Karnataka High Court
Deveeramma vs Rajashekarappa on 6 January, 2010
I_ RSA 24/04
IN THE HIGH COURT OF KARNATAKA AT BANGA1.<);_;E
DATED THIS THE cam DAY OF JANUARY 20410:
BEFORE _ t V t} A
THE HON'BLE MRJUSTICE A.S.PACH35£.§.i§:UE§t=§.::: T»
R.s.A.No.24g:_,;oo4:_" 3
BETWEEN
1. Deveeramma
W/0 Late Channabasappa
2. Onkarappa v A
S/o Late Cha:1nabasaf)pA-''1.'A ''
3. Ujjineppa ~ V V'
S/0 Late Cbattnabasappg .. ____ H
4. Madappa.-' V V.
S/0 Late (_3h'a_I1;Y;1abasappav_' .. V
5. Jay,¢ivppe'AtA"Vt.5'V., H _ --
S / 0 'Late 'Charmabasappgt = '
6. Draksfi§'3namfi"ia " 4
D /_o Late"Chann;ibas;1ppé1
W;/0" R.avikur::.ar
.V
' _ 'S/Vo -L_ete"Qh'annabasappa
2
A 0 Late "Channabasappa
_ "9. Radhe :
' .. VD/o Late Channabasappa
D/0 Late Channabasappa
" -. iA'l1"are Majors,
2 RSA 24/O4
R/o Medugondanahalli Village.
Channagiri Talnk,
Davanagere District. APPELLANT/ S
{Sri. Jayakumar S. Patil Assts. Adv.)
AND
Rajashekarappa
Age: Major, R/o Medugondanahalli
Channagiri Taluk g ._ M é
Dist: Davangere. 4R_ESPONB.ENT[AS at
{Sri. G.S. Balagangadhar, Adv.) T.
=x=$a=1;>:<>ié"
This RSA is filed under Section .100 O'F.CPC against the
judgment and decree dtd,-.18.7.2.0G3.. 'passed In R'.'A.No.79/2000..
on the tile of the Prl. C1v__il'*---._Iud__'ge (Sr;D_1:,]{"l.)avanagere, allowing
the appeal and setting aside 'the. j;udg:r:r.ent_ and decree dtd.
29.7.2000, passed in O.S.No~.-193'/'1988-;«._Von;'the~ file of the Civil
Judge, (Jr.I)n.} 8: J..M.F.C,.,~'Chai1nagiti_. 0'
b'e'eri"heard"'and reserved. coming on for
pronoun*ceme_nt"c'f indgment-,.,__this day. the Court. delivered the
. . 4
following: " V
" JUDGMENT
_'§_I'heeA11nsuc'(:e_sstl'u1 plaintiffs have approached this Court in
;'pp¢'5'i the judgment and decree passed by the Lower
lvfkppesllate:tCo£:rVt';'re:versing the judgment and decree of the Trial
Coui-tggl dismissnig the suit of the appellants for relief of
_ 'd_eclarat'ion'1. and possession.
0 The facts relevant for the purpose of this appeal are as
3 RSA 24/04
The parties are referred to as per their rank before the
Trial Court for the purpose of convenience.
The appellants herein are the legal up
deceased Channabasappa the plaintiff before' ,
whereas the respondent herein is the defendaratl
the plaint reveals the avermentsthatilthe'=plainti'i£V'is the'Eowner'..
of the land bearing R.S.No.6/3'"m.:easuringV" acre Egvuntas of
Medugondanahalli Village" descrihe'd*.i.n; gchedfire the plaint
and he purchased this 1965-66 under a
registered sale V deed aridli V' if date of the sale
transaction of land.
The of S.No.6/4 adjoining the land
of the plaintiff and had also purchased the said
property from' its earlier erstwhile owner. In the past, both the
. lands' were part of Survey No.6 and due to the subsequent
salesVVo§V:"'portio.ns:.. of the properties, the sub divisions were
effected. vffheij-'plaintiff and the defendant converted their land to
",i1I'CC3.I11lt ugsarden land about four years prior to the institution of
At that time, though the plaintiff had desire to put the
* fence. he did not do so as his financial condition was not sound.
* year earlier to the institution of the suit, he tried to put up
$4..
