Karnataka High Court
M Nagaraju vs Srinivasa on 20 December, 2023
RSA No.73/2012
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
REGULAR SECOND APPEAL NO.73 OF 2012 (DEC)
BETWEEN
M NAGARAJU
AGED 50 YEARS
FOSTER SON OF LATE G NARAYANA SETTY
R/AT NO.3704, 3RD MAIN, 9TH CROSS,
TILAKNAGAR, MYSORE 570021
...APPELLANT
(BY SRI. KRISHNAMURTHY G HASYAGAR, ADV.)
AND
1 . SRINIVASA
AGED 51 YEARS
S/O LATE KITTAIAH @ GOVINDAIAH
2 . ANANTHA
AGED 49 YEARS
S/O LATE KITTAIAH @ GOVINDAIAH
NO.3704/1, 3RD MAIN, 9TH CROSS,
TILAKNAGAR, MYSORE - 570021
...RESPONDENTS
(BY SRI. Y.V. PRAKASH, ADV. FOR
SRI. Y.K. NARAYANA SHARMA, ADV. FOR R1 & R2)
RSA No.73/2012
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THIS RSA IS FILED UNDER SEC.100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 19.11.2011
PASSED IN R.A.311/2011 ON THE FILE OF THE II-ADDL.
DISTRICT JUDGE, MYSORE, DISMISSING THE APPEAL AND
FILED AGAINST THE JUDGMENT AND DECREE DATED
23.04.2011 PASSED IN O.S.NO.266/2001 ON THE FILE OF
THE II-ADDL. SENIOR CIVIL JUDGE, MYSORE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 05.12.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This second appeal is filed by the appellant challenging the judgment and decree dated 19.11.2011, passed in R.A.No.311/2011 by the II Addl. District Judge, Mysore, confirming the judgment and decree dated 23.04.2011, passed in O.S.No.266/2001 by the II Addl. Senior Civil Judge, Mysore.
2. For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellant is the defendant and respondents are the plaintiffs.
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3. The brief facts leading rise to filing of this appeal are as under:
Plaintiffs filed a suit for declaration of title and possession of suit property. Plaintiffs are sons of Late G. Kittaiah @ Govindaiah, R/a No.3704, 3rd Main, 9th Cross, Tilaknagar, Mysore. The entire property including door No.3704/1 is situated in the same locality belong to plaintiffs' father Late Kittaiah. He had purchased the said property under registered sale deed dated 01.08.1933 and eversince from the date of purchase, the khata was in the name of G.Kittaiah and was paying the Municipal Tax. One G.Narayanashetty was the elder brother of the plaintiff's father i.e., G.Kittaiah. As the said G.Narayanashetty had no stay at his life, he was living with his elder brother and was under the care and protection of his younger brother G.Kittaiah till the death of Kittaiah. G.Narayanashetty was look after by the plaintiffs' father till his death in RSA No.73/2012 -4- the year 1970. The entire property belongs to plaintiffs' father. G.Narayanashetty had no right, title or interest over the suit property. G.Narayanashetty filed an affidavit before the Magistrate on 03.06.1971.
On 04.09.1976, the partition was effected between the family members of the plaintiffs in respect of suit schedule property under a registered partition deed.
Door No.3704 fell to the share of plaintiffs in equal.
Door No.3704 was divided into two shares. One share was allotted to first plaintiff and another share was allotted to plaintiff No.2. After the partition, the property which was allotted to first plaintiff was numbered as 3704 and the property which was fallen to plaintiff No.2 was numbered as door No.3704/1.
The plaintiffs have let out the portion of the property to the tenant, who used to pay the rent to the plaintiffs. After the death of Kittaiah, G.Narayanashetty requested the plaintiffs to permit RSA No.73/2012 -5- him and his family members to reside in the suit house for some time. The plaintiffs and their mother permitted G.Narayanashetty to reside in the suit property, if he agrees to pay the rent at the rate of Rs.150/- per month. Accordingly, G.Narayanashetty agreed to pay the rent at the rate of Rs.150/- per month. Thus, G.Narayanashetty became a tenant and he was paying monthly rent of Rs.150/-. The plaintiffs were in need of suit property. The plaintiffs requested G.Narayanashetty to vacate and hand over the possession of the suit schedule property. The said G.Narayanashetty did not vacated the suit schedule property. The plaintiffs filed eviction petition in HRC.No.366/1994 under the Karnataka Rent Control Act, 1961. The said eviction petition came to be dismissed on the ground that there exist no jural relationship between the plaintiffs and the defendant.
