in possession until they were dispossessed by an order of the criminal court under Section 145 of the Criminal Procedure Code.

Defendants 1 and 2 contended that the land was rent-free, that it was never in the possession of the plaintiffs or their predecessors, and that they had acquired title by adverse possession for more than twelve years.

The trial Judge found the disputed land to be mal land of Kamal Kachhna but held that the defendants had a title of legal origin, the exact nature of which was lost in antiquity; the trial Court did not decide the question of adverse possession and dismissed the suit. On appeal the learned Additional District Judge confirmed the trial Court's decree on the ground that the plaintiffs' zamindary title had been extinguished by the defendants' adverse possession for more than twelve years. The plaintiffs brought this second appeal.

Legal Issues Presented

Whether the facts established adverse possession by the defendants for the statutory period (i.e., whether the defendants' possession was adverse in law and met the statutory requirements).
Whether the defendants adduced sufficient evidence to support a finding that they had a title of legal origin (a "lost grant").
Whether the Additional District Judge erred in relying on constructive or "ideal" possession (intention without actual possession) as sufficient to prove continuity of adverse possession.

Arguments of the Parties

Appellants' Arguments (as represented by Mr. Gupta)

The learned Additional District Judge's findings on continuity and extent of possession were based largely on a presumption of constructive possession in favour of the defendants for periods during which they were not in actual possession.
The passage relied upon by the learned Judge—"Once possession is acquired it is possessed without actual possession. Possession is the intention to hold together with power to hold..."—shows a legal error in treating mere intention or constructive possession as sufficient for continuity of adverse possession.

Defendants' Pleaded Defence (as described in the opinion)

The disputed land was rent-free and was never in the possession of the plaintiffs or their predecessors.
The defendants claimed title by adverse possession for more than twelve years.
The trial Court found evidence that the defendants had a title of legal origin (a lost grant), although the precise nature of that title was said to be lost in antiquity.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
19 IA 481	That whether possession is adverse may be a conclusion of law or a mixed question.	Recited to justify treating the question of adverse possession as capable of legal conclusion based on facts found.
27 IA 1362	Requirement that adverse possession must be adequate in publicity, continuity and extent.	Adopted as a foundational principle to test whether the defendants' acts amounted to adverse possession for the statutory period.
61 IA 783	Possession must be overt and without any attempt at concealment so that the true owner, exercising due vigilance, would be aware.	Invoked to emphasize that overt acts (publicity) are sufficient to run time against the true owner.
61 IA 78	Continuous possession need not show acts at every moment; intermittent acts may suffice depending on the nature of the subject.	Used to explain that the nature of possession required varies with the subject and that gaps in physical acts do not ipso facto defeat continuity.
85 IC 5944	A series of isolated acts of trespass without continuity is insufficient; possession must be actual, not merely ideal.	Cited to show that isolated acts do not establish the requisite continuity and that ideal or constructive possession cannot substitute for actual possession.
(1881) 13 AC 7935	Where a person enters and holds temporarily and then abandons possession, the rightful owner regains his original position; statute of limitation protects cases where one has been out and another in possession for prescribed time.	Quoted to underline that mere temporary intrusion which is abandoned does not create a protected possession; there must be absence of the owner and actual possession by another for the statutory period.
Lightwood on Possession of Land, para 61	When possession is abandoned the civil possession vests again in the owner; physical discontinuance is decisive and intention need not be specially referred to.	Cited to support the proposition that discontinuance of physical occupation restores possession to the owner.
86 IC 694	Intention is relevant (though not decisive) to determine whether possession has been discontinued because adverse character is partly based on intention to exclude the real owner.	Referred to show that intention plays a role in assessing continuity, but cannot override the requirement of actual possession.
29 IA 1046	The doctrine of constructive possession cannot be invoked in favour of a wrongdoer to obtain title by limitation.	Applied to criticize reliance on constructive or ideal possession to found title by adverse possession in the defendants' favour.
58 IA 297	Title by adverse possession is strictly limited to what has been actually possessed by the trespasser (tantum prescriptio quantum possessum).	Used to stress that a trespasser can acquire title only over what he has actually possessed and that extent must be determined from the facts.
24 Cal 2568	Possession over part of immovable property may be evidence of de facto possession of the whole in some cases, but a wrongdoer's possession is ordinarily confined to the part actually possessed unless there is clear connection/interdependence.	Invoked in relation to the pathsala erected on a small portion of the land to question whether possession of that portion could justify possession of the whole disputed area.

Court's Reasoning and Analysis

The court proceeded in a sequence of factual recitation, statement of legal principles, and application to the findings of fact.

