Karnataka High Court
Sudheendra Rao Kasabe S/O Ramachandra ... vs Narasayya S/O Hampayya Ors on 5 October, 2023
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NC: 2023:KHC-K:8018
RSA No. 7375 of 2011
®
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.7375 OF 2011 (DEC/INJ)
BETWEEN:
1. SUDHEENDRA RAO KASABE
SINCE DECEASED BY LRs;
1(A) VENUBAI
W/O LATE SUDHEENDRARAO KASBE
AGE: 66 YEARS, OCC: HOUSEHOLD
R/O: GILLESUGUR CAMP
TQ & DIST: RAICHUR-584140
1(B) JANAKI BAI
W/O LATE SUDHEENDRARAO KASBE
AGE: 64 YEARS, OCC: HOUSEHOLD
Digitally signed
by
R/O: GILLESUGUR CAMP
LUCYGRACE TQ & DIST: RAICHUR-584140
Location: HIGH
COURT OF
KARNATAKA
1(C) GIRIDHAR
S/O LATE SUDHEENDRARAO KASBE
AGE: 30 YEARS, BISINESS
17TH A CROSS, 11TH MAIN, MALLESHWARA
BEHIND CLOUD NINE HOSPITAL
BANGALORE NORTH-560048.
1(D) VIJYAKUMAR
S/O LATE SUDHEENDRARAO KASBE
AGE: 39 YEARS, OCC: AGRICULTURE
R/O: GILLESUGUR CAMP
TQ & DIST: RAICHUR-584140
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NC: 2023:KHC-K:8018
RSA No. 7375 of 2011
1(E) SRINIDHI
S/O LATE SUDHEENDRARAO KASBE
AGE: 33 YEARS
OCC: AGRICULTURE
R/O: 3-4-78, FORT, JENU GUDU
RAICHUR
TQ. AND DIST: RAICHUR.
...APPELLANTS
(BY SRI. AMEET KUMAR DESHPANDE, SENIOR COUNSEL FOR
SRI. DESHPANDE G.V., ADVOCATE)
AND:
1. NARASAYYA S/O HAMPAYYA
SINCE DECEASED BY LRS;
1A) NARASIHMHA
S/O NARASAYYA
AGE: 50 YEARS, OCC:AGRICULTURE
2B) BADESABU
S/O NARASAYYA
AGE: 45 YEARS, OCC: AGRICULTURE
3C) KANTAPPA
S/O NARASYYA
AGE:40 YEARS, OCC: AGRICULTURE
2. THE STATE OF KARNATAKA
THROUGH DEPUTY COMMISSIONER
GULBARGA-585101.
3. THE ASSISTANT COMMISSIONER
RAICHUR-584101.
4. THE TAHASILDAR
RAICHUR-584101.
5. M M CHARAN DEEPU
S/O M H MANJUNATH CHOUDRY
AGE: 27 YEARS
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NC: 2023:KHC-K:8018
RSA No. 7375 of 2011
OCC: AGRICULTURE
R/O: HOUSE NO.101, 14TH CROSS
8TH MAIN, MALLESHWARAM
BENGALUARU-560003
6. GAYATHRI
W/O G. THIMMA REDDY GOUDA
AGE: 50 YEARS
OCC: AGRICULTURE
R/O POST GILLESUGUR
TQ. AND DIST: RAICHUR-584140
...RESPONDENTS
(BY SRI. SHIVANAND PATIL, ADV. FOR R1(A) TO (C), R5 & R6
SMT. MAYA T.R., HCGP FOR R2 TO R4)
THIS RSA IS FILED U/S 100 OF CCP, PRAYING TO ALLOW
THIS APPEAL AND SET ASIDE THE JUDGMENT AND DECREE
DATED 10.10.2011 PASSED IN R.A. NO.15/2010 BY THE
LEARNED ADDL. SENIOR CIVIL JUDGE AND JMFC-I, RAICHUR,
SETTING ASIDE THE JUDGMENT AND DECREE DATED 20TH
MARCH 2010 IN O.S. NO.153/2004 BY THE LEARNED ADDL.
CIVIL JUDGE AND JMFC-III, AT RAICHUR.
