Karnataka High Court
Mallappa S/O Iieergapa vs Beerappa on 19 September, 2023
-1-
NC: 2023:KHC-K:7497
RSA No.2031 of 2005
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.2031 OF 2005 (DEC)
BETWEEN:
MALLAPPA
S/O HEERGAPPA
SINCE DECEASED BY LRS
HANMANTHA
S/O MALLAPPA
SINCE DECEASED BY LRS
1. TIPAWWA
Digitally signed
W/O HANMANTHA
by
LUCYGRACE AGED ABOUT 45 YEARS
Location: HIGH
COURT OF
KARNATAKA
2. RAJKUMAR
S/O HANUMANTHA
AGED ABOUT 24 YEARS
3. SHIVAKUMAR
S/O HANMANTHA
AGED ABOUT 23 YEARS
-2-
NC: 2023:KHC-K:7497
RSA No.2031 of 2005
4. GEETA D/O HANMANTHA
AGED ABOUT 26 YEARS
5. SAVITA D/O HANMANTHA
AGED ABOUT 25 YEARS
ALL ARE R/O HIRAPUR
TQ. GULBARGA-585 103
...APPELLANTS
(BY SRI R.S. SIDHAPURKAR, ADVOCATE)
AND:
1. KAMALA BAI
W/O BANDAPPA
AGED ABOUT 50 YEARS
2. SHANTAPPA
S/O BEERAPPA
SINCE DECEASED BY LRS
2(A) SABAWWA
W/O LATE SRI SHANTAPPA
AGED ABOUT 68 YEARS
OCC: HOUSEWIFE
2(B) CHANDRAKANTH
S/O LATE SHANTAPPA
AGED ABOUT 46 YEARS
OCC: KSRTC DRIVER
2(C) SURYAKANTH
S/O LATE SHANTAPPA
-3-
NC: 2023:KHC-K:7497
RSA No.2031 of 2005
AGED ABOUT 44 YEARS
OCC: AUTO DRIVER
2(D) RAMACHANDRA
S/O LATE SHANTAPPA
AGED ABOUT 41 YEARS
OCC: BORWELL WORK
2(E) LAXMIKANTH
S/O LATE SHANTAPPA
AGED ABOUT 39 YEARS
OCC: AUTO DRIVER
2(F) RAJKUMAR
S/O LATE SHANTAPPA
AGED ABOUT 36 YEARS
OCC:PRIVATE WORK
ALL ARE R/O PUJARI GALLI
VILLAGE HIRAPUR
KALABURAGI
3. SHIVAPUTRAPPA
S/O BEERAPPA
AGE: 52 YEARS
BASAPPA
S/O BEERAPPA
SINCE DECEASED BY HIS LRS
4. BHARATBAI
W/O BASAPPA
AGED ABOUT 40 YEARS
-4-
NC: 2023:KHC-K:7497
RSA No.2031 of 2005
5. NAGARAJ @ NAGENDRA
S/O BASSAPPA
SINCE DECEASED BY LRS
5(A) ANSU BAI
W/O LATE NAGRAJ
AGED ABOUT 28 YEARS
5(B) AISHWARYA
D/O LATE NAGRAJ
AGED ABOUT 6 YEARS
5(C) BASAVARAJ
S/O LATE NAGARAJ
AGED ABOUT 4 YEARS
5(D) SOUNDARYA
D/O LATE NAGRAJ
AGED ABOUT 2 YEARS
R5(B) TO 5(D) ARE MINORS UNDER THE
GUARDIANSHIP OF THEIR MOTHER R5(A)
6. ANNARAYA
S/O BASSAPPA
AGED ABOUT 15 YEARS
7. KAVITA
D/O BASSAPPA
AGED ABOUT 17 YEARS
8. RUKKAWWA
D/O BASSAPPA
-5-
NC: 2023:KHC-K:7497
RSA No.2031 of 2005
AGED ABOUT 14 YEARS
(LRS NO.5 TO 8 ARE MINORS
REPRESENTED BY THEIR NATURAL
MOTHER L.R.NO.4)
ALL RESIDING AT HIRAPUR
TQ: GULBARGA- 585 103
9. SUBHASH
S/O BEERAPPA
AGE ABOUT 45 YEARS
R/O: HIRAPUR
TQ: GULBARGA
SHARNAMMA
W/O BEERAPPA
SINCE DEAD
AKKAWWA
W/O MALLAPPA
SINCE DECEASED
NAGAPPA
S/O HEERGAPPA GOLA
SINCE DECEASED BY HIS LRS
10. AMBAWWA
W/O NAGAPPA
SINCE DECEASED BY LRS
10(A) MALLIKARJUN
S/O LATE BHIMASHANKAR POOJARI
AGED ABOUT 32 YEARS
OCC: AGRICULTURE
-6-
NC: 2023:KHC-K:7497
RSA No.2031 of 2005
10(B) SHIVANAND
S/O LATE BHIMASHANKAR POOJARI
AGED ABOUT 30 YEARS
OCC: AGRICULTURE
10(C) HANMANTHA
S/O BHIMASHANKAR POOJARI