4 RSA 24/04
the barbed fence to his land and at that time. the defendant
raised a dispute and in the circumstances, the plaintiff
approached the Assistant Director of Land Records to survey his
land and to fix up the boundaries. The land was 'the
year 1988 in the presence of the parties and
there was an encroachment by the defendant the '
plaintiff to an extent of 0.15 guntasrzéonfthefv
per the survey report, when the i'nade7anA..e'ffQ17§
up the barbed fencing. the dexfevnpidant in the
circumstances, the p1ain.tiff._ to institute a suit
for declaration that he is 'AAfor__'possession of the
encroached portio'n_ci.ain§;ing: that of action for the suit
arose all monthV:»V_Veari.ier.p't'e._' the institution of the suit and
accordingly; 4.instituted_fl"e.__z1sui.: praying to declare that the
plaintiff is entitled Vfqr thefpossession of the encroached portion
'to ans-xtefnt of guntas described in the schedule 'B' to the
p1ai:2t.V '
i' ,_."iI'heV_defendant appeared and filed his written statement
'denying. the aliegations made and contended that he is the
the iand bearing R.S.No.6/4 and has been in possession
"the same since from the date of its purchase. It is also his
~¢1.§im that there is a bund inbetween the land of the piaintiff
«L,
b' RSA 24 /04
in the eastern side for a continuous period of
more than twelve years prior to the suit withont__.__
obstruction and to the knowledge of plaintiff
owner and as such perfected his title by
possession '? it
ADDITIONAL iSSUES N0. 1:-
1. Whether the suit is barred hiyriilihniitationi
3. What order or decree _ A T V g
4. The son of the plainhtififghwas stand
his evidence, the documents were rriarked. The
defendant examined :another witness DW.2
and no documents have-heenv evidence. The
Trial Court the parties and on
appreciation of ma'ter¢iai.':on Vresorhd decreed the suit declaring
that plaintiff.'is:4engtit.led.. to' possession of the encroached
portion to an extent 1.Er"g.untas mentioned in the schedule '13'
to the plaint. it '-
Aggriév__ed by the judgment and decree. the defendant
happrogach'e'd"_v.t_he;.tower appellate Court in RA 79/2000 and the
saiddapp-e'al "came to be allowed by the Appellate Court on the
A 'ground that the suit instituted by the plaintiff is not within the
i rliniitahtion and dismissed his suit. Aggrieved by the judgment
axiii decree of the lower appellate Court dismissing the suit, the
51/
8 RSA 24/O4
plaintiff purchased 1 acre 29 guntas of land in ._
Sy.No.6/ 3 within the specific boundaries '?
4. Whether the Lower Appellate 1-
erred in law in dismissing the suit on the
that there is no encroachment
surveyor surveyed their landiafter. it
to both the parties and it was-__ ihund thatiithe V
Defendant has encroachieduithpe Iandptoi g:°1,¢x5:.§'*n:V.V
of 15 guntas in the plaintifi's«.land?
5. Whether"«.tlte_AIiowervfiAppelilate Court is
justified in law in dismissing if.he.«'sui'ti.fas_ 'barred by
limitation V' failed to
prove agilgo camepinfiéfliiillésisiession of the
encroached of the plaintiff
'2 .... _. 2
_ i' ' Appellate Court is
justifiedlrin l'a.vsr.°iVn .-diisrnissing the suit relying on
the adrnis_sions' of'-thié: plaintiff though it does not
waf"su_ggc=sts that the plaintiff had the
lxnoiylejdge of the encroachment prior to the
. vVS'11t'V§Y"1')fr.51'lit land ?"
A 7. I haiieiheard the learned counsel for the parties.
= VV'"The learned counsel for the appellants contend that
'lower appellate Court committed an error in holding that the
M _s_u.it was barred by time despite the fact that the cause of action
9 RSA 24/04
for the suit arose a month earlier to the institution of the suit.
