K.A. Swami, J.
1. This second appeal arises out of a suit for declaration of title and for permanent Injunction and alternatively for possession.
2. The plaintiff claims to be the owner of the suit property measuring 0-10 guntas which forms part and parcel of the land bearing S.No. 483/2A which according to the plaintiff extends upto the bund lying in between the land bearing S.No. 483/2A - belonging to the plaintiff and S.No. 482/2 belonging to the defendant. Alternatively he has also pleaded adverse possession also.
3. As far as title is concerned, in the light of the measurement made by the Surveyor, both the Courts below have held that the disputed land forms part of S.No. 482/2 and as such the defendant is the owner.
4. Regarding adverse possession, both the Courts below have negatived the contention of the plaintiff. One of the reasons given by the lower Appellate Court is that it has been the case of the plaintiff that his land extended upto the bund in question and therefore the bund having been in existence for over a period of 30 years such possession must be held to be adverse possession and title must be held to have been perfected by adverse possession. The lower Appellate Court has rejected the plea of adverse possession, because upto the date of measurement of the land, the plaintiff was under the impression that the land bearing S.No. 483/2A extended upto the bund covering the suit land. Therefore there was no question of adverse possession as there was no necessary animus in the possession of the plaintiff since he himself was not aware of the fact that the suit land did not form part of the land bearing S.No. 483/2A.
5. Learned Counsel for the appellant has strongly contended that mere possession is sufficient to perfect his title by adverse possession and there need not be animus on the part of the plaintiff to perfect his title by adverse possession. In support of this plea, learned Counsel for the appellant has placed reliance on a decision of the Supreme Court in KSHITISH CHANDRA v. COMMISSION OF RANCHI : [1981]2SCR764 of the said Judgment, it has been observed that, 'all that the law requires is that the possession must be open and without any attempt at concealment. It is not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner.' The Supreme Court was considering the reasoning given by the High Court that adverse possession should have been effective and adequate in continuity and in publicity. This reasoning of the High Court was not approved by the Supreme Court and it was in that connection that the aforesaid observation was made. The Supreme Court in that decision, was not called upon to pronounce as to the ingredients of adverse possession. Apart from actual and continuous possession which are among other ingredients of adverse possession there should be necessary animus on the part of the person who Intends to perfect his title by adverse possession. A person who under the bonafide belief thinks that the property belongs to him and as such he has been in possession, such possession cannot at all be adverse possession because it lacks necessary animus for perfecting title by adverse possession. In the instant case, it is only on the measurement made at the instance of the defendant, the plaintiff came to know that his land bearing S.No. 483/2A did not extend upto the bund; whereas the land of the defendant extended beyond the bund towards the land of the plaintiff. The Courts below have negatived the plea of adverse possession. This finding is a finding of fact. The contention of the learned Counsel for the appellant Is that the measurement took place only in about the year 1977 or 1973 but the defendant purchased the land in the year 1961 and as such the period from 1961 to 1977 was sufficient to perfect his title by adverse possession. This contention overlooks the fact that the plaintiff was not aware till the land was measured that the suit land did not belong to him. He was under a bona fide belief that the suit land formed part of his land bearing S.No. 483/2A. Thus the plaintiff was not aware of the fact that the suit land which was in his possession did not belong to him whereas he was under a bona fide belief that the suit land formed part of S.No. 483/2A of which he is the owner. Similarly, the defendant was not aware of this fact until the land was measured. Para 2 of the plaint averments to which the lower Appellate Court has made a specific reference also goes to show that the plaintiff was not aware of this fact until the land was measured.
6. In EJAS ALI v. SPECIAL MANAGER, COURT OF WARDS, BALRAMPUR ESTATE , it is held that the principle of law is firmly established that a person who bases his title to adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. Again inMUNNALAL, MINOR AND ORS. v. MST. KASHIBAI AND ORS. AIR 1947 PC 15 it is held that 'the essential fact is that Janaki Bai and her successors remained in possession of the property for some 40 years prior to the institution of the suit, and that they took possession under a claim of right adverse to the title of the appellant. In their Lordship's opinion, in these circumstances, the claim in the second suit is barred under Article 144 Limitation Act. In the aforesaid case, the facts revealed that possession was obtained by Janaki Bai and her successors in denial of the title of the true owner.
The Supreme Court in P. LAKSHMI REDDY v. L. LAKSHMI REDDY : 1995(5)SCALE509 has held that the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. It has also been further held that the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.
This Court in R.C.R. INSTITUTION v. STATE OF MYSORE AND ANR. : AIR1976Kant75 has held that: 'Thus the possession of the suit property by the plaintiff-church, if any, as evidenced by the graves found in the suit property by the Commissioner, was neither exclusive nor accompanied by the required animus to establish adverse possession.
7. Applying the principles enunciated in the aforesaid decisions, it is not possible to hold that the possession, in the instant case, of the suit land can be termed as 'adverse possession' as it cannot be held that it is in denial of the title of the true owner because the plaintiff himself was not aware of the fact that the suit property did not form part of S.No. 483/2A nor it was known to the defendant who is the owner of S.No. 482/2, that the suit property of which the plaintiff was in possession, formed part of S.No. 482/2. Therefore, there was no requisite animus on the part of the plaintiff to possess the property in denial or the title of the true owner. Hence the lower Appellate Court is justified in law in holding that the plaintiff has failed to prove that he has perfected his title by adverse possession to the suit property. The finding as to adverse possession is a finding of fact (See MANIKAYALA RAO v. NARASIMHASWAMI : [1966]1SCR628 ) Hence no substantial question of law arises for consideration in this appeal. Accordingly, the appeal is not admitted and it is rejected.