AGED ABOUT 25 YEARS
OCC: AGRICULTURE
ALL ARE R/O LAXMI NAGAR
(KUMBAR DODDI) HIRAPUR VILLAGE
TQ AND DIST: KALABURAGI
11. BHIMASHANKAR
S/O NAGAPPA GOLA
AGED ABOUT 45 YEARS
12. SHARNAPPA
S/O HEERAGAPPA GOLA
DEAD BY LRS
12(A) SMT. MALKAMMA
W/O SHARANAPPA
AGED ABOUT 70 YEARS
OCC: HOUSEHOLD
R/O HEERAPUR VILLAGE, H.NO.11-227/H
PUJARI GALLI
TQ AND DIST: KALABURAGI-585103
13. RUKKANNA
S/O HEERAGAPPA
AGE ABOUT 52 YEARS
-7-
NC: 2023:KHC-K:7497
RSA No.2031 of 2005
14. CHANDRAKANTH
S/O SHIVARAYA
AGED ABOUT 35 YEARS
ALL ARE RESIDENTS OF HIRAPUR
TQ:GULBARGA- 585103
...RESPONDENTS
(V/O DATED 04.09.2019, APPEAL AGAINST
R-1 IS DISMISSED AS ABATED;
SRI SHREEVATSA, SENIOR COUNSEL
FOR SRI A.M. NAGRAL, ADVOCATE FOR
R-2(A) TO (F), 3, 4 AND 9;
NOTICE TO R-5(A) SERVED;
R-5(B) TO (D) ARE MINORS U/G R-5(A);
R-6 AND 7 ARE MINORS U/G OF R-4;
SRI SUBHASH MALLAPUR ADVOCATE FOR R-8
AND 10(A) TO 10(C);
V/O DATED 17.12.2007, R-11 IS DELETED;
V/O DT. 20.07.2007, SERVICE OF NOTICE TO R-13 AND
14 ARE HELD SUFFICIENT;
V/O DATED 06.02.2023, NOTICE TO PROPOSED R-12(A)
IS HELD SUFFICIENT)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 16.07.2005 PAS0SED IN R.A.NO.389/2004 BY THE
PRINCIPAL DISTRICT JUDGE, GULBARGA; CONSEQUENTLY
ALLOW THE JUDGMENT AND DECREE DATED 24.01.1998
OF THE ORIGINAL SUIT O.S.NO.399/1989 IN THE COURT
OF THE PRINCIPAL CITY CIVIL JUDGE(JR.DN), GULBARGA
OF THE APPELLANT WITH COSTS.
-8-
NC: 2023:KHC-K:7497
RSA No.2031 of 2005
THIS APPEAL COMING ON FOR DICTATING
JUDGMENT, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The present regular second appeal by the plaintiffs assailing the judgment and decree dated 16.07.2005 in RA.No.389/2004 on the file of the Principal District Judge, Kalaburagi, reversing the judgment and decree dated 24.01.1998 in O.S.No.399/1989 on the file of the Principal City Civil Judge (Jr.Dn.) at Kalaburagi, whereby the suit of the plaintiffs seeking declaration and possession was dismissed by the first appellate Court.
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 05.02.2008, has framed the following substantial questions of law:
(i) Whether the lower appellate Court was justified in holding that the defendants have -9- NC: 2023:KHC-K:7497 RSA No.2031 of 2005 perfected their title by adverse possession when they did not admit the title of the plaintiffs and set up a title by themselves?
(ii) Whether the finding by the lower appellate Court that the suit is barred by time is correct?
4. Sri R.S. Sidhapurkar, learned counsel for the appellants and Sri K.Shreevatsa learned senior counsel for respondent Nos.2 to 4 and 9 have been heard on the substantial questions of law framed by this Court.