THIS APPEAL COMING ON FOR DICTATING JUDGMENT,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present regular second appeal by the plaintiff assailing the judgment and decree dated 10.10.2011 in R.A.No.15/2010 on the file of the Addl. Senior Civil Judge & JMFC-I, Raichur, whereby, the judgment and decree of -4- NC: 2023:KHC-K:8018 RSA No. 7375 of 2011 the trial Court in O.S.No.153/2004 dated 20.03.2010 on the file of the Addl. Civil Judge & JMFC-III at Raichur, was set aside and the suit of the plaintiff was dismissed.
2. The parties herein are referred to as per their ranking before the trial Court for the sake of convenience.
3. This Court, while admitting the appeal on 22.01.2021, framed the following substantial question of law:
"Whether the first appellate court justified in reversing the judgment and decree of the trial Court?"
4. While hearing the appeal on 28.08.2023, this Court framed the following additional substantial question of law:
"Whether the first appellate court was justified in holding that an unregistered sale deed cannot be looked into for collateral purpose for establishing the possession on the basis of the adverse possession in the -5- NC: 2023:KHC-K:8018 RSA No. 7375 of 2011 present facts and circumstances of this case?"
5. Sri Ameet Kumar Deshpande, learned Senior Counsel and Sri Shivanand Patil, learned counsel and Smt. Maya T.R., learned High Court Government Pleader, have been heard on the substantial question of law framed by this court on 22.01.2021 and the additional substantial question of law framed on 28.08.2023.
6. Brief facts of the case are that:
The suit is for declaration in respect of land bearing Sy.No.52, measuring 01 acre 38 guntas and perpetual injunction. It is the contention of the plaintiff, that defendant No.1 had sold land Sy.No.52 to an extent of 04 acres 32 guntas in favour of the plaintiff through a registered sale deed dated 13.06.1979 and land measuring 01 acre 38 guntas of the said survey number has been again sold to the plaintiff by defendant No.1 on 21.12.1979. It is the contention of the plaintiff, that the plaintiff is in possession and enjoyment of the suit -6- NC: 2023:KHC-K:8018 RSA No. 7375 of 2011 schedule property to the extent of 01 acre 38 guntas continuously without interference and adversely to the knowledge of the defendant No.1 as owner and he has perfected his title by way of adverse possession. It is further averred that the sale deed executed on 21.12.1979 in respect of the suit schedule property to the extent of 01 acre 38 guntas was not registered, however, the plaintiff has been in possession as owner of the suit schedule property.
7. Pursuant to the suit summons by the trial Court, the defendants appeared. Defendant No.1 filed his written statement, inter alia, contending and admitting that, in Sy.No.52, an extent of 04 acres 32 guntas was earlier sold by defendant No.1 to the plaintiff on 13.06.1979. However, denied that the extent of an area measuring 01 acre 38 guntas in the said survey number was not executed by any document as contended by the plaintiff on 21.12.1979 and denied that the plaintiff is in possession of the suit schedule property adversely to the -7- NC: 2023:KHC-K:8018 RSA No. 7375 of 2011 knowledge of the defendant No.1 and that the plaintiff has perfected his title by way of adverse possession. Defendant No.1 has specifically denied about the execution of the alleged unregistered sale deed dated 21.12.1979 in favour of the plaintiff.
8. The trial Court on the basis of the pleadings framed the following:
"ISSUES
1. Whether the plaintiff proves that the defendant No.1 has handed over the possession of suit property under un- registered sale deed on 21.12.1979?
2. Whether the plaintiff proves that he has perfected the title over the suit property by adverse possession?
3. Whether the plaintiff proves illegal interference by defendant No.1?
4. Whether the plaintiff is entitled to reliefs sought?"
9. In order to substantiate his claim, the plaintiff examined himself as PW.1 and got marked documents at -8- NC: 2023:KHC-K:8018 RSA No. 7375 of 2011 Exs.P-1 to P-3 and two witnesses as PWs.2 and 3. On the other hand, defendant No.1 examined himself as DW.1 and got marked documents at Exs.D-1 to D19.