It is his submission that even the principle ofVi_i'~:idi:erse
possession does not apply to the facts on hand as__t'he'i
was unaware of the fact of encroachment
animus about the possession being
owner. It is his further submission that the suitpwhich'*
instituted for declaration and pos.s.e"ssion..wel1A from the
date of the cause of action and.-etieirxfirtpicles'$8-.and 65 of the
Limitation Act provide years and twelve
years respectivelyvand the suit is well in
time. suit is not only for
decIaration,€i.t and the interpretation of
the to be taken in a broad
perspective. he has sought for setting aside
the judgment. and,Vdecr-eeiuif the lower appellate Court and to
" '~ ._Vrest._i)rie dpecreeV"gran.ted by the Trial Court.
f " -. _V 9, 'Perrco_ntra, the learned counsel for the respondent
suit instituted is only for the relief of
declaration and the same is barred under Section 34 of the
f hiipepcific 'Relief Act. It is his submission that the reading of the
j'pray_er--' column of the plaint reveals that the plaintiff has not
sought for possession of the suit property and that the suit only
10 RSA 24/04
for the relief of declaration simplicitor is not rnaintainable in
law. It is his further contention that since from date of
purchase of the land bearing RS No.6/2004.
been in continuous and unobstructed possessioniof
to the knowledge of the plaintiff anc'-.:'ithat'theireb~y b
has acquired an absolute title to the's_ui't__propei_tp;' » Sol
contends that the suit filed is the that
the lower appellate court 'was disniissi.ng:§the suit as
barred by limitation. He plaintiff has admitted
the possession of. the defendant defendant is in
continuous title and on these
grounds, he have not made out any
grounds toucall V V V
__I"haveV.ciare'fulI5r_:'scrutinised the evidence led by the
parties, the of Courts below in the context of the
,..subrnissionsarnadeifbyihve counsel and the substantial questions
of raisediviiniithis appeal.
V11.' 'j_is:5'not in dispute that the plaintiff is the owner of
'V R.S.14\4io,.6';{3 situate on the eastern side of the property of the
i:Vr.defen_dant bearing R.S.No.6/4. As per the record of rights
_i produced, they measure 1 acre 29 guntas each. It is also in the
* -»e*--vidence of the plaintiff that there is a bund inbetween the
E 1. RSA 24/O4
property of both the parties and that the defendant has been in
occupation of his land upto the band existing inbetxvepen the
properties of both the parties.
12. PW. 1 is the son of the plaintiff and
his father to give evidence before i
suffering throat cancer and the poxverfof attorney
produced at. Ex.P.1. He staté's:"in his" about the
acquisition of the land _b_g§ring..49.'r$bj4.éj3._'measuring 1 acre 29
guntas under a registered 30.12.1965. The
certified copy of i'p;:.%:Vduced at Ex.P.2 and
the original___ to avail the loan
facility. V __I-ieVs"tatesiV«:in in the year 1987. in View
of the the parties, they submitted an
appiicationvtothesurveyfasithorities to survey the land and at
that time. authorities issued notices to the parties and held the
v}hic"h__revealed that there is an encroachment by the
bias:-pextent of 15 guntas in the land of the plaintiff.
He aiso staiteis that in the month of June 1988 they intended to
igput the fejnce including the area encroached and that there was
oixarrel between the defendant and his father and the
* defendant removed the fence and it is in these circumstances
if "that the suit came to be instituted. A
12 RSA 24/04
13. The plaintiff has produced Ex.P.3 the RTC extract of
S.No.6/3 and it reveals that the suit land measures 1v--'ancre 29
guntas. The property is in possession of the plaintifiian'd::.V"this
record of rights pertain to the period 1987-88
Ex.P.4 is the extract of the plaintiffs__propert}_FiV'or' .1995?»