After the dismissal of the eviction petition, the RSA No.73/2012 -6- plaintiffs filed the suit for declaration, possession, damages and future mesne profits.
4. The defendant filed the written statement admitting the relationship of the plaintiffs with deceased Kittaiah. It is contended that the defendant is not aware about the Kittaiah purchased the entire door No.3704 on 01.08.1933 under registered sale deed. It is denied that the plaintiffs' father was in possession and enjoyment of the suit property, since from 1933. It is denied that G.Narayanashetty had taken the premises on lease and he was residing in the suit property as a tenant. It is contended that the defendant came to know from his father and mother that Kittaiah purchased the entire door No.3704, but he did not took the possession of the main house. It is contended that the parents of the defendant's are in continuous possession uninterrupted with the knowledge of the plaintiffs and their father enjoying RSA No.73/2012 -7- the property bearing door No.3704. It is contended that the predecessor in title of the plaintiffs failed to prove the possession of the property bearing door No.3704 for more than 70 years and their title over the said property is extinguished. During the life time of Kittaiah, he lost all the title over the door No.3704 and has extinguished his right. It is denied that there is a partition between the plaintiffs and their mother in respect of suit schedule property. The plaintiffs have no definite case to recover the possession of the property. It is admitted that the plaintiffs filed eviction petition against the defendant in HRC.No.386/1994. The said eviction petition came to be dismissed. It is contended that the defendant's mother executed a Will on 22.03.2000 bequeathing the suit schedule property. On 12.08.1985, the plaintiffs got issued a notice to G.Narayanashetty calling upon him to vacate the house. G.Narayanashetty gave a reply to the legal RSA No.73/2012 -8- notice. It is contended that defendant's father had denied the title of the plaintiffs over the suit property since from 1985 to June 2001. Neither the plaintiffs nor their mother have taken any steps to prove their title on the property in question. It is contended that the suit is barred by limitation and there is no cause of action to file a suit. Hence, on these grounds sought for dismissal of the suit.
5. The Trial Court, on the basis of the above said pleadings, framed the following issues and additional issues:
ISSUES:
1) Whether the plaintiffs prove their title over the suit property?
2) Do they further prove that defendant is residing in the schedule property as a tenant on monthly rent of Rs.150/-?
3) Whether the suit is barred by time?
4) Whether the plaintiffs are entitled for the relief as sought for?
5) What order or decree?RSA No.73/2012 -9-
ADDL. ISSUES:
1) Whether the defendant proves that he has perfected his title to the suit property by way of adverse possession?
2) Whether the defendant proves that his mother Chinnathayamma has executed a Will bequeathing the suit schedule property to him?
6. In order to prove the case of the plaintiffs, plaintiff No.2 examined himself as PW-1 and got marked 20 documents as Exs.P1 to P20. Defendant examined himself as DW-1 and got examined two witnesses as DW-2 & DW-3 and got marked 34 documents as Exs.D1 to D34. The trial Court after considering the oral and documentary evidence of the parties, answered issue No.1 and additional issue No.2 in affirmative; issue Nos.2, 3 and additional issue No.1 in negative; issue No.4 partly in affirmative; and issue No.5 as per the final order decreeing the suit of the plaintiffs in part and it is further declared that the plaintiffs are the absolute owners of the suit schedule RSA No.73/2012
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property and entitled for the possession of the same; further defendant was directed to vacate and handover the vacant possession of the suit schedule property to the plaintiffs within four months from the date of judgment; further the claim of the plaintiffs for damages as claimed at para 11(b) of the plaint was rejected; and it is further ordered that there shall be separate enquiry for mesne profits.
7. The defendant aggrieved by the judgment and decree passed in the above said suit, filed an appeal in R.A.No.311/2011. The First Appellate Court, after hearing the parties, has framed the following points for consideration:
1) XXX
2) Whether respondents/plaintiffs prove
that appellant's father Narayanasetty was a tenant on a monthly rent of Rs.150/-?
3) Whether the appellant proves that he has perfected title to the suit property by adverse possession?
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4) Whether appellant shows that suit is barred by law of limitation?
5) Whether the appellant proves the Will executed by his mother Chinnathayamma in respect of suit property?
6) Whether judgment and decree of the trial Court decreeing the suit for title, possession and mesne profits needs interference?
7) Whether cross appeal filed under Order 41 Rule 22(1) and 22(2) has to be allowed?