10. The trial Court based on the pleadings, oral and documentary evidence, has assigned findings that the plaintiff has proved that defendant No.1 has handed over possession of the suit schedule property under un- registered sale deed dated 21.12.1979 and the plaintiff has perfected his title by way of adverse possession, while holding so, the reasons assigned by the trial Court is that, the plaintiff is in possession of the suit land since for last more than 20 years and has constructed a house and a godown, which shows that the plaintiff is in possession of the suit schedule property on the basis of an un-registered sale deed dated 21.12.1979 and has perfected title over the suit schedule property by way of adverse possession. -9-
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11. Aggrieved by the granting of decree for declaration and injunction, the defendant No.1 preferred appeal before the first appellate Court.
12. The first appellate Court reconsidered and re- appreciated the evidence placed before it independently and has arrived at a conclusion that the findings recorded by the trial Court that the plaintiff has perfected his title by way of adverse possession was not justified and reversed the findings recorded by the trial Court assigning reasons that the plaintiff has not pleaded the date on which his possession becomes hostile to the knowledge of the true owner. Aggrieved by dismissal of the suit, the present appeal is by legal representatives of plaintiff.
13. Learned Senior Counsel appearing for the appellant would contend that the first appellate court has committed a grave error in holding that Ex.P-1 is an insufficient stamped document and cannot be relied even for collateral purpose. Learned Senior Counsel would contend that the unregistered sale deed dated 21.12.1979
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NC: 2023:KHC-K:8018 RSA No. 7375 of 2011 at Ex.P-1 can be looked into and is admissible in evidence for collateral purpose and Ex.P-1 can be looked into to establish the actual possession of the plaintiff - appellant herein over the suit schedule property. Learned Senior Counsel would contend that the first appellate court has misled itself to the evidence of PWs.2 and 3, who have categorically stated about the attesting of the unregistered sale deed and the possession of the property having been delivered to the plaintiff. The evidence, according to the learned Senior Counsel, corroborates the actual possession of the suit schedule property since 21.12.1979 and the same is continued and the possession of the plaintiff is continuously and openly adverse to defendant No.1, claiming as owner for more than the prescribed period.
14. Learned Senior Counsel in support of his contentions, has relied upon the following decisions:
(i) N.Varda Pillai vs. Jeevarathnammal1.
(ii) Lakshmibai vs. Thoreppa2 1 AIR 1919 Privy Council 44
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(iii) Alta Baksh vs. Mohd. Hussain3
15. Per contra, learned counsel appearing for the respondent would justify the judgment and decree of the appellate court and contend that the plaintiff's claim is based on an un-registered sale deed dated 21.12.1979 and the plaintiff set up a plea of title and also a plea by way of adverse possession, which are contradictory pleas, until the plea of title is renounced, only thereafter the question of second plea of adverse possession would arise. Learned counsel would contend that inducting and entering are two different terms and according to the learned counsel if the party contends that he has been inducted, then it has to be pleaded from what means and if it has been entered, then the question of adverse possession would arise.
2 AIR 1982 Karnataka 248 3 1996(2) Kant.LJ 336
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NC: 2023:KHC-K:8018 RSA No. 7375 of 2011
16. Learned counsel for the respondents has drawn the attention of this Court to para Nos.2 and 3 of the plaint to contend that the plaintiff has specifically averred in his plaint that defendant No.1 has sold 01 acre 38 guntas by way of an unregistered sale deed, which would mean that defendant No.1 has inducted the plaintiff and thus the very ingredient of plea of adverse possession is not satisfied. Learned counsel would contend that if permission is accorded to the plaintiff, any possession for any length of time would not become adverse to the actual owner and that the plaintiff has not been able to demonstrate from his pleadings and evidence as to when the possession becomes hostile, but on the other hand, the pleadings of the plaintiff and the evidence thereto reflects that the plaintiff has been inducted by the defendant No.1 and as such, the hostility which is the necessary ingredient to prove the plea of adverse possession is being absent in the present facts.
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17. In support of his contention, learned counsel has relied upon the following decisions:
(i) Narasamma & Ors. vs. A. Krishnappa (Dead) through LRs.4
(ii) Karnataka Board of Wakf vs. Government of India & others5.
(iii) Avinash Kumar Chauhan vs. Vijay Krishna Mishra6.
(iv) Govt. of Kerala & Anr. vs. Joseph & Ors7.
(v) Venugopal & Ors. Vs. M. Rajendra8.
18. Learned counsel placing reliance of the aforesaid decisions would contend that the substantial questions law framed by this Court needs to be answered against the appellant.