96. Exs.P.5 and 6 are the index of'.,;an:§is irespectiibigfsuwfiéy
Nos.6/1, 6/ 2, 6/3 etc., and Ex; >18'-'.-'7__ is V_pVroper.tVjr"
land of the defendant bearingiu8L3\lo.fi/4 acre 29
guntas for the year 1988490. sketch "prepared by
the survey authorities and as its contents. it
reveals that the4_¢$v.:1_gr S.No.6/4, i.e., the
defendant has Vgun:tasVVc'f land of the plaintiff in
S.No.6/ encroached has been marked
with red 'co1ourrExtI5r9 certified copy of the sale deed
produced theuplaintiff to endorse the purchase of the land
. iheparinrig SIif€o;d'6/ 3. H iiiii it
._ pendency of the suit. the Court appointed
8 _ a Cornmissioner who inspected the lands of both the parties and
vitlanevtpbounriaries of both the properties were demarcated and
piuitimaitely, the Commissioner came to the conclusion that there
is__an encroachment in the property of the plaintiff to an extent
-I
1. 3 RSA 24/04
of 1'? guntas. The sketch has been marked as Ex.C.1 whereas
the notice issued, the memo of instructions by the defendant,
the postal acknowledgement for having served the notice and
the copy of the notice and the joint statementppppafl:'b;{§;i'the
parties to the suit and the answer to the
the parties have been marked as
So the perusal of the evidence
produced clearly establish the*fac__t that V_ there
by the defendant in the land of extent of 0.17'
guntas though the plavgntiff hisvllclaim for the
possession of 0.15 guntas by the survey
authorities. PW.*iaal'_so states that on 10.6.1988,
the Suiyeyorsfi_sitedthe'~lla11d it is only after the survey
that he to knoi4§~of'theerzcroachment by the defendant. So
also, he speaks abhor'-;_t th_eV'a'ppointment of Commissioner by the
--'V.n_VCou._1"t3'«:. and thellllnzeasurement of the land including the
encroachrnen.tii'which revealed 0.17 guntas encroachment in the
land'-of
states that prior to 1988, the plaintiff was not
uaware that the defendant has encroached his land. So as could
_l be seen from the evidence of PW.l. the encroachment by the
'' ~»defendant came to the knowledge of the plaintiff for the first
tvén
14 RSA 24/O4
time in the year 1988 after the survey by the authorities
concerned. In the cross examination, he admits that sinjcep from
the date of purchase of the land bearing S
been in possession of the land to the same extentluiptiiliipithe .
of the institution of the suit. He"'a1.so
partition of the land between the bro:the1rs,*~
was not taken into consideration'duringt.he partition;-»
16. Anyhow, the appreciation'tl':ee.' evidenceeoif PW.1 and
the documents produced show that the plaintiff
is the owner of theland bearing measures I acre
29 guntas not aware of the
encroaehmentepptiiilthe in the year 1988 and that
for the 'first to know about the encroachment
after the survey. V
the ico«r:.1_:_ex«t of these facts revealed the evidence of
I-'WV'.'l and the.,documents produced. if the evidence of DW.1 the
defendant«ii_s»._1owoltied into, in the chief examination, he states
if _ thati"only__'.a1te'r the measurement of the land, he came to know
that there vvas encroachment by him in the land of the plaintiff.
p.iH.e"--.alsio admits in the chief examination that during the
Vjmeiasurement, the plaintiff was also present and he also came to
15 RSA 24/04
know about the encroachment for the first time. He reiterated
the said fact in the chief examination in para 3 and even in the
cross examination at para 4. DW21 admits that on 1'(l.'6,1988
when the survey was done. he came to kno.w__"'abouj'; Vvthe
encroachment of 0.15 guntas of land of the'lp'lair:1t'itV"fs';i
suggestion was made by the defendari't"thatitillvl. i
plaintiff was not aware of 15 guntaszdopf
denies the said suggestion. thelplitiiommissionerii
had issued the notice to the the local
inspection over the 'tn'. know through his
lawyer that there is anWen'c--roachrne'n'tv.' extent of 0.17
guntas of 1and;in"s}.§:o.6]3. grfie 'p1§iiitir£..r§as suggested to 1:)w.1
that in;VthelVyear»V_19d§.' «defendant surveyed the land and that
he is deposing fa1seIy_>l'on¥ly»..:h.ecause he has to hand over the
possession o'f..the eng:roach-ed property. This suggestion has been
~' v. denvieifl deteiidant'. So the perusal of the evidence of PW.1
DW.._J;ai:d°i!:_s appreciation would establish that the parties
cani.eVvto.Vl§riow'*about the encroachment for the first time in the
year"'-19838.. when the survey of both the properties was done by
Tthecp authorities concerned and that thereafter. when the
_ diloizrarxiissioner made a local inspection and submitted the report
V' Hahiout the encroachment.
16 RSA 24/04
18. The learned counsel for the defendant considegfing the
suggestion that in the year 1968 when the
land surveyed. had come to know about the enc;c'oachn}eht
that he is deposing falsely because_he.__has the
Possession of the encroached area.:7-.as
suggestion has been denied. bzitthe
suggestion would go to establishl4l"that_even'ing year 1968.
there as a survey and at was made
known to the parties. Relying made by the
defendant. he ..' possession of the
encroached .12 years is barred by
limitation aware. the encroachment in the
Year 1968 itself.' -~
1_9. .Al_§u.co'ul,dVibedseeiil from the pleadings of the parties.