5. Suit property is the land bearing Sy.No.51/2 measuring 21 acres 3 guntas. The case of the plaintiffs is that the father of plaintiff Nos.1 to 4, namely, Heergappa was allotted the suit schedule property. It is the case of the plaintiffs that plaintiff No.1 being the elder member of the family was in need of money and borrowed a sum of Rs.1,000/- from mother of defendant No.1 and since plaintiff No.1 could not pay the loan amount as and when demanded by the mother of defendant No.1, the suit land was given to her possession and to enjoy the produce of the suit land for a period of ten years and on her death,
- 10 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 defendant No.1 has began to cultivate the suit land with the permission of plaintiff No.1 with an understanding to cultivate for a specific period. It is contended that the stipulated period had expired one year back i.e., in the year 1981, defendant No.1 without there being any right, title or interest over the suit land has got his name entered in the revenue records claiming to be the owner of the suit land. The plaintiffs contended that the entry made in the revenue records is behind the back of the plaintiffs and though the date of mortgage has expired in the year 1980 and the denial by defendant No.1 in the year 1981, the cause of action arose and hence, the suit for declaration and possession in respect of the agricultural property.
6. Defendant No.1 resisted the claim of the plaintiffs, inter alia, denying the averments and contending that plaintiff No.1 had obtained loan of Rs.475/- from one Narayan Rao Madanshetty and a charge had been created over the land and deed was executed in
- 11 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 favour of Narayan Rao Madanshetty by plaintiff No.1. It is contended by the defendants that, since plaintiff No.1 could not repay the loan amount to Narayan Rao Madanshetty, the said Narayan Rao Madanshetty was pressing plaintiff No.1 to clear the said dues. Plaintiff No.1 in order to clear the family debt and for legal necessity had sold the suit land for consideration of Rs.950/- in favour of defendant No.1 by executing the document in his favour. Pursuant to the sale transaction, possession of the suit land was given by plaintiff No.1 to defendant No.1 on 30.12.1358 Fasli. It is the case of defendant No.1 that, since then, he is in possession of the suit land as owner under an unregistered sale deed dated 30.12.1358 Fasli. It is further pleaded by the said defendant that he is in possession of the suit land asserting himself as owner openly and without any obstructions from anybody, right from 30.12.1358 Fasli and his title has been perfected by way of adverse possession and the suit of the plaintiffs is barred by limitation.
- 12 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005
7. The trial Court on the basis of the pleadings, framed the following issues:
"1. Whether the plaintiffs prove that they are joint owners of land Sy No 51/2 measuring 21 acres 3 guntas which is known as Shekshetty Hola?
2. Whether the plaintiffs further prove that the defendant cultivating the suit land with permission of the plainuff-1 with a specific understanding and agreement in between the plaintiff No 1 and Bhagamma that the suit land should be restored back after the stipulated period which expired already one year back as alleged in para 7 of the plaint?
3. Whether the plaintiffs further prove that defendant mischievously without the transfer of title has got mutated his name in respect of the suit land by winning over the village Accountant and that the entries are incorrect and illegal as alleged in para 9 of the plaint?
4. Whether defendant proves that he has purchased the suit land for Rs.950/- on 13.12.1358 Fasli and as such he is in possession and enjoyment of the suit lands as owner as contended in para 11 of W.S?
- 13 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005
5. Whether defendant further proves that he has perfected his title by adverse possession as alleged in para 11 of the W.S.?
6. Whether the suit is barred by limitation?
7. Whether there is no cause of action for the suit?
8. Whether the court fee paid is not proper?
9. Whether the suit is not maintainable in the present form?
10. Are the plaintiffs entitled to a mesne profits claimed?
11. Is defendant entitled to compensatory costs claimed?"
8. The plaintiffs in order to substantiate their claim examined PWs.1 to 5 and got marked documents at Exs.P- 1 to P-6. On the other hand, defendant No.1 examined himself as D.W.1 and four other witnesses as D.Ws.2 to D.W.5 and got marked documents at Exs.D-1 to D-40. The trial Court on the basis of the pleadings, oral and documentary evidence held that:
- 14 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 i. the plaintiffs have proved that they are the joint owners of land bearing Sy.No.51/2 measuring 21 acres 3 guntas.
ii. the plaintiffs have proved that defendant No.1 is cultivating the suit land with permission of plaintiff No.1 with a specific understanding and agreement in between plaintiff No.1 and Bhagamma. iii. the plaintiffs have proved that defendant No.1 has got his name entered in the revenue records and without there being any legal entitlement. iv. the defendants have failed to prove that they have purchased the suit land for Rs.950/- on 30.12.1358 Fasli and thus, possession and enjoyment of the suit land as contended at paragraph No.11 of the written statement.
v. the defendants failed to prove that defendant No.1 has perfected his title by way of adverse possession as alleged in para No.11 of the written statement, and accordingly, by the judgment and decree, the Trial Court decreed the suit of the plaintiffs and also entitlement of mesne profit.