8) What order or decree?
8. From the perusal of the judgment passed by the First Appellate Court, I did not find point No.1 in the points for consideration, but the trial Court has recorded point No.1 in the affirmative. The First Appellate Court, on re-assessment of the oral and documentary evidence, point Nos.2 to 7 in negative; and consequently dismissed the appeal filed by the defendant, confirming the judgment and decree passed by the trial Court. The defendant, aggrieved RSA No.73/2012
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by the judgments and decrees passed by the courts below, has filed this second appeal.
9. This court admitted the appeal on the following substantial questions of law :
(1) Whether the courts below were right and justified in holding that the suit filed by the plaintiff was not hit by the bar of limitation in the light of the provisions contained under Article 65 of the Limitation Act having due regard to the legal notice -
Ex.D11 issued by the defendants?
(2) Whether the courts below have erred in holding that there was no period of limitation to file a suit for possession keeping in mind the facts and circumstances of the case and the previous litigation that both parties have been engaged in?
10. Heard learned counsel for the parties.
11. Learned counsel for the defendant submits that after the death of Kittaiah, the plaintiffs filed eviction proceedings under the provision of the Act alleging that late Narayanashetty continued in RSA No.73/2012
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possession of the suit property as a tenant. There exist no jural relationship of landlord and tenant between the plaintiffs and the defendant. The eviction petition was dismissed on the ground that there was no jural relationship of landlord and tenant between the plaintiffs and the defendant. The defendant, his mother and father have been openly, continuously and uninterruptedly with the knowledge of the plaintiffs and their predecessor in title are in possession and enjoyment of the property bearing No.3704 as the absolute owner by way of adverse possession for more than 70 years. Neither the plaintiffs nor their father took the possession of the property for more than 70 years their right over the suit property is extinguished. Kittaiiah had lost all rights in respect of suit property since he has failed to take possession of property No.3704. The father of defendant got issued a notice on 12.08.1985 to the plaintiffs asserting his RSA No.73/2012
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absolute right adverse to the title of the owner over the suit schedule property and denied the right of the plaintiffs/their mother.
12. In order to buttress his arguments, he has passed the reliance on the judgment of the Hon'ble Apex Court in the case of NAIR SERVICE SOCIETY LTD., VS. K.C.ALEXANDER AND OTHERS reported in AIR 1968 SC 1165, PERRY VS. CLISSOLD AND OTHERS reported in PRIVY COUNCIL 1906 PAGE 73, MST. SULTAN JEHAN BEGUM AND OTHERS VS. GUL MOHD. AND OTHERS reported in AIR 1973 MADHYA PRADESH 72, HARABALLAV SARMA AND OTHERS VS. MOHODAR SHARMA reported in AIR 1975 GAUHATI 76, A.R.R.M.V. ARUNACHALLAM CHETTY AND OTHERS VS. VENKATCHALAPATHI GURUSWAMIGAL reported in AIR 1919 PRIVY COUNCIL PAGE 62, THE HATTI GOLD MINES LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR VS. M/S. VINAY HEAVY EQUIPMENTS REPRESENTED BY ITS RSA No.73/2012
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PROPRIETOR reported in ILR 2005 KAR-1777, LINGAMMA VS. PUTTE GOWDA AND ANOTHER reported in AIR 1963 Page 1. He also placed reliance on the judgment of the Hon'ble Apex Court in the case of L.N. ASWTHAMA AND ANOTHER VS. P.PRAKASH in CIVIL APPEAL NO.4125/2009 disposed of on 21.04.2009 and T.ANJANAPPA AND OTHERS VS. SOMALINGAPPA AND ANOTHER in APPEAL (CIVIL) NO.3594/2006 disposed of on 22.08.2006. Hence, on these grounds, he prays to allow the appeal.
13. Learned counsel for the plaintiffs submits that in order to claim adverse possession, the party must admit the title of the other side. In the instant case, the defendant has denied the title of the plaintiffs over the suit schedule property. The defendant cannot claim plea of adverse possession. He further submits that the father of the plaintiffs let out the suit property to Narayanashetty on a monthly rent RSA No.73/2012
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of Rs.150/- per month. The plaintiffs filed eviction petition against the defendant and his mother in HRC.No.366/1994. The said petition dismissed on the ground that there was no jural relationship of the landlord and tenant between the plaintiffs and defendant and his mother. G. Narayanashetty during his life time filed petition in Misc.No.48/1989 as an indigent person praying for declaration of his title to the suit property against the plaintiffs and their mother. In the said miscellaneous petition, G.Narayanashetty has claimed his absolute ownership in respect of suit property. After the dismissal of eviction petition, the plaintiffs have filed suit for possession. The courts below have rightly passed the judgments and decrees.