4 AIR 2020 SC 4178 5 (2004)10 SCC 779 6 AIR 2009 SC 1489 7 2023 SCC Online SC 961 8 AIR 2023 KAR 106
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NC: 2023:KHC-K:8018 RSA No. 7375 of 2011
19. This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the material on record.
20. The facts undisputed are that the plaintiff pleads title by way of an unregistered sale deed dated 21.12.1979. The specific averments made by the plaintiff are evident from the plaint at para Nos.2 to 5, which reads as under:
"2. That the original owner of the suit property was one Narasayya i.e. defendant no.1 and this defendant no.1 has sold the land sy.no.52 to the extent of 4A-32 Gts. in favour of plaintiff through a registered sale deed on 13.6.1979. The photocopy of sale deed is filed herewith for kind perusal of the Hon'ble court.
3. That, after purchase of above land by the plaintiff, the plaintiff was and is in peaceful possession and cultivation of same.
3. That the defendant no.1 for his family and legal necessities, sold again an 01A-38 Gts. on 21.12.1979 out of the remaining area of the defendant in the said land sy.no.52, and
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NC: 2023:KHC-K:8018 RSA No. 7375 of 2011 executed a sale deed on 21.12.1979 and from that date, the plaintiff is in possession and enjoyment of the suit land continuously without interference of any body "adversely"
to the knowledge of the defendant, as a owner. As such, the plaintiff has also perfected his title by adverse possession.
4. That the defendant no.1 from the date of execution of above referred sale deed at no point of time he has made any interference nor interfering in the suit property knowingly fully well and his family members. So, the suit property was and is in possession and enjoyment of the plaintiff from 21.12.1979 till today.
5. That the defendant no.1 in collusion with some mis- chief mongers of the village for the first time they moved in first application in the year 2003 before the Tahsildar, Raichur i.e., defendant no.4 claiming right ownership of the property."
(Emphasis supplied)
21. A careful reading of the aforesaid relevant paras of the plaint would evidence that the plaintiff claims his
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NC: 2023:KHC-K:8018 RSA No. 7375 of 2011 title of the suit schedule property from 21.12.1979 and also claims possession from 21.12.1979 continuously without interference of anybody adversely to the knowledge of the defendant, as owner. His claim is specifically a plea of title which according to him is an unregistered sale deed and another plea which has been taken from the very document is the plea of adverse possession. The Apex Court in the case of Karnataka Board of Wakf stated supra has considered the essential ingredients that are necessary for establishing the plea of adverse possession and also held that the plea based on title of the suit schedule property and plea of adverse possession are mutually, exclusive, inconsistent and the latter does not begin to operate until the former is renounced and at para No.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
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NC: 2023:KHC-K:8018 RSA No. 7375 of 2011 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 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
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NC: 2023:KHC-K:8018 RSA No. 7375 of 2011 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) 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
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NC: 2023:KHC-K:8018 RSA No. 7375 of 2011 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 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."
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22. The Apex Court in the case of Narasamma stated supra has taken a similar view that when the plaintiff is claiming title over the property must specifically plead when such plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property. Having come into possession under the un-registered sale deed, he must disclaim his right thereunder and plead and prove his assertion of his independent, hostile, adverse to the knowledge of the transferor which is conspicuously absent in the present case. Admittedly, the plaintiff pleads his title and possession by way of adverse possession, which are contradictory to each other. The Apex Court in the case of Narasamma has held at para No.16, 29, 31, 32, 33, 36 and 37, which read as under:
" 16. That brought the High Court to the main aspect which resulted in the appeal being allowed i.e. the failure of the appellants herein on their plea of adverse possession. Once again, there is an elaborate discussion on the various judicial pronouncements of this Court
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NC: 2023:KHC-K:8018 RSA No. 7375 of 2011 on the plea of adverse possession, emphasizing that the success of this plea requires the person claiming the same to prove that he is in possession and 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 dispossession of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period."
