High Court · 2025

Mr. Sanj ay Rat uri, Advocat e t he pet it ioners, t hrough video conferencing.

2. Mr. Yogesh Chandra Tiwari, St anding Counsel for t he St at e of Ut t arakhand.

3. Predecessor- in- int erest of t he pet it ioner filed a declarat ory suit under Sect ion 229B of Zam indari Abolit ion and Land Reform s Act , 1950 on t he ground of adverse possession. The said suit w as dism issed by learned t rial Court . Pet it ioner filed First Appeal, which was dism issed by Addit ional Com m issioner, Kum aon, Nainit al. Pet it ioner t hereaft er filed Second Appeal, which t oo has been dism issed by Board of Revenue.

4. All t he t hree Court s have held t hat possession of t he pet it ioner was perm issive. There is not hing on record t o show t hat t he possession of t he pet it ioner w as host ile t o t he t it le of t he t rue ow ner.

5. Hon’ble Suprem e Court in t he case of St at e of Haryana v. Mukesh Kum ar and ot hers, report ed in AI R 2012 SC 559 has held as under: - “3 5 . A person pleading adverse possession has no equit ies in his favour since he is t rying t o defeat t he right s of t he t rue owner. I t is for him t o clearly plead and est ablish all fact s necessary to est ablish adverse possession. Though we got t his law of adverse possession from t he Brit ish, it is im port ant t o not e t hat t hese days t he English court s are t aking a very negat ive view t owards t he law of adverse possession. The English law was am ended and changed subst ant ially t o reflect t hese changes, part icularly in light of t he view t hat propert y is a hum an right adopt ed by t he European Com m ission. This Court in Revam m a ( AI R 2007 SC 1753) ( supra) observed t rue nat ure of adverse possession, Fairweat her v. St . Marylebone Propert y Co. [ 1962] 2 WLR 1020: can be considered where t he House of Lords referring t o underst and t hat t he t o Taylor v. Twinberrow [ ( 1930) 2 KB 16, t erm ed adverse possession as a negat ive and consequent ial right effect ed only because som ebody else's posit ive right t o access t he court is barred by operat ion of law. As against t he right s of t he paper- owner, in t he cont ext of adverse possession, t here evolves a set of com pet ing right s in favour of t he adverse possessor who has, for a long period of t im e, cared for t he land, developed it , as against t he owner of t he propert y who has ignored t he propert y. 3 6 . The right t o property is now considered t o be not only a const it ut ional or st at ut ory right but also a hum an right . Hum an right s have already been considered in t he realm of individual right s such as t he right t o healt h, right t o livelihood, right t o shelt er and em ploym ent , et c. But now hum an right s are gaining a m ult ifacet ed dim ension. Right t o propert y is also considered very m uch a part of t he new dim ension. Therefore, even t he claim of adverse possession has to be read in t hat cont ext . t he cont ext of adverse possession. But what 3 7 . The changing at t it ude of t he English court s is quit e visible from t he j udgm ent of Beaulane Propert ies Lt d. v. Palm er ( 2005) 3 WLR 554 . The Court here t ried t o read t he hum an right s posit ion com m endable t he dim ensions of hum an rights have widened so m uch t hat now propert y disput e issues are also being raised wit hin t he cont ours of hum an right s. Wit h t he expanding j urisprudence of t he European Court s of Hum an Right s, t he Court has t aken an unkind view t o the concept of adverse possession” t hat

6. Hon’ble Suprem e Court t he case of Parsinni ( dead) by LRs. V. Sukhi, ( 1993) 4 SCC 375, in para 5 of t he j udgm ent has observed as follows: - “ … The burden undoubt edly lies on t hem t o plead and prove t hat t hey rem ained in possession in t heir own right adverse t o t he respondent s. … The part y claim ing adverse possession m ust prove t hat his possession m ust be ‘nec vi, nec clam , nec precario’ i.e., peaceful, open and cont inuous. The possession m ust be adequat e in cont inuit y, t heir possession is adverse to t he t rue owner.” in publicit y and in ext ent t o show t hat

7. Thus, t here is no scope for int erference. The writ pet it ion fails and is dism issed. Navin ( M a n o j K u m a r Ti w a r i , .J.)

21.03.2025