14. In order to buttress his arguments, he has placed a reliance on the judgment of ANNAKILI VS. VEDANAYAGAM AND OTHERS reported in 2007 AIR RSA No.73/2012
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SCW 6892, HEMAJI WAGHAJI JAT VS. BHIKABHAI KHENGARBHAI HARIJAN AND OTHERS reported in AIR 2009 SC 103, L.N.ASWATHAMA AND ANOTHER VS. P.PRAKASH reported in 2009 AIR SCW 5439, the STATE OF HARYANA VS. MUKESH KUMAR AND OTHERS reported in AIR 2012 SC 559. Hence, on these grounds, he prays to dismiss the appeal.
15. Perused the records and considered the submissions of learned counsel for the parties.
16. Substantial question No.1: The plaintiffs in order to prove their case, plaintiff No.2 was examined as PW.1 and he had reiterated the plaint averments in the examination in chief and got marked the documents Ex.P1 is the copy of legal notice dated 22.08.1994 issued to mother of the defendant to vacate and hand over the possession of the suit schedule property and to pay the arrears of rent, RSA No.73/2012
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Exs.P2 and P3 are the original registered sale deeds which discloses that the father of the plaintiffs had purchased the suit schedule property, Exs.P4 and P5 are the khata endorsement, Ex.P6 is the tax paid receipt in respect of the suit schedule property on 17.11.1998, wherein plaintiff No.2 has paid the tax in respect of the suit schedule property, Ex.P7 is form No.9 in respect of suit property, Ex.P8 is the declaration dated 03.06.1971 by the father of the defendant i.e., G.Narayanashetty, wherein he has admitted that the property shown in Ex.P6 is the asset of firm Mrs. Kittaiah and sons and all the properties are the self acquired property of his brother Kittaiah and he has no manner of right title and interest in the properties mentioned in Ex.P6, Ex.P9 is the certified copy of order sheet in Misc.No.2/1993, Ex.P10 is the certified copy of the petition filed in Misc.No.2/1993, Ex.P11 is the certified copy of statement of objections RSA No.73/2012
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filed by respondent No.1, 3 to 5 therein, Ex.P12 is the certified copy of order sheet Misc.No.48/1989, wherein the said miscellaneous petition came to be dismissed as not pressed on 12.03.1993, Ex.P13 is the certified copy of the petition filed in Misc.No.48/1989, Exs.P14 and P15 are the certified copy of the objections filed by respondent Nos.1, 3, 4 and 5 therein, Ex.P16 is the certified copy of the partition deed, Ex.P17 is the marriage invitation card of plaintiff No.1, Exs.P18 and P19 are the positive photographs, Ex.P20 is the certified copy of the order passed in HRC.No.366/1994 filed by the petitioners against the defendant and his mother under Section 21(1)(A) and (H) of the Act. The HRC petition was dismissed vide order dated 25.02.2000. In the course of cross examination it was suggested that suit property is a portion of house No.3704 and PW.1 admits the same and denied that the entire RSA No.73/2012
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measurement of house No.3704 is 60 feet X 45 feet but it is only 35 feet X 45 feet. He admits that father of PW.1 and father of defendant are brothers and father of defendant had no worldly knowledge like his father. He admits that Narayana Setty filed the Misc. No.48/1989 and the plaintiffs have filed the objections to the said petition and further, G. Narayanashetty filed the declaration on 03.06.1971 admitting that he has no right in any property belonging to the father of the plaintiffs. He admits that the father of the defendant issued a notice on 12.08.1985 to his mother and his mother gave a reply to the notice. He denied that in the said legal notice, the father of the defendant claimed his ownership by way of continuous possession. He admits that he has not filed any other petition against the father of the defendant or defendant claiming possession. It is elicited that in the said HRC proceedings, the defendant denied the RSA No.73/2012
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relationship of the landlord and tenant between himself and the respondent therein and claimed the ownership over the said property and that during the pendency of Misc.No.48/1989, G.Narayanashetty died and after his death, his wife and the presents of the defendant filed Misc.No.2/1993 as an indigent person. A question was put to PW.1 in what capacity the present defendant is residing in the suit schedule property. PW.1 gave answer that the defendant is in unauthorized possession of the suit schedule property. He admits that after the death of the father of defendant, the defendant and his mother are continued in possession of the schedule property. Plaintiff No.2 was further examined on 28.02.2011, wherein he had deposed that the allegation made by the defendant that as a legal heir and also as a legatee, his mother executed a Will on 22.03.2000 in RSA No.73/2012
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favour of the defendant is false and the defendant has not acquired any right over the schedule property.