9. Being aggrieved by the judgment and decree of the trial Court, appeal was preferred by the defendants before the first Appellate Court. The first appellate Court
- 15 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 while re-appreciating the oral and documentary evidence, has given a finding that the unregistered sale deed though does not confer any title to the plaintiffs, the said unregistered sale deed can be looked into for collateral purpose and further recorded a finding that the possession of the defendants are in continuous and uninterrupted possession and set up a hostile title against the plaintiffs and thereby, allowed the appeal.
10. Learned counsel for the appellants would contend that the claim of title over the suit schedule property by way an unregistered sale deed Ex.D-37 and the plea of adverse possession from the very date are contrary and cannot go together. According to the learned counsel for the appellants, in order to establish the plea of adverse possession, the defendants have to specifically plead as to, from when the possession has become adverse to the knowledge of the plaintiffs and in the absence of the same, the first Appellate Court was not justified in holding that the defendants have placed
- 16 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 sufficient material to establish their plea of adverse possession. Learned counsel would contend that the substantial questions of law framed by this Court needs to be answered in favour of the appellants. In support of his contention, learned counsel has relied upon the following judgments:
i) Government of Kerala and another vs. Joseph and another1
ii) Sri Uttam Chand (D) Thr. Lrs. vs. Nathu Ram (D) Thr. Lrs and others2
iii) Ajit Kaur Alias Surjit Kaur vs. Darshan Singh (Dead) by L.Rs. and Others3
iv) Ram Nagina Rai and another vs. Deo Kumar Rai (Deceased) by L.Rs. and another4
v) Mallikarjunaiah vs. Nanjaiah and others5
vi) Bangalore Development Authority vs. N.Jayamma6
vii) Venugopal and others vs. M.Rajendra7
viii) Mallangouda vs. Basanagouda and others8 1 2023 SCC online SC 961 2 (2020)11 SCC 263 3 (2019)13 SCC 70 4 (2019)13 SCC 324 5 (2019)15 SCC 756 6 (2017)13 SCC 159 7 Manu/KA/4224/2022 : RSA No.2301/2017 8 2019(4) KCCR 3628
- 17 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005
11. Per contra, learned Senior counsel appearing for the respondents-defendants would justify the order of the first Appellate Court and contend that, the question that arises is, whether such possession of defendant on the basis of the document at Ex.D-37 and its translated copy at Ex.D.38 is operative in law and could be held to be adverse to the original plaintiff and would contend that the said issue is no more a res integra and the unregistered sale deed can be looked into for collateral purpose as the matter has been decided by this Court in several decisions, more particularly, in Venugopal Padayachi (Dead) Through Legal Representatives vs V. Pichaikaran (Dead) through Legal Representatives9 (Venugopal Padayachi) and the Co-ordinate Bench of this Court in the case of Alla Baksh vs. Mohd. Hussain10 and in the said circumstances, it is contended that the first appellate Court was perfectly right and justified in accepting the submissions advanced by the defendants and in dismissing 9 (2018) 10 SCC 548 10 1995 SCC OnLine Kar 347
- 18 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 the suit of the plaintiff and sought to contend that the substantial question of law need to be answered against the appellants.
12. This Court has carefully considered the rival contention urged by the learned counsel for the parties and the judgment and decree of the Courts below and the material placed before this Court has been carefully perused.
13. The plaintiffs' suit for declaration and possession wherein, the plaintiffs contended at para No.5 as under:
"After the death of the father of plaintiff No.1 his land devolved upon his 5 sons among them the second son Shivaraya died about 4 years back. Hence the plaintiffs Nos.1 to 5 are the joint owners of the suit land."
14. The defendants have taken a specific contention in their written statement at para No.11 and the same reads as under:
- 19 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 "11. It is most respectfully submitted that in the year 11. 14 1353 Fasli the plaintiff No.1 obtained loan of Rs.475/- from Narayan Rao Madanshetti.
