Karnataka High Court
Moinuddin S/O Abdul Raheman Sab vs Chandrappa S/O Bheemsha Pujari Anr on 29 August, 2023
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NC: 2023:KHC-K:6834
RSA No. 7382 of 2011
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MRS JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.7382 OF 2011 (INJ)
BETWEEN:
MOINUDDIN
S/O ABDUL RAHMAN SAB
AGED ABOUT: 61 YEARS
OCC: AGRICULTURE
R/O NEEM HOSSALLI VILLAGE
TQ: CHINCHOLI - 585 306
DIST: GULBARGA - 585 101.
...APPELLANT
(BY SRI SANKET APPAJI
SRI HARSHAVARDHAN R MALIPATIL, ADVOCATES)
AND:
1. CHANDRAPPA @ CHANDAPPA
S/O BHEEMSHA PUJARI
AGED ABOUT:58 YEARS
OCC: AGRICULTURE & COOLIE
R/O NEEM HOSSALLI VILLAGE
Digitally signed TQ: CHINCHOLI - 585 306
by DIST: GULBARGA
LUCYGRACE
Location: HIGH 2. KAIRUNNISA BEGUM @ QAIRUNNISSA BEGUM
COURT OF
KARNATAKA W/O KHAJA MOINUDDIN BAGLI
AGED ABOUT:59 YEARS
OCC: HOUSEHOLD,R/O NEEM HOSSALLI
TQ: CHINCHOLI - 585 306
DIST: GULBARGA- 585101.
...RESPONDENTS
(BY SRI. ABDUL MUQHTADIR, ADVOCATE FOR R-1 AND 2)
THIS RSA IS FILED U/S 100 CPC, PRAYING TO ALLOW THE
APPEAL AND SET ASIDE THE JUDGMENT AND DECREE DATED
30.07.2011 PASSED IN R.A.NO.64/2009 BY THE LEARNED CIVIL JUDGE
(SR.DN) CHINCHOLI, RESTORE THE JUDGMENT AND DECREE DATED
27.10.2009 OF CIVIL JUDGE (JR.DN) AT CHINCHOLI IN O.S.NO.76 OF
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NC: 2023:KHC-K:6834
RSA No. 7382 of 2011
2001 AND TO GRANT ANY OTHER APPROPRIATE RELIEF, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR DICTATING JUDGMENT, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present regular second appeal by the plaintiff is directed against the judgment and decree dated 30.07.2011 in R.A.No.64/2009 on the file of the Senior Civil Judge, Chincholi, reversing the judgment and decree dated 27.10.2009 in O.S.No.76/2001 on the file of the Addl. Civil Judge (Jr.Dn.) at Chincholi, whereby the suit of the plaintiff seeking declaration and possession was dismissed by the first appellate Court and the judgment and decree of the trial Court was set aside.
2. The parties herein are referred to as per their ranking before the trial Court for the sake of convenience.
3. This Court, on 13.10.2020, while admitting the appeal has framed the following substantial questions of law:
-3-NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 (1) Whether the first appellate court is justified in holding that the defendant No.1 has perfected his title by adverse possession in view of his possession under Ex.D.16 /Agreement of sale?
(2) Whether the first appellate court is justified in holding that, the suit of plaintiff is barred by law of limitation for entire suit property?
(3) Whether the first appellate court is justified in holding that defendant No.2 derived valid title under sale deed Ex.P.13?
4. Sri. Sanket Appaji, learned counsel for Sri. Harshavardhan R. Malipatil, learned counsel for the appellant-plaintiff and Sri. Abdul Muqhtadir, learned counsel for the respondents-defendants have been heard on the substantial questions of law framed by this Court.
5. The undisputed facts are that,
(i) The land in Sy.No.178 measuring 8 guntas including the house was in the ownership of one Abdul Rehamansab son of Alisab Jantiwale father of the plaintiff.
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(ii) On the death of the father of plaintiff, the plaintiff was the owner of the land bearing Sy.No.178 measuring 8 guntas.
(iii) The defendants are not related to the plaintiff.
(iv) The plaintiff applied for permission to construct a room in the suit land in the year 1981 and obtained permission from the panchayat and constructed a house in the suit land.
(v) Defendant No.1 is in permissive possession of the suit property as per his own contention in his written statement that, defendant No.1, his wife and his mother by name Shivamma have orally purchased open space from the father of the plaintiff and started to reside in the suit land by erecting a hut and later constructed a pucca house and they are residing there since 1979 and the plaintiff has not raised any objection.
(vi) Defendant No.1 states that he is the owner of the suit schedule property having purchased by him and his mother from Abdul Rahman.