29. We may also note that on the one hand, the appellants herein have sought to take a plea of bar of limitation vis-à-vis the original defendant claiming that possession came to them in 1976, with the suit being filed in 1989. Yet at the same time, it is claimed that the wife had title on the basis of these very documents. The claim of title from 1976 and the plea of adverse possession from 1976 cannot simultaneously hold. On the failure to establish the plea of title, it was necessary to prove as to from which date did the possession of the wife of the defendant amount to a hostile possession in a peaceful, open and continuous manner. We fail to appreciate how, on the one
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NC: 2023:KHC-K:8018 RSA No. 7375 of 2011 hand the appellants claimed that the wife of the original defendant, Appellant 1 herein, had title to the property in 1976 but on their failure to establish title, in the alternative, the plea of adverse possession should be recognised from the very date.
31. The question which confronts us is not the aforesaid, but whether simultaneously a plea can be taken of title and adverse possession i.e. whether it would amount to taking contradictory pleas. In this behalf, we may refer to the four judgments cited by the learned counsel for the respondent herein, which succinctly set forth the legal position.
32. In Karnataka Board of Wakf case, it has been clearly set out that a plaintiff filing a title over the property must specifically plead it. When such a plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property. In that context, it was observed in para 12 that"... The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced...."
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33. The aforesaid judgment in turn relied upon the judgment in Mohan Lal (Deceased) Thr. LRs, which observed in para 4 as under:
"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."
36. The possession has to be in public and to the knowledge of the true owner as adverse,
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NC: 2023:KHC-K:8018 RSA No. 7375 of 2011 and this is necessary as a plea of adverse possession seeks to defeat the rights of the true owner. Thus, the law would not be readily accepting of such a case unless a clear and cogent basis has been made out.
37. We may also note another judicial pronouncement in Ram Nagina Rai v. Deo Kumar Rai (Deceased) by LRs and anr. dealing with a similar factual matrix i.e. where there is permissive possession given by the owner and the defendant claims that the same had become adverse. It was held that it has to be specifically pleaded and proved as to when possession becomes adverse in order for the real owner to lose title 12 years hence from that time."
23. Thus, the party who pleads adverse possession in order to substantiate the plea of adverse possession, the three classic requirements which need to co-exist were again emphasized in Narsamma's case, as under:
(a) Possession must be open, clear, continuous and hostile to the claim or possession of the other party.
(b) The essential ingredients must co-exist:
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i) Nec vi i.e., adequate in continuity
(ii) Nec clam i.e., adequate in publicity
(iii) Nec precario meaning that the adverse to the competitor in denial of title and his knowledge.
24. The Apex Court in the recent decision in the case of Government of Kerala and Anr. 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 publicity; and nec precario, i.e., adverse to a competitor, in denial of title and knowledge;
(a) In Radhamoni Debi v. Collector of Khulna8, 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
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NC: 2023:KHC-K:8018 RSA No. 7375 of 2011 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:--
"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
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NC: 2023:KHC-K:8018 RSA No. 7375 of 2011 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 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
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NC: 2023:KHC-K:8018 RSA No. 7375 of 2011 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 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. 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
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NC: 2023:KHC-K:8018 RSA No. 7375 of 2011 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) -
"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,
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NC: 2023:KHC-K:8018 RSA No. 7375 of 2011 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 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
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NC: 2023:KHC-K:8018 RSA No. 7375 of 2011 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 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
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NC: 2023:KHC-K:8018 RSA No. 7375 of 2011 this 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 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."
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NC: 2023:KHC-K:8018 RSA No. 7375 of 2011
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.
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
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NC: 2023:KHC-K:8018 RSA No. 7375 of 2011 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. [State of Haryana v. Mukesh Kumar (two-Judge Bench)].
25. The Apex Court held that the claim of independent title and adverse possession at the same time amounts to contradictory plea and the plea of independent title is inconsistent with the plea of adverse possession and having come into possession under an unregistered sale deed, 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
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NC: 2023:KHC-K:8018 RSA No. 7375 of 2011 period of 12 years, i.e., upto completing the period of his title by prescription, nec vi, necl clam, enc precario.
26. The question necessarily to be considered is:
"Whether simultaneously a plea can be taken of title and adverse possession i.e., whether it would amount to be taking a contradictory view?"