,_the came Vltovmknow about the encroachment for the first
tithe' in thenyear .1988 and so also in the evidence of P'W.1. he
r;:.£m.te';' of having the knowledge of encroachment in
V _ the year and so far as the suggestion referred to supra it
Vaheenmlenied. It is Wei} established principle of law that a
aglsuggesltion denied has no evidentiary vaiue. If the defendant
had admitted the suggestion made, the same could have
:7 RSA 24/O4
some evidentiary value and the defendant could have taken the
benefit of the same, but in view of the fact that the suggestion
has been denied, the defendant cannot take its benefit and state
that the plaintiff was aware of the encroachment
1968.
20. If really the defendant was'aw'are of the in the '
year 1968 and also the encroachment, have
the documents to show the su'rv_ey...done"'andithe eiicreachmente V
shown in the records. When the___de'£endant himseif ciaims that
he has been in adverse:_pbssc_ssion. 'c_f<.the__ suit schedule 'B'
property for a period more:'_than_ 3+ea':e',:,V..;--t is for him to
produce the do'cu31"11ents::-_to€s}iow" that " the encroachment was
made known the year 1968 and that the suit is
barred by itixpne. Un'fortun.a:t'ely.V the defendant has not produced
any documents-» utoviprove the encroachment being in the
.aknowiedgEe"of'the plaintiff in the year 1968 and also the survey
having' been done in the said year.
A "-.__21_V_: from the evidence of both the parties. it could be
'said thatthe parties were not aware of this encroachment much
"eiarlibeirfto the survey held in the year 1988. The plaintiff and the
"*.___'"'defendant were not aware of this encroachment and it is
19 RSA 24/04
necessary for the defendant to plead and prove that he had an
animus to enjoy the encroached portion to perfect his title by
adverse possession. On this aspect of the matter. the learned
counsel for the appellants has relied upon the decisio'n'this
Court reported in ILR 1990 KAR 610 (Danappa
Gurupadappa Mallappa Patanashetti). urMhperein_'this 'taking 'V
into consideration Articles 64 and of
held: V s s i
"Apart from actu"-3.1: and contivhuovns
possession which are among' pingredientsvvsof
adverse possession. th_er'e :3_houidp'hé necessary
animus on the part of "the l..pefson..xyh-lo'Vintends to
perfect hiVs_f:i't},¢ byAadyersepépos-sessitm'; A person
tvlié"'bo'11afideiEeiieVf thinks that the
property and as such he has been
in popssessionts 'such'--possession cannot at all be
adverse. possevssiicinsljecause it lacks necessary
lanirnus xlforiv perfecting title by adverse
possession."
seen from the principles laid down in the
decis.ionV_refe1?red to supra, it is necessary for the defendant to
'"a__s"estab1ishV__the animus as it is he who intends to perfect his title
"*by._adi*erse possession and as there is no material placed on
is record to prove the animus and when the evidence is contrary to
is it. it cannot be said that the defendant has established his title
20 . RSA 24/04
to the encroached property by adverse possession. This Court in
the above decision has also taken into consideration the
decisions of the Apex Court while laying down the principiepand
therefore, it binds the parties. So looking to the
has been led. the documents produced, the Trial
to a right conclusion by appreciating' the tH1I.~~CVV
parties that the adverse possession;"*has._'_Anot
that the plaintiff was entitied"~._to the:
encroached land. it C A C V
23. The counsel for placed reliance on
the decision of the_Apex Supp. (3) SCC
129 (Vinay another} wherein
the Ape}: Court provisions of Section 42 held
that in a suit filedV"for'decla--:tation of title to the property not in
exclusive tpossessionlof the plaintiff, held that the plaintiff ought
to have sotrght for anmamendrnent of the plaint and prayed for
thierpreliefiof possession." So also, he relied upon the decision of
the Jammu and Kashmir reported in AIR 1959
'C8; KASHMIR 52 (MST.Khatooni VS. Lassa and Others)
the abovesaid principle has been laid down by the High
-- He also relied upon AIR 1958 Manipur 38 [Naoroibam Bira
" Singh and others Vs. Waikhorn Leirenjao Singh and others) and
L
2 1 RSA 24/04
the High Court taking into consideration the provisions of
Section 42 held that when the plaintiff was not in pos'ses!si_on_.- no