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(vii) Defendant No.1 sold the open space to defendant No.2 measuring 54 ft. east to west and 52 ft.
north to south, which is part and parcel of house No.3/10 belonging to defendant No.1 as stated in his written statement
(viii) Defendant No.1 also contends that he claims possession by way of Ex.D-16 - agreement of sale by the plaintiff in favour of defendant No.1 and he has perfected his title by adverse possession.
(ix) Defendant No.2 contends that the suit property, open space has been sold by defendant No.1 under registered sale deed dated 12.04.1999 and he is a bona fide purchaser.
6. The trial Court, while answering issue Nos.1 to 3 and additional issue No.1, has held that the plaintiff has established his ownership over the suit schedule property and also that defendant No.1 is in permissive possession of the suit house situated in Sy.No.178 and that defendant No.1 failed to prove the ingredients of adverse possession -6- NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 and is not entitled for declaration of ownership over the suit property by way of adverse possession, accordingly, decreed the suit of the plaintiff and further declared that the sale deed executed by defendant No.1 in favour of defendant No.2 is not binding on the plaintiff and directed to vacate and handover possession of the suit schedule property within three months from the date of the order.
7. Aggrieved by which, the defendants have preferred an appeal before the first appellate Court. The first appellate Court reversed the judgment and decree of the trial Court and held that defendant No.1 has proved his possession based on Ex.D.16 and Ex.D.17 and the possession of defendant No.1 under the said document is an adverse possession and also arrived at a conclusion that defendant No.1 is the actual purchaser of the suit schedule property on basis of sale and consequently, dismissed the suit of the plaintiff. Aggrieved by which, the present second appeal by the plaintiff.
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8. In order to answer the substantial questions of law framed by this Court, the principles governing the adverse possession needs to be looked into. The concept of adverse possession in India is more than a century old concept of law which is primarily based on three fundamental principles:
(i) That the person is in possession of the property continuously with the knowledge of the true owner and hostile to the knowledge of the plaintiff.
(ii) To succeed in a plea of adverse possession, mere proof of long lasting unauthorized possession is not sufficient, the requirement or rather the first and foremost requirement is the assertion and proof of hostile title by the possessor in denial of the title of the true owner.
(iii) The hostility of title would mean claim to the property as owner by clearly denying title of the true owner. Thereafter, the uninterrupted, open and hostile possession has to be followed for a period of twelve years as prescribed under Article 65 of the Limitation Act.-8-
NC: 2023:KHC-K:6834 RSA No. 7382 of 2011
9. The requisite ingredient of animus possidendi (intention to possess) adversely should be present when claiming ownership and taking the plea of adverse possession.
10. The judgment of the Apex Court in the case of Karnataka Board of Wakf vs. Government of India & others1 has dealt with the aspect of nature and acts amounting to adverse possession. The Apex Court at paragraph Nos.11 to 13 has held as under:
"11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in 1 (2004)10 SCC 779 -9- NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina, Parsinni v. Sukhi and D.N. Venkatarayappa v. State of Karnataka.) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma']
12. A plaintiff filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. (See S.M. Karim v. Bibi Sakina)
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 In P. Periasami v. P Periathambi this Court ruled that:
"Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property."
The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar that is similar to the case in hand, this Court held:
"4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e. up to completing the period his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 plea of adverse possession is not available to the appellant."
13. As we have already found, the respondent obtained title under the provisions of the Ancient Monuments Act. The element of the respondent's possession of the suit property to the exclusion of the appellant with the animus to possess it is not specifically pleaded and proved. So are the aspects of earlier title of the appellant or the point of time of disposition. Consequently, the alternative plea of adverse possession by the respondent is unsustainable. The High Court ought not to have found the case in their favour on this ground."
11. The Apex Court in the recent decision in the case of Govt. of Kerala & Anr. vs. Joseph & Ors.2 stated supra has held at para No.30 to 55, as under:
"30. Before proceeding to do so, it is essential to take note of the law governing such a claim. After a perusal and consideration of various judgments rendered by this Court, the following principles can be observed:
31. Possession must be open, clear, continuous and hostile to the claim or possession of the other party; all three classic requirements must coexist- nec vi, i.e., adequate in continuity; nec clam, i.e., adequate in 2 2023 SCC Online SC 961
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 publicity; and nec precario, i.e., adverse to a competitor, in denial of title and knowledge;
(a) In Radhamoni Debi v. Collector of Khulna, the Privy Council 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."
(b) Further, the Council Maharaja Sri Chandra Nandi v. Baijnath Jugal Kishore observed-
"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 of what is happening."
(c) A Bench of three judges of this Court in Parsinni v. Sukhi held that "Party claiming adverse possession must prove that his possession must be 'nec vi, nec clam, nec precario' i.e. peaceful, open and continuous. The possession must be adequate, in continuity, in publicity and in extent to show that their possession is adverse to the true owner."