First, the court set out the material facts found by the courts below (as recorded in the opinion). These included that the plot was a vacant plot never under cultivation but capable of possession; that plaintiffs did not exercise acts of possession until 1327 when they forcibly dispossessed the defendants; that the defendants undertook a variety of acts over the years (stacking bricks in 1313 B.S., fencing in 1315, erection and removal of huts, permission for a pathshala ghur in 1316, opposing selection of the land for a boarding house in 1316, clearing jungle in 1319 pursuant to municipal notice, realising rent from a circus in 1321 and again in 1326, erection and removal of temporary hostel in 1324–25, partition allotting the land to defendants with boundary pillars in 1325, defendants paying municipal taxes since 1323 B.S., and an attempted circus performance in Sravan 1327 frustrated by an injunction).

Second, the court summarized established legal principles governing adverse possession: possession must be adequate in publicity, continuity and extent; overt acts that put the true owner on notice suffice; continuity can be inferred from intermittent acts depending on the nature of the subject; isolated trespasses without continuity are insufficient; abandonment of possession restores possession to the rightful owner; intention is relevant to determine whether possession was discontinued but cannot substitute for the physical element; constructive possession cannot be invoked to enable a wrongdoer to acquire title; and title by adverse possession is limited to what has actually been possessed.

Third, the court analysed the Additional District Judge's treatment of the facts. The court identified a key passage in that judge's judgment suggesting that once possession is acquired it may be treated as continuing without actual possession—i.e., a reliance on intention or constructive possession. The court concluded that this approach was contrary to the cited authorities which require actual, overt possession (and which do not allow a wrongdoer to rely on mere constructive possession to found title by limitation).

The court further observed factual ambiguities in the lower appellate judge's findings: it was unclear whether the defendants exercised acts of possession over the whole disputed land for certain periods (1317–1320 and 1322–1323), and it was not found whether the small portion occupied by a pathshala had a close connection to the remainder so as to justify inferring possession of the whole from possession of that part. The trial Court had found a lost grant (a title of legal origin) but the Additional District Judge had not clearly affirmed or made a coherent finding on that point.

Given (a) the legal principles against treating mere intention or constructive possession as sufficient to found adverse possession, (b) the factual uncertainties about continuity and extent of actual possession, and (c) the lack of a clear appellate finding on the alleged lost grant, the court concluded that the Additional District Judge had not addressed the questions from the proper standpoint and that the matter required re-hearing.

Justice Henderson, while concurring in the result, emphasized that there was ample evidence on the record to justify the trial Court's finding of a lost grant and that if the appellate Judge had clearly affirmed that finding the court would not have interfered. Henderson J. agreed that, because of the uncertain and at times halting language of the Additional District Judge, the most satisfactory course was to remit the appeal for re-hearing on both points (adverse possession and lost grant).

Holding and Implications

APPEAL ALLOWED; CASE REMANDED.

Direct effect on the parties:

The judgment and decree of the lower appellate Court are set aside.
The case is sent back to the lower appellate Court for re-hearing of the appeal according to law on both issues (whether the defendants acquired title by adverse possession and whether the defendants proved a title of legal origin/lost grant).
Costs will abide the result (i.e., costs to follow the event of the re-heard appeal).

Broader implications:

The opinion reiterates established principles limiting the role of constructive or ideal possession in acquiring title by limitation and emphasises that a wrongdoer cannot rely on constructive possession to obtain such title. The decision remands for factual reconsideration rather than laying down a new legal principle; the court directed that the factual and legal issues be re-examined in light of the authorities cited and the requirement that adverse possession be proved by actual, overt possession adequate in publicity, continuity and extent.

Prepared from the opinion of Nasim Ali, J. (with the concurring observations of Henderson, J.). This summary contains only information explicitly stated in the provided opinion.

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Bhabani Prosanna Lahiri v. Manindra Chandra Roy Choudhury

Nasim Ali, J.:— This appeal arises out of a suit for possession of a plot of land marked A in the Commissioner's map on declaration of plaintiffs' zamindary right thereto. Plaintiffs' case is that the disputed land is a part of the all lands of the village Kamal Kachhna of which they are the proprietors, that they were all along in possession of the same till they were dispossessed therefrom by an order of the criminal Court, under Section 145 of the Cr PC. The defence of defendants 1 and 2 is that the disputed land is rent free and that it was never in the possession of the plaintiffs or their predecessors. They also claim title by adverse possession for more than 12 years. The trial Judge held that though the disputed land was mal land of Kamal Kachhna, the defendants had a title of legal origin the exact nature of which was lost in antiquity. In this view the learned Judge did not consider it necessary to come to any finding on the question of adverse possession set up by the defendants. He accordingly dismissed the suit. On appeal by the plaintiffs to the lower appellate Court the learned additional District Judge had confirmed the decree of the trial Court on the ground that the plaintiffs' title to the disputed land as zamindars had been extinguished by adverse possession of the defendants for more than 12 years. Hence this second appeal by the plaintiffs:

The question whether possession is adverse or not is often one of simple fact, but it may be a conclusion of law or a mixed question.