Charge of the above said loan amount has been created over the land known as Shekshetti Hola. On 29.9.1353 Fasli the plaintiff No.1 had executed a deed in favour of said Narayan rao Madanashetti in this regard. Pltf. No.1's father signed the said deed as a token of his consent. Since beginning above said land was in the name of plaintiff No.1. It was never in the name of Hiragappa the father of plaintiff No.1, the plaintiff No.1 could not repay the loan amount to Narayan Rao Madanshetti within the stipulated period. Said Narayan Rao Madanshetti was pressing plaintiff-1 to clear of the above said dues. The plaintiff No.1, to clear of the family debt and for his family and legal necessity sold the above said land to the defendant on 13.12.1358 Fasli for consideration of Rs.950/- plaintiff No.1 executed a document in this regard in favour of defendant. In pursuance of above sale transaction possession of the above said land was given by plaintiff No.1 to defendant on 30.12.1358. Since then the defendant is in possession of suit land as owner. At the time of above sale-transactions the plaintiff No. 1 having discharged the debt of Narayan Rao Madanshetti got back the document from him. Thereafter he handed over the same to the defendant. Thus the defendant
- 20 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 came in possession of the document executed by plaintiff No.1 in favour Narayanrao Madanshetti in regard to the loan taken on the above said land from him, original deed dated: 29.9.1353 executed by plaintiff No.1 in favour of Narayan Rao Madanshetti and original sale deed dated: 30.12.1358 Fasli executed by plaintiff No.1 in favour of defendant are enclosed herewith. Sale-Deed dated: 30.12.1358 Fasli is an un Registered document. The defendant is entitled to use the same for collateral purpose to show the nature of his possession over the suit land. It is submitted that the defendant is in possession of suit land asserting himself as owner openly and without any obstructions from anybody, right from 30.12.1358 Fasli i.e. since last more than 33 years on the basis of Sale- Deed dated: 30.12.1358 Fasli adversely to the knowledge of plaintiff. Thus the deft. has perfected his title over the suit property by way of adverse possession. Hence suit of the plaintiff for possession is barred by limitations. "
(emphasis supplied)
15. Perusal of the plaint averments and the written statement would evidence that defendant No.1 was given the suit property for cultivation with the permission of plaintiff No.1 which is not controverted by the defendants
- 21 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 in the written statement. On the other hand, defendants tried to set up a plea that the suit property was held by the defendants pursuant to the unregistered sale deed dated 30.12.1358 Fasli and the defendants also set up a plea and are in possession of the suit land asserting themselves as the owners of the suit schedule property, and in the latter part of the written statement, the defendants have taken a plea that they have perfected their title over the suit schedule property by way of adverse possession right from 30.12.1358 Fasli under the unregistered sale deed. The contention of the defendants is that the said unregistered sale deed can be looked into for collateral purpose to show the nature of possession over the suit schedule property. The said unregistered sale deed which was sought to be marked in the evidence of the defendants was objected by the plaintiffs at the time of marking, since it is an unregistered document.
16. The defendants emphatically relies on the unregistered sale deed at Ex.D-37 to contend that they
- 22 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 are the owners in possession of the suit schedule property and at the same time relies on the very document to establish their plea of adverse possession. The defendants contend that, insufficient stamp or unstamped document can be relied for collateral purpose for determining the nature of the property. The Apex Court in the case of Avinash Kumar Chauhan vs. Vijay Krishna Mishra11 distinguished the judgment of the Apex Court in case of Bondar Singh and Others vs. Nihal Singh and Others12, which is relied upon by the learned counsel for the respondents-defendants and at paragraph Nos.17, 22 and 25 held as under:
"17. Parliament has, in Section 35 of the Act, advisedly used the words "for any purpose whatsoever". Thus, the purpose for which a document is sought to be admitted in evidence or the extent thereof would not be a relevant factor for not invoking the aforementioned provisions.
xxx xxx xxx 11 2009 (2) SCC 532 12 (2003) 4 SCC 161 - 23 - NC: 2023:KHC-K:7497 RSA No.2031 of 2005
22. We have noticed heretobefore that Section 33 of the Act casts a statutory obligation on all the authorities to impound a document. The court being an authority to receive a document in evidence is bound to give effect thereto. The unregistered deed of sale was an instrument which required payment of the stamp duty applicable to a deed of conveyance. Adequate stamp duty admittedly was not paid. The court, therefore, was empowered to pass an order in terms of Section 35 of the Act.
xxx xxx xxx
25. 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."