(d) In Karnataka Board of Wakf v. Govt. of India (two-Judge Bench) it was held:--
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 "It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period."
This case was relied on in the case of M. Venkatesh v. Bangalore Development Authority (three-Judge Bench), Ravinder Kaur Grewal v. Manjit Kaur (three-Judge Bench).
(e) This Court in a recent case of M Siddiq (D) through LRs v. Mahant Suresh Das (five-Judge Bench) reiterated this principle as under -
"748. A person who sets up a plea of adverse possession must establish both possession which is peaceful, open and continuous - possession which meets the requirement of being 'nec vi nec claim and nec precario'. To substantiate a plea of adverse possession, the character of the possession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. These requirements have to be
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 duly established first by adequate pleadings and second by leading sufficient evidence."
32. The person claiming adverse possession must show clear and cogent evidence substantiate such claim;
33. This Court in Thakur Kishan Singh v. Arvind Kumar (two-Judge Bench) held that -
"5. A possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession..."
34. Reference may also be made to M. Siddiq (supra).
35. Mere possession over a property for a long period of time does not grant the right of adverse possession on its own;
(a) In Gaya Prasad Dikshit v. Dr. Nirmal Chander (two-Judge Bench),this court observed-
"1... It is not merely unauthorised possession on termination of his licence that enables the licensee to claim title by adverse possession but there must be some overt act on the part of the licensee to show that he is claiming adverse title. It is possible that the licensor may not file an action for the purpose
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 of recovering possession of the premises from the licensee after terminating his licence but that by itself cannot enable the licensee to claim title by adverse possession. There must be some overt act on the part of the licensee indicating assertion of hostile title. Mere continuance of unauthorised possession even for a period of more than 12 years is not enough."
36. Reference may also be made to Arvind Kumar (supra); Mallikarjunaiah v. Nanjaiah (two-Judge Bench); Uttam Chand (supra).
37. Such clear and continuous possession must be accompanied by animus possidendi - the intention to possess or in other words, the intention to dispossess the rightful owner; in Karnataka Board of Wakf (supra) it was observed-
"...Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature..."
(a) The case of Annakili v. A. Vedanayagam (two- Judge Bench) also shed light on this principle as under -
"24. Claim by adverse possession has two elements : (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter.
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well-settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession..."
(b) In Des Raj v. Bhagat Ram (two-Judge Bench) this Court observed -
"21. In a case of this nature, where long and continuous possession of the plaintiff- respondent stands admitted, the only question which arose for consideration by the courts below was as to whether the plaintiff had been in possession of the properties in hostile declaration of his title vis-à-vis his co-owners and they were in know thereof."
(c) This court in L.N. Aswathama v. P. Prakash (two- Judge Bench) had observed that permissive possession or possession in the absence of Animus possidendi would not constitute the claim of adverse possession.
(d) It was also held in the case of Chatti Konati Rao v. Palle Venkata Subba Rao (two-Judge Bench) -
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 "15. Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed..."
(Emphasis supplied)
38. Referring to the above judgment Subha Rao (supra) this Court has reiterated the cardinality of the presence of Animus possidendi in a case concerning adverse possession in Brijesh Kumar v. Shardabai (dead) by LRs. (two-Judge Bench).
39. Such a plea is available not only as a defence when title is questioned, but is also available as a claim to a person who has perfected his title;
40. The prior position of law as set out in Gurudwara Sahab v. Gram Panchayat Village Sirthala (two-Judge Bench) was that the plea of adverse possession can be used only as a shield by the defendant and not as a sword by the plaintiff. However, the position was changed later by the decision of this Hon'ble Court in
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 the case of Ravinder Kaur (supra) had held that -
"...Title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession..."
41. The position in Ravinder Kaur (supra) was followed in Narasamma v. A. Krishnappa (Dead) Through LRs. (three-Judge Bench).
42. Mere passing of an ejectment order does not cause brake in possession neither causes his dispossession;
43. In Balkrishna v. Satyaprakash (two-Judge Bench) this Court held:
"...Mere passing of an order of ejectment against a person claiming to be in adverse possession neither causes his dispossession nor discontinuation of his possession which alone breaks the continuity of possession."
44. When the land subject of proceedings wherein adverse possession has been claimed, belongs to the Government, the Court is duty-bound to act with greater seriousness, effectiveness, care and circumspection as it may lead to Destruction of a right/title of the State to immovable property. In State
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 of Rajasthan v. Harphool Singh (two-Judge Bench) it was held:
"12. So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immovable property and conferring upon a third-party encroacher title where he had none."