17. In rebuttal, defendant was examined as DW.1 and he had reiterated the written statement averments in the examination-in-chief and got marked document i.e., Ex.D1 is the passbook and the said passbook stands in the name of father of defendant No.1, Ex.D2 is the passbook issued by the Mysore Co- operative Society Ltd., it discloses that the father of the defendant was having account in the said Co- operative Bank, Ex.D3 is the copy of ration card, which discloses that the name of Narayanashetty, Ex.D4 is the demand pronote executed by Narayanashetty in favour of Indian Bank Ltd., on 16.01.1954, Exs.D5 and D6 are the Kandaya receipts, Ex.D7 is the post office passbook wherein Narayanashetty having account in the post office, Ex.D8 is the copy of the legal notice got issued by RSA No.73/2012
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Narayanashetty i.e., father of the defendant to the mother of the plaintiffs on 12.08.1985 claiming the absolute and exclusive owner of the suit schedule property, Ex.D9 is the reply to Ex.D8, Ex.D10 is the plaintiff got issued a notice to the mother of the defendant on 22.08.1994, Ex.D11 is the copy of reply got issued by the defendant to the advocate of the plaintiffs, Exs.D12 to D21 are the tax paid receipts, Ex.D22 is the copy of petition filed in HRC No.366/1994 and Ex.D23 is the certified copy of the order passed in HRC 366/1994.
18. In the course of cross-examination, it is elicited that previously both houses shown in Ex.P18 were bearing one door number and also admits that G. Narayanashetty is elder brother of the plaintiffs' father and he do not know the names of G.Narayanashetty's real parents and their native place. It is elicited that G.Narayanashetty and his wife RSA No.73/2012
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Chinnathayamma had no issues and admits that G. Narayanashetty had filed miscellaneous No.48/1989 against Lakshmidevappa i.e., the plaintiffs mother and other brothers of the plaintiffs and the Deputy Commissioner of Police. In the said miscellaneous petition, G.Narayanashetty claimed that he is the owner of the suit schedule property therein and miscellaneous petition was dismissed. It is elicited that except that petition, G.Narayanashetty had not filed any other suit in respect of suit property. DW.1 voluntarily states that during the pendency of miscellaneous petition, G.Narayanashetty died. He admits that in the miscellaneous petition, DW.1 and Chinnathayamma were claiming ownership of the suit property and miscellaneous petition was dismissed. After the dismissal of miscellaneous petition, DW.1 and Chinnathayamma have not filed any other suit claiming ownership rights over the suit property and RSA No.73/2012
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he pleads ignorance that the suit property was purchased under registered sale deed in the year 1933 by name one Kittaiah i.e., the brother of G.Narayanashetty and also pleads ignorance that G.Narayanashetty and Chinnathayamma have not purchased the suit property and khata extract of the suit schedule property was not standing in the name of G.Narayanashetty and Chinnathayamma. khata is not in his name and he do not know the property is presently standing in the name of plaintiff No.2 and he had not enquired in whose name the khata of the said property was standing. He admits that he has no knowledge about the properties belonging to G.Kittaiah and no property is also standing in the name of G.Narayanashetty and his wife Chinnathayamma. It is suggested to DW.1 that the plaintiffs are the legal heir of G. Narayanashetty and Chinnathayamma. Witness volunteers that DW.1 is RSA No.73/2012
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also the legal heir and not obtained any order from the Court to declare that he is the legal heir of G.Narayanashetty and his wife Chinnathayamma. He admits that there is no adoption deed. He pleads ignorance about the name of his natural father. He admits that the house in which DW.1 is residing is in possession of plaintiff No.1 were bearing only one number 3704 and admits that in the year 1933 after purchase of the said property by Kittaiah, the khata was changed in his name and he do not know that the khata of the schedule property was changed in the name of plaintiffs and Kittaiah died in the year 1970. It is elicited that G.Narayanashetty had not filed any suit claiming the share in the property mentioned in Ex.P8. DW.1 admits that he has not produced any documents, that the schedule property was belonging to ownership of either G.Narayanashetty or himself. He admits that the plaintiffs filed HRC.No.366/1994 RSA No.73/2012
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against him and his wife of G.Narayanashetty i.e., Chinnathayamma. It is elicited that in the partition deed, the schedule property was given to the share of plaintiffs and G.Narayanashetty is the resident of Ganjam. It is elicited that prior to the marriage of G.Narayanashetty, the marriage of Kittaiah was performed and Kittaiah along with his fie and children was residing in Mysore. Further, it is elicited that Kittaiah had shop in Santhepete, Mysore. He admits that he do not know the said shop is now fallen to the share of Narayanashetty S/o Kittaiah and he admits that Kittaiah was the wholesale dealer. Ex.D4 confronted to DW.1. He admits that it bears the signature of G.Narayanashetty.