17. The Apex Court has held that an unregistered deed of sale was an instrument which required payment of the stamp duty applicable to a deed of conveyance. The
- 24 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 Court being an authority to receive a document in evidence is bound to give effect thereto. The Apex Court taking into consideration Sections 33 and 35 of the Stamp Act, held that there casts a statutory obligation on all the authorities to impound a document. In this case, by reason of the statutory interdict, no transfer is permissible at all and even the transfer of possession is not permissible. The Apex Court further 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 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, it 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 (Gabriel case). Thus, the contention of the respondents- defendants that the unregistered sale deed can be looked into for collateral purpose is unacceptable for the reasons stated supra.
- 25 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005
18. The claim of the defendants is in two folds:
One on the basis of title and the other on the basis of the adverse possession. In order to establish the adverse possession, the principles and essential ingredients that are necessary is that:
(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
(i) nec vi i.e., adequate in continuity
(ii) nec clam i.e., adequate in publicity
(iii) nec precario meaning that the adverse possession is proved only when possession is peaceful, open, continuous and hostile, and mere possession however long, cannot be deemed to be adverse possession merely on the basis of denial of another's title over the property for that would be violative of the basic rights of the actual owner.
19. The concept of adverse possession in India is more than a century old concept of law, which is primarily
- 26 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 based on three fundamental principles. Firstly, competing rights of ownership between the actual owner and the person taking care of the land. Right of a person taking care of the land and making highest and best use of the land will prevail over the actual title holder of the land, who does not take care of the land. Secondly, the title of the land should not be kept in abeyance for a long period of time i.e., a situation should not arise in which the title holder of the land is not own. Thirdly, it is presumed that the actual title holder has abandoned his possessory rights despite knowing that some other person is claiming hostile over his land, but he chooses to keep quiet not taking any action against the person as provided under the law. The Co-ordinate Bench of this Court in the case of Venugopal stated supra at paragraph Nos.21 and 22 held as under:
"21. The decision of the Privy Council though not binding on the Supreme Court but still the said decision was upheld by three Judges of the Hon'ble Supreme Court in the case of Nair Service Society vs. K.C. Alexander MANU/SC/0144/1968: AIR 1968 SC 1165 The Hon'ble Apex Court in the case of
- 27 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 P.T.Munichikkanna Reddy and Others vs. Revamma and Others MANU/SC/7325/2007: (2007) 6 SCC 59 further laid down certain guidelines regarding the enquiry to be held by the Courts while deciding the plea of adverse possession. The Hon'ble Apex Court has held that;
"Therefore, to assess a claim of adverse possession, two-pronged enquiry is required;
1. Application of limitation provision thereby jurisprudentially "willful neglect"
element on part of the owner
established. Successful application in
this regard distances the title of the land from the paper-owner.
2. Specific Positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distances from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property."
22. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Whenever
- 28 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property therefore, the pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. In Dagadabai (Dead) by Lrs vs. Abbas @ Gulab Rustum Pinjari MANU/SC/0438/2017: (2017) 13 SCC 705, the Hon'ble Apex Court held that a person who acquires title by adverse possession, has to first admit the ownership of the true owner over the property before claiming ownership on the strength of adverse possession. Defendants having setup adverse title have not chosen to lead rebuttal evidence. In that event, plaintiffs are bound to succeed and is entitled to recover possession."
20. The Apex Court, in the case of Karnataka Board of Wakf vs. Government of India and others13, has held that the principle of adverse possession is well settled and 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 be adequate in continuity, in publicity and in extent to show that their possession is adverse to the 13 (2004) 10 SCC 779
- 29 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 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. In the present case, the plea of adverse possession is lacking in all the aspects, more particularly, when the defendant claims title over the property and adverse possession at the same point of time.
21. The defendants have setup their claim on the basis of an unregistered sale deed to claim title as well as plea of adverse possession. On the other hand, the case of the plaintiffs is that the nature of possession of defendants was only permissive even assuming that it was on the basis of unregistered sale deed. In this regard, it is also relevant to note the decision of the Apex Court in the case of Narasamma and others vs. A. Krishnappa (Dead) through Legal Representatives14 and at paragraph No.33, the Apex Court has held as under: 14
(2020) 15 SCC 218
- 30 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 "33. 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."
(emphasis supplied)
22. The Apex Court has held that the claim of independent title and adverse possession simultaneously on the same date cannot be recognized, it would be like taking contradictory plea and when a plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property and thus, the pleas of title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.
23. The Apex Court in the recent decision in the case of Government of Kerala as stated supra at para
- 31 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 No.21 has laid down the essential principles governing adverse possession which reads as under:
"21. 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:
21.1 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 7 [1907] A.C. 73 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
- 32 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 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).