45. Further, in Mandal Revenue Officer v. Goundla Venkaiah (two-Judge Bench) it was stated:
"...It is our considered view that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the court is duty-bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State to immovable property and give an upper hand to the encroachers, unauthorised occupants or land grabbers."
46. A plea of adverse possession must be pleaded with proper particulars, such as, when the possession became adverse. The court is not to travel beyond pleading to give any relief, in other words, the plea must stand on its own two feet. This Court has held this
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 in the case of V. Rajeshwari v. T.C. Saravanabava (two- Judge Bench):
"...A plea not properly raised in the pleadings or in issues at the stage of the trial, would not be permitted to be raised for the first time at the stage of appeal..."
47. It has also been held in the case of State of Uttrakhand v. Mandir Sri Laxman Sidh Maharaj (two- Judge Bench):
"...The courts below also should have seen that courts can grant only that relief which is claimed by the plaintiff in the plaint and such relief can be granted only on the pleadings but not beyond it. In other words, courts cannot travel beyond the pleadings for granting any relief..."
48. Mandir Sri Laxman Sidh Maharaj (supra) was relied on in Dharampal (Dead) v. Punjab Wakf Board (two- Judge Bench) on the same principle.
49. Claim of independent title and adverse possession at the same time amount to contradictory pleas. The case of Annasaheb Bapusaheb Patil v. Balwant (two- Judge Bench) elaborated this principle as:
"15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all."
50. This principle was upheld in the case of Mohan Lal v. Mirza Abdul Gaffar (two-Judge Bench) -
"4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."
51. The Court in Uttam Chand (supra) has reiterated this principle of adverse possession.
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52. Burden of proof rests on the person claiming adverse possession.
53. This Court, in P.T. Munichikkanna Reddy v. Revamma (two-Judge Bench), it held that initially the burden lied on the landowner to prove his title and title. Thereafter it shifts on the other party to prove title by adverse possession. It was observed:--
"34. The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned : once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession...."
54. The Court reiterated this principle in the case of Janata Dal Party v. Indian National Congress (two-Judge Bench):
"...the entire burden of proving that the possession is adverse to that of the plaintiffs, is on the defendant..."
55. The State cannot claim the land of its citizens by way of adverse possession as it is a welfare State.
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 [State of Haryana v. Mukesh Kumar (two-Judge Bench)].
12. The well settled principles that laid down in Karanatka Wakf Board and Government of Kerala is that the party claiming adverse possession must prove that his possession is: 'nec vi, nec clam, nec precario' that is, peaceful, open and continuous. The possession must adequate in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner, and the actual visible, exclusive, hostile and continuity over the statutory relief.
13. This being the position of the law, the facts in the present scenario needs to be looked into. In the present case, the defendants set up two contentions:
(i) Defendant No.1 has purchased the suit schedule property by way of oral purchase from the father of plaintiff.
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(ii) Ex.D-16 - agreement of sale in favour of defendant No.1 by the plaintiff and he has perfected the title of adverse possession.
14. Defendant No.1 claims his title over the suit schedule property and also set up a plea of adverse possession. Defendant No.1 cannot set up a plea of title and plea of adverse possession simultaneously and would amount to contradictory plea.
15. The material on record would prove otherwise that he has been in possession of the suit schedule property as a permissive possessor and not adverse to the title of the plaintiff. Section 53A of the Transfer of Property Act, 1882 ("the TP ACT" for short) cannot be taken as a ground, which is inconsistent with each other i.e., the plea of adverse possession and retaining the possession by operation of Section 53A of the TP Act. On one hand, the defendants tried to put up a claim that he is in possession of the suit schedule property by oral purchase and also by way of an agreement of sale in view
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 of operation of Section 53A of the TP Act and on the other hand, the plea of adverse possession i.e., possession of the suit schedule property to the knowledge and hostility of the plaintiff which cannot go together. The plea of adverse possession would not be available to the defendants unless it has been asserted and pointed out that it is hostile animus against the true owner and the entire exercise of the defendants is contrary to the material placed before the Court. The pleadings of defendant No.1 at paragraph No.5 and at paragraph No.10 are inconsistent, which reads as under:
"5. That the contents of para No.5 of the plaint are true so needs no reply. It is submitted that the defendant No.1 his mother Shivamma, and father Bheemsha were previously residing at Chincholi. After the death of Bheemsha the father of defendant No.1 both defendant No.1 and his mother Shivamma shifted to Neema Hosalli village. That the suit land was barren land and un-worthy for agriculture, and it is in the out skirts of the village. The defendant No.1 and his mother Shivamma orally purchased the open space from Abdul Rahaman started to reside in the suit land by
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 erecting a hut. Later on gradually they have constructed a pukka house. The defendant No.1 started to reside there since 1979. The plaintiff has not at all raised any objection at that time. The defendant No.1 was illiterate person he has not taken any permission for constructing the house. But actually defendant No.1 and his mother are residing in the suit house by and the said house is constructed by defendant No.1. And it is pertinent to mention here that the defendant No.1 has given application for permission an also paid necessary amount to Gram panchayat in the year 1998.