2. It is a question of legal conclusion to be drawn from the findings on simple facts: 19 IA 481.

3. The facts found are: (1) The disputed land is a vacant plot of land which was never under cultivation but was capable of possession; (2) the plaintiffs never exercised any acts of possession down to 1327 when possession was taken by them forcibly dispossessing the defendants; (3) no actual acts of possession were exercised on the land before 1313 B.S (4) the defendants stacked bricks on the disputed land in 1313 B. 8, with a view to construct a building thereon; (5) the defendants fenced round the disputed land in 1315 B.S and the fence was in existence for a year or so; (6) two corrugated huts were erected by the defendants on the disputed land in 1315 B.S but they were removed in Chaitra 1316 B.S; (7) a pathshala ghur was erected on the south-west corner of the disputed land in 1316 B.S with the permission of defendant 2; (8) the defendants successfully opposed in Agrahayan 1316 B.S the selection of the disputed land as a site for a proposed boarding house for Batra Khettrya students of Government H.E School at Eangpur; (9) the defendants cleared jungles on the disputed land in 1319 B.S in pursuance of a notice issued by the Municipality; (10) defendants realised rent from a circus party for 15 days in Bhadra 1321; (11) temporary college hostel was erected on the disputed land with the permission of defendant 1 in 1324 and was removed in 1325; (12) by an amicable partition the disputed land was allotted to the share of the defendants and masonry boundary pillars were erected along the northern and eastern limits of the disputed land in 1325; (23) defendant realised rent from a circus party for occupation of the disputed land in Chaitra and Baisakh 1326 B.S; (14) Mukunda's jatra was held on the disputed land in Falgoon or Chaitra 1326 with the permission of defendant 1; (15) A circus company attempted in Sravan 1327 B.S to hold performance on the disputed land by taking settlement from defendants at the rent of Rs. 5 per day, but the performance could not be held on account of an injunction from the Collector and (16) the defendants are paying Municipal taxes since 1323 B. 8.

4. The question is whether these facts establish adverse possession of the defendants for the statutory period. The following principles are well established;

(a) In order to establish adverse possession it must be shown that possession was adequate in publicity, in continuity and in extent: 27 IA 1362.

(b) It is sufficient that the possession should be overt and without any attempt at concealment so that the person against whom time is running ought if he exercises due vigilance to be aware what is happening: 61 IA 783.

(c) It is not necessary in order to establish adverse possession that proof of acts of possession should cover every moment of the requisite period… The facts of possession may be continuous though actual acts of possession are at considerable intervals. How many acts will infer the fact is a question of proof and presumption independent of prescription. The nature of the requisite possession must necessarily vary with the nature of the subject possessed. The possession must be the kind of possession of which the particular subject is susceptible: 61 IA 78.

A series of isolated acts of trespass with no continuity of possession would fall short of the requisite and if in fact there has been interruption, possession during such interruption must be deemed to be with the person having the lawful right. It must also be actual as opposed to ideal possession: 85 IC 5944.

If a person enters upon the land of another and holds possession for a time, and then without having acquired title under the statute abandons possession the rightful owner on the abandonment is in the same position in all respects as he was before the intrusion took: place. There is no one against whom he can-bring an action. He cannot make an entry upon himself. There is no positive enactment nor is there any principle of law which requires-him to do any act, to issue any notice, or to perform any ceremony in order to rehabilitate himself. No new departure is necessary. The possession with intruder ineffectual for the purpose of transferring title ceases upon its abandonment to be effectual for any purpose. It does not leave behind any cloud on the title of the rightful owner or any secret process at word for the benefit in time to come of some casual interloper or lucky vagrant.’… The statute applies not to want of actual possession by the plaintiff but to cases where he has been out of and another in possession for the prescribed time. There must be both absence of possession by the person who has the right and actual possession by another whether adverse or not to be protected to bring the case within the—statute: (1881) 13 AC 7935.

5. When possession has been abandoned-the civil possession is not only out of the trespasser but is vested again in the owner. This result seems to depend on the failure of the physical element in possession and it is not necessary to refer specially to the intention. The possessor has in fact discontinued his occupation whether he intends to return or not. Lightwood on Possession of Land, para 61.

But in determining whether there had been discontinuance of possession intention cannot bealtogether be left out of account. For after all the adverse character of possession must be based to a certain extent on the intention to-exclude the real owner: 86 IC 694 cited above.

The doctrine of constructive possession cannot be invoked in favour of a wrongdoer so as to enable him to obtain thereby a title by limitation: 29 IA 1046.