27. The Apex Court, in the case of Narasamma, Karnataka Board of Wakf and Govt. of Kerala supra has categorically held that the claim of title and plea of adverse possession cannot co-exist and the legal position stands evolved holding that the plea of title and adverse possession simultaneously from the same date cannot be acceptable and thereby the main ingredients which are essential to establish the plea of adverse possession is the hostility to the true owner. The plaintiff filing a title suit should be very clear about the origin of the title over the property, he must either specifically contend that he is the owner of the suit property or whenever a plea of adverse possession is projected, inherent in the plea is that
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NC: 2023:KHC-K:8018 RSA No. 7375 of 2011 someone else is the owner of the property. Thus, the pleas on title and adverse possession are mutually inconsistent and latter does not begin to operate until the former is renounced as held by the Karnataka Board of Wakf stated supra.
28. The other contention of the plaintiff - appellant is that the document Ex.P-1, the unregistered sale deed dated 21.12.1979 can be looked into for the collateral purposes. The Apex Court in the case of Avinash Chauhan stated supra has held in para No.19, 20, 21, 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
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NC: 2023:KHC-K:8018 RSA No. 7375 of 2011 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 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:8018 RSA No. 7375 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 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
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NC: 2023:KHC-K:8018 RSA No. 7375 of 2011 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 :
"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
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NC: 2023:KHC-K:8018 RSA No. 7375 of 2011 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 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 :
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NC: 2023:KHC-K:8018 RSA No. 7375 of 2011 "5. Section 35 of the Stamp Act mandates that an instrument chargeable with duty should be 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 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].
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NC: 2023:KHC-K:8018 RSA No. 7375 of 2011
29. The Apex Court has held that an unregistered unstamped sale deed cannot be looked into for collateral purposes and the Apex Court has given its deliberate consideration to Section 35 of the Stamp Act and the effect of non-registration under Section 49 and has given a deliberate consideration by holding that under law, when a sale deed is not properly stamped and registered it will not convey title to the vendee. The said document cannot be looked into for collateral purpose. The Apex Court held 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 should be duly stamped or should comply with the requirements of Section 35 of the Stamp Act, and if not stamped, the document not be received in evidence even for collateral purposes unless it is duly stamped or duty and penalty are paid under Section 35 of the Stamp Act.
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NC: 2023:KHC-K:8018 RSA No. 7375 of 2011
30. The first appellate Court was justified in holding that the plaintiff has not perfected his title by way of adverse possession. Earlier, the possession was that the plaintiff was not entitled to file suit seeking plea of on adverse possession, much water has flown down the lane in view of the Apex Court in the case of Ravindra Kaur Grewal and Ors. Vs. Manjeet Kaur and Ors. laying down a proposition that the plaintiff can maintain a suit seeking plea of adverse possession and the said proposition is no more an res integra that a plea of adverse possession can be used as a sword and not only as a shield
31. The judgment relied by the learned Senior Counsel for the appellant in the Privy Council, the said proposition also does not come to the rescue of the plaintiff - appellant. The first appellate court has not fell in error to hold that the plaintiff has not proved that he has perfected his title by way of adverse possession and this Court is of the considered view that in the absence of the
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NC: 2023:KHC-K:8018 RSA No. 7375 of 2011 possession having become hostile to the true owner the plea of adverse possession is not established. It is well settled that one cannot claim title, by way of unregistered sale deed and also claim adverse possession, by way of possession and enjoyment of the property over the statutory period. Even both the prayers are available, there must be doctrine of election to claim title, either by way of purchase under the un-registered sale deed or adverse possession, however, both the inconsistent pleas cannot go together. In the instant case, the plaintiff - appellant has claimed title only by way of an unregistered sale deed at Ex.P.1, such claim is not legally sustainable and similarly without specific pleadings and evidence, the plaintiff - appellant cannot claim title of the property by way of adverse possession, when according to the plaintiff, the property has been sold by defendant No.1 in favour of the plaintiff.
32. For the reasons stated supra, the substantial question of law is answered against the plaintiff - appellant
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NC: 2023:KHC-K:8018 RSA No. 7375 of 2011 holding that the first appellate Court was justified in reversing the judgment and decree of the trial Court and Ex.P-1 the unregistered sale deed cannot be looked into for collateral purposes for the reasons stated supra. Accordingly, this Court pass the following:
ORDER
(i) The regular second appeal filed by the plaintiff is hereby dismissed.
(ii) The judgment and decree of the first appellate Court dated 10.10.2011 in R.A.No.15/2010 is hereby confirmed.
(iii) No order as to costs.
Sd/-
JUDGE BL List No.: 1 Sl No.: 45