xxx xxx xxx
10. That the contents of para N.10 of the plaint are false and created for the purpose of suit. That it is pertinent to mention here that, later on the plaintiff taking undue advantage of the suit land and suit house being mutated in his name raised objection so under those circumstances there was a settlement between the plaintiff and defendant No.1 before the elder of the village and as per the settlement, defendant No.1 was directed to pay Rs.2000-00 and the plaintiff after receiving the said amount he has given up his rights whatsoever in the suit house and suit open space in favour of defendant No.1. And accordingly to evidence this fact, An agreement deed was executed by the plaintiff in this regard. On 2-6-1982. The said
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 agreement deed is attested by witnessess. And later on the defendant got mutated the suit house in his name. And at the time of mutation in the year 1987, the plaintiff has filed objection. After detailed enquiry the mandalpanchayath got mutated the suit house in the name of defendant No.1, by rejecting the objection of the plaintiff on 28-10-1987. The copy of said proceedings is filed herewith. The plaintiff has not challenged the said mutation proceeding uptill now."
(Emphasis supplied)
16. The plea of adverse possession is to be taken against a right owner. Defendant No.1 tries to set up his title over the suit schedule property and also takes up a plea of adverse possession. The plea of adverse possession by a party cannot be taken when the party is in permissive possession. The Apex Court in the case of Thakur Kishan Singh vs. Arvind Kumar3, wherein it has held that the permissive possession to become adverse must be established by cogent and convincing evidence to show hostile, animus and possession adverse to the knowledge of true owner. Mere possession for 3 (1994) 6 SCC 591
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 howsoever length of time does not result in converting the permissive possession into adverse possession. This possession was also reaffirmed by the Apex Court in the case of Ram Nagina Rai and another Vs. Deo Kumar Rai (Deceased) By Legal Representatives and another4, the essential ingredient to fulfill the plea of adverse possession in cases of permissive possession would arise when such permissive possession becomes hostile and adverse to the true and real owner.
17. In the present facts, the defendant was in permissive possession as contended in his written statement and the defendant has failed to place material as to when his permissive possession has become hostile and adverse to the true and real owner. The other averment in the written statement as pleaded is that, he is in possession of the property as part performance pursuant to an agreement of sale, a person claiming to come into possession of a property by virtue of Section 4 (2019) 13 SCC 324
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 53A of the TP Act cannot claim possession by simultaneously taking the plea of adverse possession as both the pleas are inconsistent with each other as held by the Apex Court in the case of Mohan Lal (deceased) through his LRs. Kachru & Others Vs. Mirza Abdul Gaffar & Another5
18. The First Appellate Court has totally misread the entire pleadings and has arrived at a conclusion that the document at Ex.D.16-the agreement of sale is an invalid deed of transfer and the possession under the deed can be held to be in adverse possession and goes to the extent of holding the possession of the suit property is on the basis of a sale, Ex.D.16 is totally misinterpreted by the First Appellate Court without taking note of the averment and pleadings of defendant No.1. The judgment relied by the learned counsel appearing for the respondents in the case of Bondar Singh and others Vs. Nihal Singh and 5 (1996) 1 SCC 639
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 Others6 was considered in Avinash Kumar Chauhan vs. Vijay Krishna Mishra7 and at paragraph Nos.19, 20, 21 and 22 as under:
"19. The contention of learned counsel for the appellant that the document was admissible for collateral purpose, in our opinion, is not correct. In Bondar Singh this Court was not concerned with the provisions of the Act. Only interpretation of the provisions of the Registration Act, 1908 was in question. It was opined:
"The main question, as we have already noted, is the question of continuous possession of the plaintiffs over the suit lands. The sale deed dated 9-5-1931 by Fakir Chand, father of the defendants in favour of Tola Singh, the predecessor- in-interest of the plaintiffs, is an admitted document in the sense its execution is not in dispute. The only defence set up against the said document is that it is unstamped and unregistered and therefore it cannot convey title to the land in favour of the plaintiffs. Under the law a sale deed is required to be properly stamped and 6 (2003) 4 SCC 161 7 AIR 2009 SC 1489
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 registered before it can convey title to the vendee. However, legal position is clear law that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes. In the present case the collateral purpose to be seen is the nature of possession of the plaintiffs over the suit land. The sale deed in question at least shows that initial possession of the plaintiffs over the suit land was not illegal or unauthorised...."