declaration of title can be granted even if they
because of the proviso. So far as the principle_stlie"i
decisions referred to above, there nio
the learned counsel contends is: that not
for the possession of the encroa'c.hédb portionVanti'_:in'themahsence
of the said relief, the." suit;i-forjdeclaration'V-itself is not
maintainable in law. . i i
24. Now as'-c'ould<l')'e"se§n"£r.orniithepiipaiferments made in
para 2 of the page -
---- Vvsuit §ne....:o} declaration and
p}tissessiori1."j;r,iVtl1lregard the encroached portion
of. the V 'sui'tA:_:'._sch:edule garden land. The
encroa--cphment_ is it also marked in the survey
sketch axsajf' if V"
A para 2, the plaintiff has made it clear that the
filedpforvvdeclaration and possession of the encroached
portion. consider the pleadings in para 5 {a} the relief
"clause la.]__reads :
"(a) Wherefore, the plaintiff most
respectfully prays that this Hon'ble Court may be
pleased to pass a judgment and decree against
22 RSA 24/04
the defendant to declare that the plaintiff is
entitled for the possession of the concerned
portion land to extent of 0.15 guntas of land
shown in schedule B." V
26. The perusal of the relief clause in
that it is not happily worded. But anyhow,
interpreted in the context of the contents
2, wherein the plaintiff has niadez it thatviiitggyisiyg-,ygiit_:'§isvfihft;
declaration of ownership and possession" the iencroached
portion. Merely because', "in so words did
not say that he is see-lrinfg declaration and
possession and. that the plaintiff is
entitled for opi_nion__the prayer column has to
be liberally'. "far""as' the interpretation of the prayer
made in. 'para *5 of concerned. The Apex Court on
many; occasions» hasfheld that the pleadings in india have to be
atlibyenrallylconstrued sofas to do substantial justice to the parties.
~.'1'he_. para 5 {a} in the plaint is not properly drafted.
Buuythe of the plaintiff has been made clear by
Qmakingvaifispecific submission that the suit is for declaration and
"lypossession though it is not happily worded in para 5 (a) of the
' pliaint. I do not think that the suit is only for declaration or only
V possession. A reading of the whole plaint itself makes it clear
Mn
23 RSA 24/O4
that the suit has been instituted both for declaration and also
possession. The learned counsel for the defendant invited my
attention to the valuation slip filed by the plaintiff »\vi~'.thi'~Vthe
plaint. As could be seen from this valuation slip. it pf -5 V
"The suit is for declarati(3n**and p§ss§'§si--§;a,
the suit valued under Section up the
Karnataka Court Fees and Suits. lfaluationj
Hence. the fixed Court fee is
the plaint. "
27. So even the valuation slip by the plaintiff
reveals that his suit is for-dheclarationsfand'*po'ssession. Now as
could be seen pr§o.visio_ns_V 'Section 24 (d) of the
Kamatalcai MCflo't:r:tiif,I4'ees:'§Va':1d"Suits Valiiation Act. 1958, it reads --
A ""'Sectioni"24 '
'={t4_)).li...v...VV.'*. . ' C
,i {(1) V"otl1er'cases. whether the subject-
' "n1att.er.ozf--._the suit is capable of valuation or not,
V'b.e_1.~computed on the amount at which
"'the ielieffzsought is valued in the plaint or on
iuirupees' one thousand) whichever is higher."
at ; __g7.V""1'he mistake made by the plaintiff in paying the Court
'tinder Section 24 {d} itself cannot take away the suit of the
:'_4"'plaintiff for possession and cannot be said that it is only for
{\%w.,
24 RSA 2,4/O4
declaration. Et is in the context of these circumstances. it can be
said that the suit filed is both for declaration and possessiopniand
not for the relief of declaration simplicitor.
28. Though the learned counse_1_ .r.eferrec_i' at 'o_fu it
the Specific Relief Act of 1877. Ui),4der_ft!~i'e new
Section 34 reads:
"34. Discretion of Coiurtiaas to ideciaratioh
of status or right .;. pp'eirSo_:n exfititled to°a'1'iy
legal character, or" .. _ to any
property. may institutpeia-.sui_.t person
dening, o1_'.. ixiterest{_§d to such
character ior the ilcourtwmay in its
discretiori aldeclaraition that he is
so enltiv-aiegi; and};iheiaplpaintifiivneeid not in sch suit
as1:§__for_ anyi iii:r"ther,preiief:.. '
i':ovided_that Court shall make any
sguchipdeclaraptiori where the plaintiff, being able to
V-iosieelg-a.Afu:'ther relief than a mere declaration of
i " » title, 'omi_tst_o do so."