(d) Title by adverse possession ac-strictly limited to what has been actually possessed by the trespasser. The maxim tantum prescription quantum possessum is rigorously applied to him. The application of this general rule however depends on the facts of each-particular case. Possession is a question of fact, and extent of possession may be an inference of fact: 58 IA 297.

Act of possession over a part of any immovable property may no doubt in many cases be evidence on de facto possession of the whole. But possession by a wrongdoer over a part (except where there is a clear connexion and interdependence between the part actually possessed and the whole of which it is a part) must be confined to the part of which he is actually in possession: 24 Cal 2568.

6. The contention of Mr. Gupta on behalf of the appellants is that the findings of the learned Additional District Judge about the continuity and extent of defendants' possession for the statutory period is based mainly upon the presumption of constructive possession in favour of the defendants during the years in which they were not in actual possession. This contention is supported by the following passage in the judgment of the learned Judge:

Once possession is acquired it is possessed without actual possession. Possession is the intention to hold together with power to hold; in other words the physical possibility of possessing the property according to will.

7. These observations of the learned Judge indicate that he was of opinion that only the intention to possession without actual possession would be sufficient in law to prove continuous possession of a trespasser though in fact he was not in possession for some years within the statutory period. This view is clearly opposed to the principles which have been indicated above. Again the findings of the learned Judge show that a pathsala was in existence on a small portion of the disputed land. It is not clear from the judgment of the learned Judge whether the defendants exercised any acts of possession over the remaining portion of the disputed land from 1317 to 1320 and 1322 to 1323. It has not been found whether there is any close connexion and inter-dependence between the portion on which the pathsala stands and the whole of the disputed land of which it is part. The finding of the learned Judge, that the defendants were in continuous possession of the whole of the disputed lands from 1314 to 1327, appears to me to have been influenced to a large extent by his view that a trespasser can rely, for acquiring title by adverse possession on ideal or constructive possession in the land trespassed upon, though he has not in fact possessed it for some years during the statutory period. If in fact the defendants discontinued their possession it is immaterial whether they intended to return or not. The question of intention is relevant only for the purpose of determining whether in fact the possession was discontinued. I am not satisfied in the present case that the learned Judge approached the question of adverse possession from the proper point of view. Again the trial Court found that the defendants had a title of legal origin, the exact nature of which was lost in antiquity. The learned Judge has not come to any clear finding on this point. I am therefore of opinion that the case should be reheard by the lower appellate Court. The result therefore is that this appeal is allowed. The judgment and decree of the lower appellate Court are set aside and the case is sent back to that Court for re-bearing of the appeal according to law. Costs will abide the result.

Henderson, J.:— I have nothing to add with regard to adverse possession, but desire to say something on the other point at issue in this appeal whether the defendants adduced evidence which would entitle a Court of fact to infer that their possession must have had a lawful origin and to pronounce in favour of a lost grant. As must almost be inevitable, in view of the pleadings, the evidence was chiefly directed to show assertions of title and acts of possession. It is clear that evidence which might be quite valueless for the purpose of establishing adverse possession, may throw considerable light on the other question at issue. The learned Subordinate Judge delivered a most careful judgment and came to the conclusion that the defendants had established a lost grant. In dealing with adverse possession the learned Additional District Judge—in my opinion quite rightly did not rely upon anything previous to the year 1313.

8. But it is obvious that in dealing with the other point great importance attaches to the evidence that the defendants were in possession of the disputed land for many years through Mohesh, who in his turn sublet it to the Tushbandar Estate, and to the evidence with regard to the difficulties which the defendants experienced in inducing the Court of Wards to surrender the plot when they themselves required it for the construction of their own residence.

9. In my opinion it cannot be questioned that there was ample evidence on the record to justify the finding of the trial Court with regard to a lost grant. If the Judge sitting in appeal had on a consideration of that evidence, affirmed that judgment I should not have been prepared to interfere with his conclusion in second appeal. The real question for our determination on that part of the case is whether he did so affirm the original judgment. I must confess that on first reading the judgment I reached the conclusion that there was no finding on this point at all. But on re-perusing it, it appears to me that the learned Judge did intend to affirm that finding. The legal advisers of the appellants also apparently took this view (vide ground No. 1 in the petition of appeal). But in view of the halting and at times unfortunate language used by the learned Judge it is impossible to feel any certainty on this point. As my learned brother is strongly of opinion that there is no real finding on the point, I consider that the most satisfactory course is to direct a re-hearing of the appeal on both points. I therefore concur in the order which he proposes to make.

S.R

10. Appeal allowed; Case remanded.

Bhabani Prosanna Lahiri v. Manindra Chandra Roy Choudhury

Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' Arguments (as represented by Mr. Gupta)

Defendants' Pleaded Defence (as described in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Bhabani Prosanna Lahiri v. Manindra Chandra Roy Choudhury

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