- 33 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005
(e) This Court in a recent case of M Siddiq (D) through LRs v. Mahant Suresh Das & Ors. (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 clam 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."
21.2 The person claiming adverse possession must show clear and cogent evidence substantiate such claim;
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
- 34 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 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..." Reference may also be made to M. Siddiq (supra).
21.3 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 and Anr. (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 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
- 35 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 for a period of more than 12 years is not enough."
Reference may also be made to Arvind Kumar (supra); Mallikarjunaiah v. Nanjaiah (two-Judge Bench); Uttam Chand (supra).
21.4 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 land would not ripen
- 36 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 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 and Others 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) -
- 37 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 "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) Referring to the above judgement Subha Rao (supra) this Court has reiterated the cardinality of the presence of Animus possidendi in a case concerning adverse possession in Brijesh Kumar & Anr. v. Shardabai (dead) by LRs. (two-Judge Bench).
21.5 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; 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
- 38 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 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..."
The position in Ravinder Kaur (supra) was followed in Narasamma & Ors. v. A. Krishnappa (Dead) Through LRs. (three-Judge Bench).
21.6 Mere passing of an ejectment order does not cause brake in possession neither causes his dispossession;
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."
21.7 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.
- 39 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 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."
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."
21.8 A plea of adverse possession must be pleaded with proper particulars, such as, when the
- 40 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 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 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..."
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..."
Mandir Sri Laxman Sidh Maharaj (supra) was relied on in Dharampal (Dead) v. Punjab Wakf Board (two- Judge Bench) on the same principle.
21.9 Claim of independent title and adverse possession at the same time amount to
- 41 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 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."
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
- 42 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 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."
The Court in Uttam Chand (supra) has reiterated this principle of adverse possession. 21.10 Burden of proof rests on the person claiming adverse possession.
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
- 43 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 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...."
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..."
21.11 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)]
24. The Apex Court has taken a deliberate consideration of the principles governing the adverse possession and has held that, to prove the adverse possession, the possession must be open, clear,
- 44 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 continuous and hostile to the claim or possession of the other party and the animus possidendi must be demonstrated. The Apex Court also held that any manner or longer the possession of the party is immaterial. The factum of the claimant having ever claimed the possession to that of true owner is the criteria that has to be established in a suit where the party is claiming adverse possession.
25. The Trial Court, in the present facts, while considering the material placed before it, has held that the plaintiffs have proved that defendants are cultivating the land with the permission of plaintiff No.1 with a specific understanding and agreement between plaintiff No.1 and mother of defendant No.1 Bhagamma and has come to a categorical finding that Ex.D-37 unregistered sale deed cannot be looked into for collateral purposes.
26. Ex.D.39 is the acknowledgement of debt and its translated copy is at Ex.D.40 in respect of Narayan Rao Madanshetty which has been not disputed by the
- 45 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 defendants. Ex.D.37 is the original unregistered sale deed and its translated copy is at Ex.D.38. The contents of Ex.D.38 reads as under:
"Translation Saledeed executed in the name and in favour of Veerappa S/o Saibanna Dhangar of Udnoor, R/o Kadganchi Tq Gulbarga, The Vendor of this saledeed Mallappa s/o Hirgappa Dhangar R/o Hirapur Tq Gulbarga, executed this saledeed in the year 1358 Fasli, to the effect that, the patta of the land S. No. 48 admesuring 31 acre, guntas (-) R/A of Rs. 50/- known as Shekh-Shetti shet, situated at Village Dabrabad Jagir stands in my name. In this land, my uncle Bhimanna has got 0-4-0 share; Kantappa has got 0-4-0 share; Ningappa has got 0-4-0 share and myself got 0- 4-0 share. They are the Shikmidars; and the possession over it, is according to our share and Wahiwat'. I had borrowed Rs. 475/- Four hundred seventy five rupees of Sikka Osmania, on interest of Rs. 2/- Percent per month, on executing the deed of mortgage with possession of my 0-4-0 share of whole land in favour of Narayan Manikappa Madamshetti. As I could not pay the Principal amount and its interest within the stepulated period as settled; so he asked me to
- 46 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 give him the possession of the said land and to execute the saledeed of the same, in his favour. After making its account, the amount has come out as two times of the principal amount i.e., Rs. 950/- Nine hundred and fifty rupees. As I could not pay the said amount, so I have sold this land to the extent of my share in your favour and in lieu of Rs. 950/- Nine hundred and fifty plus Rs. 50/- Fifty rupees in all Rs. 1000/- One thousand rupees of Sikka Osmania. Thus I have fulfilled and satisfied the amount of the aforesaid Madamshetti, mentioned in the stamp paper of the document No: - (316759) of 1353 Fasli, dated 29-9-1353 Fasli; and sold this land. The above mentioned fulfilled document of Madamshetti, is given in your custody. You have become the owner of the said land from today's date. You are authorised to get the patta transferred in your name in the Govt records. I have delivered the possession of the said land to you. My uncles Bhimanna and Kantappa are agreed to this sale of this land. Ningappa - the four anna Hissedar, is dead. No one has got any kind of objection at all. Hence executed this saledeed with my free will and desire.