In the present case, by reason of the statutory interdict, no transfer at all is permissible. Even transfer of possession is also not permissible. (See Pandey Oraon v. Ram Chander Sahu [1992 Supp (2) SCC 77] and Amrendra Pratap Singh v. Tej Bahadur Prajapati [(2004) 10 SCC 65]:
20. The Registration Act, 1908 provides for such a contingency in terms of the proviso appended to Section 49 thereof, which reads as under:-
"49. Effect of non-registration of documents required to be registered.--
No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall--
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (1 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument."
21. Section 35 of the Act, however, rules out applicability of such provision as it is categorically provided therein that a document of this nature shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, we fail to see any reason as to how the document would be admissible for collateral purposes.
22. The view we have taken finds support from the decision of the Privy Council in Ram Rattan v. Parma nand [(1945-46) 73 IA 28 : AIR 1946 PC 51] wherein it was held:
"That the words 'for any purpose' in Section 35 of the Stamp Act, should be given their natural
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 meaning and effect and would include a collateral purpose and that an unstamped partition deed cannot be used to corroborate the oral evidence for the purposes of determining even the factum of partition as distinct from its terms."
The said decision has been followed in a large number of decisions by the said Court. In Bhaskarabhotla Padmanabhaiah v. B. Lakshminarayana [AIR 1962 AP 132] it has been held:-
"9. In this case, the learned Subordinate Judge has observed that what the plaintiff was trying to prove was not the division in status but to show that the property was divided under the partition deed. In any case, the fact that the document is inadmissible due to want of being stamped is clear. For, in Ram Rattan v. Parma Nand [(1945-46) 73 IA 28 : AIR 1946 PC 51] Their Lordships of the Privy Council held that the words 'for any purpose' in Section 35 of the Stamp Act should be given their natural meaning and effect and would include a collateral purpose and that an unstamped partition deed cannot be used to corroborate the oral evidence for the purpose of determining even the factum of partition as distinct from its terms."
It was furthermore held :
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 "10. In the result, I agree with the learned Munsif Magistrate that the document is 'an instrument of partition' under Section 2(15) of the Stamp Act and it is not admissible in evidence because it is not stamped. But, I further hold that if the document becomes duly stamped, then it would be admissible in evidence to prove the division in status but not the terms of the partition."
In Sanjeeva Reddi v. Johanputra Reddi [AIR 1972 AP 373] it has been held :
"9. While considering the scope of Section 35 of the Stamp Act we cannot bring in the effect of non- registration of a document under Section 49 of the Registration Act. Section 17 of the Registration Act deals with documents, the registration of which is compulsory and Section 49 is concerned only with the effect of such non-registration of the documents which require to be registered by Section 17 or by any provision of the Transfer of Property Act. The effect of non-registration is that such a document shall not affect any immovable property covered by it or confer any power to adopt and it cannot be received as evidence of any transaction affecting such property or conferring such power. But there is no prohibition under Section 49 to receive such a document which requires registration to be used for a collateral purpose i.e. for an entirely different and
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 independent matter. There is a total and absolute bar as to the admission of an unstamped instrument whatever be the nature of the purpose or however foreign or independent the purpose may be for which it is sought to be used, unless there is compliance with the requirements of the provisos to Section 35. In other words if an unstamped instrument is admitted for a collateral purpose, it would amount to receiving such a document in evidence for a purpose which Section 35 prohibits. There is nothing in B. Rangaiah v. B. Rangaswamy [(1970) 2 AnWR 181] which supports the contention of the petitioner. That was a case as pointed out by Kuppuswami, J., where there were two instruments though contained in one document, one a settlement in favour of the fourth defendant therein and the other a will. It was therefore held that part of the instrument which constitutes a will did not require any stamp and will be admissible in evidence for proving the bequest contained therein. It was for that reason that the learned Judge said that Section 35 of the Stamp Act has no application to a case where one of the separate instruments relating to one such matter would not at all be chargeable under the Act as in the case before him."
In T. Bhaskar Rao v. T. Gabriel [AIR 1981 AP 175] it has been held :
"5. Section 35 of the Stamp Act mandates that an instrument chargeable with duty should be
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 stamped so as to make it admissible in evidence. Proviso (a) to Section 35 of the Stamp Act enables a document to be received in evidence on payment of stamp duty and penalty if the document is chargeable, but not stamped or on payment of deficit duty and penalty, if it is insufficiently stamped. The bar against the admissibility of an instrument which is chargeable with stamp duty and is not stamped is of course absolute whatever be the nature of the purpose, be it for main or collateral purpose, unless the requirements of proviso (a) to Section 35 are complied with. It follows that if the requirements of proviso (a) to Section 35 are satisfied, then the document which is chargeable with duty, but not stamped, can be received in evidence."