if-{rider the said provision. though a suit for
--declaration.Asirnplicitor is not maintainable, in View of the fact
uuiilthiat the plaintiff has sued for the relief of declaration and
poé:.se'ssion as well, the said provision do not apply to the facts
e74
25 RSA 24/04
on hand and so also the principle laid down in the decision
referred to supra by the learned counsel for the responfiden't.,_f7.V_
30. Lastly, to consider the question of
relevant to note that the plaintiff hashipleaded "
cause of action for the suit arose:'.__one~
institution of the suit when the' d_efend'an't"remov'ed.
fence and therefore. claims that is suit has
been instituted on 27.'7..i9.$8 beiseen from the
survey made by the Records on
10.6.1988, the the time of the
survey. This PW.1 and also DW.1
in their e'v"i~deAnce".i iilhere "a:re--:iclea1"vadinissions by I)W.1 that he
and the plaintiff about this encroachment for the
first time when the parties came to know
aboutpgfihisencroachment'for the first time in the survey held in
niontEhi'ofVi'Jnne 1988. the cause of action for the institution
of »--a§a.§¢-..,i$arow to consider Article 58 wherein the suit is
for declaration', the period of three years from the date when the
'right to" sue first accrues. Furthermore as could be seen from
I '~iiX1'ticle~,65. wherein the suit is for possession of immovable
"aproperty based on title. the period of limitation is 12 years from
" date of the possession of the defendant becomes adverse to
<>>A_.o
26 RSA 24/04
the plaintiff. So even if Article 58 of the Limitation Act is
considered, the right to sue for the plaintiff arose for thhiepfirst
time in the month of June 1988, when the surveyf...O_%
was done and which gave him cause of action to:
suit. Furthermore, as far as the claimV.o*f"thep
adverse possession is concerned. the
when the possession of the de:?end_ant heco1nes'ia!d§ie1's.eHto than?
plaintiff. On this aspect of the theiieifideiice of the
parties is looked into, at allffaiware of the
encroachment made by him' and he also
admits in his to know about the
encroachment done. So from these
admissions, if clear that the cause of action
putforth bify. the plainti"faf.arose":a"month earlier to the institution
of the suit arid tvherevfore, it: cannot be said by any stretch of
~ i.imagi_nation: that the is barred by limitation.
appellate Court has considered the
possessionofdefendant since from the date of the purchase
of the land which was more than 12 years prior to the
instittition of the suit. It also took into consideration the fact
'-«t-hatpthere is a bund in between both the lands of the parties and
" the defendant has been in possession of the property upto
2? RSA 24/04
the band since from the date of its purchase. But it did not take
into consideration the fact that the defendant was notlaware
that he had encroachcd upon the property of the _
also, the plaintiff was not aware that there was ., V'
by the defendant in his land.
32. As far as the adverse possession is cc--nc'ern'ed'.l;
the question of animus as state'ds.:i"n the deci'sid.n to V
supra which was absent 'all alonlg the encroachxnent was
revealed for the first tizneuin lower appellate
Court failed to talrefinto of the matter
and thereby in" hfovldinglthat the suit filed by
the plaintifffor.the'§g:nera_ach'e--d is barred by time. In my
considered opinion,' approa.ch 'of the Court is both erroneous
and illegals 'Fhereby;' is entitled to both the relief of
declaration.' and 'p9slsessio:n of 0.15 guntas of land as prayed for
plaint and the mere fact that the encroachment
V"gu}:xtas and the plaintiff has prayed for 0.15
guntéts. docslnlotll make any difference as the possession sought
for is less than total area of encroachment. Hence, I answer the
I substantial questions of law as under:
M\
28 RSA 251»/O4
Substantial Question Nos.2 and 4 in the affirmative and
Substantial Question Nos.1, 3, 5 and 6 in the negative and
proceed to pass the following:
ORDER
The appeal is allowed. The judgment and the Lower Appeiiate Court in RA No._?9/2D00"d'iite*ti_':V is set aside and the judgment and V'ciecrjee..:paiSsed i'153r"1ui1€i'e__&'i'iria1 Court is restored. There is no ofde; as toooe-ts. JL