D/- 30-12-1358 Fasli.
- 47 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 T.I.of Mallappa S/o Hirenna Dhangar, R/o Hirapur.
Scriber:- Gurbasappa S/o Pawdappa Biradar Patil of Hirapur.
T.I.of Bhimanna s/o Rayappa T.I.of Kantappa S/o Rayappa T.I.of Hiragappa S/o Rayappa.
Witnesses.
1 - Bhojappa Baswantrao police patil of Hirapur 2 - Rayappa Sharanappa Biradar of Hirapur"
27. A perusal of the said document, which is undisputed by either of the parties, would evidence that the unregistered sale deed has been executed in favour of defendants, by which, the defendants claimed to be the owners of the suit land.
28. The judgment relied by the learned counsel appearing for the respondents as stated supra in the cases of Venugopal Padayachi and Alla Baksh are the matters where adverse possession was sought by the mortgagee from the time of the mortgage deed was executed.
- 48 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005
29. The present facts differ from the facts and circumstances of the said judgment, the fact being that the defendants are not claiming to be in possession of the suit schedule property by way of mortgage, but on the other hand, on the basis of an unregistered sale deed, wherein the defendants claimed to be the owners of the suit schedule property. The plea of title and adverse possession cannot go together. The judgments relied by the learned counsel appearing for the respondents are not applicable to the facts and circumstances of the present case. The first Appellate Court while reversing the judgment of the Trial Court has framed the following points for consideration:
"1. Whether the lower court has committed error in holding that the plaintiffs have prove their title to the suit property?
2. Whether the lower court has committed error in holding that the defendant has fail to prove that he has perfected his title to the suit property by adverse possession?
- 49 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005
3. Whether the lower court has committed error in holding that the suit is not barred by limitation?
4. Whether the lower court has committed error in holding that the plaintiffs are entitled to mesne profits?
5. Whether the lower court has committed error in passing the impugned judgment and decree?"
30. While answering the points for consideration has arrived at a conclusion that the defendants have proved that they have perfected their title to the suit property by way of adverse possession by according a reasoning that Ex.D-37 the unregistered sale deed, though it is unregistered, the possession of the land from 13.12.1358 Fasli for more than 33 years is adverse to the knowledge of the plaintiffs and thereby perfected their title to the suit property by way of adverse possession. This reasoning of the first appellate Court, according to this Court is unsustainable for the reason that as stated supra and more particularly, in light of the decision of the Apex
- 50 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 Court in the case of Karnataka Board of Wakf, Narasamma and the decision in the case of Government of Kerala and Another stated supra, wherein the Apex Court clearly emphasized that the claim of the independent title and claim of adverse possession cannot simultaneously go together, and it amounts to contradictory plea. In the present facts, more particularly, the defendants have failed to prove the essential ingredients required for proving adverse possession as envisaged supra. When a plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property and in that context, the plea on the basis of title and adverse possession are mutually inconsistent and latter does not begin to operate until the former is renounced as held by the Apex Court in the case of Narasamma, Karnataka Board of Wakf and Government of Kerala stated supra.
31. For the reasons stated supra, the first appellate Court was not justified in holding that, the defendants
- 51 -
NC: 2023:KHC-K:7497 RSA No.2031 of 2005 have proved that they are in continuous possession of the suit schedule property adverse to the knowledge of the plaintiffs and have perfected their title of the suit property and accordingly, the substantial questions of law framed by this Court are answered against the defendants and in favour of the plaintiffs-appellants herein and this Court pass the following:
ORDER
(i) The regular second appeal is hereby allowed.
(ii) The judgment and decree of the first Appellate Court is hereby set aside and the judgment and decree of the Trial Court stands confirmed.
Sd/-
JUDGE RSP List No.: 1 Sl No.: 60