It was further held :
"7. It is now well settled that there is no prohibition under Section 49 of the Registration Act, to receive an unregistered document in evidence for collateral purpose. But the document so tendered should be duly stamped or should comply with the requirements of Section 35 of the Stamp Act, if not stamped, as a document cannot be received in evidence even for collateral purpose unless it is duly stamped or duty and
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 penalty are paid under Section 35 of the Stamp Act."
(See also Firm Chuni Lal Tukki Mal v. Firm Mukat Lal Ram Chandra [AIR 1968 All 164] and Chandra Sekhar Misra v. Gobinda Chandra Das [AIR 1966 Ori 18].
19. However, in the present facts, the parties are not relying on an unregistered sale deed. The Apex Court in the case of Avinash has held that the unregistered sale deed which required payment of stamp duty could not be admitted for any purpose whatsoever.
20. In the present facts, the defendant has not claimed his title on an unregistered sale deed but on the agreement of sale that he is in possession adverse to the knowledge of the plaintiff.
21. This Court in the case of Chepudira Madaiah v. Mallengada Chengappa & others at para No.17 has held as under:
"17. As held by the Hon'ble Apex Court in Dagadabai (Dead) by Legal Representatives v. Abbas alias Gulab Rustum Pinjari, reported in
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 (2017) 13 SCC 705 : (AIROnline 2017 SC 602), the person raising plea of adverse possession must necessarily first admit the ownership of true owner of relevant property to the knowledge of that owner. In the instant case, the defendants in their written statement have admitted the ownership of the plaintiffs over the suit schedule property. Apart from the defendants raising the plea of adverse possession and admitting the ownership of the true owner of relevant property to the knowledge of the said owner, they should also prove that their possession is an actual, open, exclusive, hostile and continued over statutory period by wrongful dispossession of rightful owner. Thus, animus possidendi is essential. Therefore, mere possession cannot be deemed to be adverse possession merely on the basis of denial of another's title over property for that would be violative of basic rights of actual owner. Until the defendants' possession becomes adverse to that of the real owner, the defendants continue in permissive possession of the property. Only if the defendants' possession becomes adverse to the interest of the real owner and the real owner fails to file the suit for possession within twelve years, as prescribed under Article 65 of the Limitation Act, from the point of time the possession by the defendants becomes adverse to the plaintiffs, the real owner loses his
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 title over the property. Every possession is not an adverse possession. The defendants will not acquire adverse possession by simply remaining in permissive possession for howsoever long it may be."
22. The Apex Court, in the case of Roop Singh (Dead) through L.Rs. vs. Ram Singh (Dead) through L.Rs.8 at para Nos. 8 and 9 has held as under:
"8. It also appears that the High Court has ignored the finding of fact to the effect that the defendant has failed to prove the so-called agreement to sale in his favour. He has not produced on record the said sale deed or a letter executed by the plaintiff in favour of the defendant or his brother. The Appellate Court has further observed that the defendant has not led the evidence of the witnesses in whose presence the said document was executed. In our view, there being no document on record, the alleged contents of the deed could not have been considered by referring to the oral say of the defendant.
9. Further, even with regard to appreciation of evidence the High Court materially erred in considering the evidence of Anoop Singh for holding 8 AIR 2000 SC 1485
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 that defendant had been in possession for 15-16 years from the date of the suit and that possession being not permissive and adverse to the title of the plaintiff, would ripen into perfect title. This finding is quite contrary to the evidence of Anoop Singh and the finding given by both the Courts below who after appreciating the evidence of witnesses have specifically arrived at the conclusion that the witnesses have nowhere stated that defendant asserted his hostile title. From the deposition of the said witnesses and the revenue records, the Courts arrived at the conclusion that since 1956-57 the defendant was in possession but that possession was as a bataidar. As the suit was filed on 04.2.1969, it cannot be said that defendant has perfected his title by adverse possession. In the written statement, the defendant has only asserted that about 14 years ago plaintiff gave this land by executing the sale agreement for Rs.611/-; the sale deed was written in presence of two persons of the same village and hence since 1955 defendant is in possession of the land as an owner/purchaser. Therefore, he has become owner of the suit property by adverse possession. Except this bare evidence, there is no other evidence on record to establish that defendant got possession of the property by purchasing the same. As against this, the revenue record clearly establishes that plaintiff was the owner of the
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 property and that he had handed over the possession of the suit land to the defendant for cultivation as bataidar. It appears that the High Court materially erred in not referring to the evidence of plaintiff who has specifically deposed that in the year 1956-57 he had given the suit land to the defendant for two years on batai. It is also to be stated that plea of adverse possession and retaining the possession by operation of Section 53-A of the Transfer of Property Act are inconsistent with each other. Once it is admitted by implication that plaintiff came into possession of the land lawfully under the agreement and continued to remain in possession till the date of the suit, the plea of adverse possession would not be available to the defendant unless it has been asserted and pointed out hostile animus of retaining possession as an owner after getting in possession of the land. (Re:
Mohan Lal vs. Mirza Abdul Gaffar, (1996) 1 SCC 639 : (1996) AIR SCW 306 : AIR 1996 SC 910."
23. The Apex Court, in the case of Ghanshyam vs. Yogendra Rathi9 at para Nos.14 to 17, has held as under:
"14. In connection with the general power of attorney and the will so executed, the practice, if 9 (2023) 7 SCC 361
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 any, prevalent in any State or the High Court recognising these documents to be documents of title or documents conferring right in any immovable property is in violation of the statutory law. Any such practice or tradition prevalent would not override the specific provisions of law which require execution of a document of title or transfer and its registration so as to confer right and title in an immovable property of over Rs 100 in value. The decisions of the Delhi High Court in Veer Bala Gulati v. MCD [Veer Bala Gulati v. MCD, following the earlier decision of the Delhi High Court itself in Asha M. Jain v. Canara Bank holding that the agreement to sell with payment of full consideration and possession along with irrevocable power of attorney and other ancillary documents is a transaction to sell even though there may not be a sale deed, are of no help to the plaintiff- respondent inasmuch as the view taken by the Delhi High Court is not in consonance with the legal position which emanates from the plain reading of Section 54 of the Transfer of Property Act, 1882.
15. In this regard, reference may be had to two other decisions of the Delhi High Court in Imtiaz Ali v. Nasim Ahmed and G. Ram v. DDA which inter alia observe that an agreement to sell or the power of attorney are not documents of transfer and as such the right, title and interest of an immovable property do not stand transferred by mere execution
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 of the same unless any document as contemplated under Section 54 of the Transfer of Property Act, 1882, is executed and is got registered under Section 17 of the Registration Act, 1908. The decision of the Supreme Court in Suraj Lamp & Industries (P) Ltd. v. State of Haryana also deprecates the transfer of immovable property through sale agreement, general power of attorney and will instead of registered conveyance deed.
16. Legally an agreement to sell may not be regarded as a transaction of sale or a document transferring the proprietary rights in an immovable property but the prospective purchaser having performed his part of the contract and lawfully in possession acquires possessory title which is liable to be protected in view of Section 53A of the Transfer of Property Act, 1882. The said possessory rights of the prospective purchaser cannot be invaded by the transferor or any person claiming under him.
17. Notwithstanding the above as the respondent- plaintiff admittedly was settled with possessory title in part performance of the agreement to sell dated 10.04.2002 and that the appellant- defendant has lost his possession over it and had acquired the right of possession under a licence simpliciter, exhausted his right to continue in possession after the licence has been determined. Thus, the appellant-defendant parted with the
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 possession of the suit property by putting the respondent- plaintiff in possession of it under an agreement to sell. The plaintiff-respondent in this way came to acquire possessory title over the same. The appellant- defendant, as such, ceased to be in possession of it as an owner rather occupied it as a licencee for a fixed period which stood determined by valid notice, leaving the appellant- defendant with no subsisting right to remain in possession of the suit premises."
24. The Apex Court has held that the plea of adverse possession and retaining the possession by operation of Section 53A of the TP Act are in consistent with each other and further held that, when a person contends that he is in possession under an agreement and continue to remain in possession till the date of the suit, the plea of adverse possession is not available to the defendants unless and until he has asserted and pointed out and hostile animus of retaining possession as an owner after getting in possession of the land. In light of the law declared by the Apex Court and the judgments of the Co-
ordinate Bench of this Court, this Court is of the
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NC: 2023:KHC-K:6834 RSA No. 7382 of 2011 considered view that the mere possession for a long time does not convert the permissive possession into adverse possession and accordingly, the first appellate Court was not justified in reversing the judgment and decree of the trial Court and the substantial questions of law framed by this Court need to be answered in favour of the appellant.
Accordingly, this Court pass the following:
ORDER
(i) The regular second appeal filed by the plaintiff is hereby allowed.
(ii) The judgment and decree of the first appellate Court dated 30.07.2011 in RA.No.64/2009 is hereby set aside and the judgment and decree of the trial Court dated 27.10.2009 in O.S.No.76/2001 stands confirmed.
(iii) The respondents are directed to handover possession of the suit property forthwith.
Sd/-
JUDGE S*/MBM List No.: 1 Sl No.: 67