19. From the perusal of the documents produced by the parties, it discloses that the suit property was purchased by plaintiff's father under registered sale deed dated 01.08.1933 and name of RSA No.73/2012
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plaintiff's father was entered in the khata and he was paying the municipal tax. The father of the plaintiffs died in the year 1970. The suit schedule property was fallen to the share of plaintiffs under registered partition deed dated 04.09.1976. In the said partition, the suit property was divided into two portions. One portion was allotted to the share of plaintiff No.1 and another portion was allotted to the share of plaintiff No.2. The property allotted to the plaintiff No.1 was numbered as 3704 and property allotted to plaintiff No.2 as door No.3704/1. The father of the defendant got issued a notice to the mother of plaintiffs dated 12.08.1985 marked as Ex.D8 stating that he is in possession of the schedule property bearing door No.3704 and he is the absolute owner of the said property and neither mother of plaintiffs nor plaintiffs have any manner of rights whatsoever in the suit land. The defendant and his mother filed a RSA No.73/2012
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Miscellaneous petition No.2/1993 on the file of Ist Additional Munsiff, Mysore, against the plaintiffs and his mother and other brothers. The plaintiffs have produced the copy of order sheet passed in Misc. petition No.2/1993 marked as Ex.P.12 and copy of petition filed in Miscellaneous petition No.2/1993 marked as Ex.P.13. It is stated in the petition that the defendant and his mother filed a suit for declaration and consequential relief of permanent injunction in respect of suit schedule house property and she is a very old lady and she lost her husband and she does not possess any movable or immovable property except the house where she is residing with the defendant herein. In the said petition, the defendant and his mother have not pleaded that they are in possession of the suit schedule property without interruption or obstruction from anybody not claimed any ownership over the suit schedule property by way RSA No.73/2012
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of adverse possession. The plaintiffs filed a objection to the said miscellaneous petition. The said miscellaneous petition was dismissed vide order dated 12.03.1993 as not pressed. After the receipt of Ex.D8, the plaintiffs got issued notice dated 22.08.1994 stating that the plaintiffs are the absolute owners of the suit schedule property and their father purchased the said property under registered sale deed and G.Narayanashetty i.e., father of the defendant requested the father of the plaintiffs to permit him to stay in the suit schedule property on a monthly rent of Rs.150/- per month and the father of the defendant stopped paying the monthly rent and calling upon the father of the defendant to vacate the premises. Mother of defendant replied to the legal notice dated 22.08.1994 admitting that the father of the plaintiffs purchased the suit schedule property under registered sale deed dated 01.08.1933 and claimed ownership by RSA No.73/2012
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way of adverse possession. After the receipt of a reply from the mother of defendant the plaintiffs filed the eviction petition under the provisions of Karnataka Rent Control Act against the defendant and his mother in HRC No.366/1994. The defendant and his mother filed a statement of objection contending that there exist no jural relationship as a landlord and tenant between the plaintiffs and defendant and his mother. The trial Court holding that there exists no jural relationship as a landlord and tenant between the plaintiffs, defendant and his mother and dismissed the petition. From the perusal of the order passed in HRC No.366/1994, the defendant and his mother nowhere stated in the statement of objections that they acquired right of ownership by way of adverse possession. After the disposal of HRC proceedings, the plaintiffs filed this suit for possession. The defendant is claiming to be in possession of property RSA No.73/2012
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by way of adverse possession. In the instant case, admittedly, the defendant has denied the title of the plaintiffs. The defendant has failed to prove the ingredients of adverse possession. i.e., (i) The date of possession (ii) The possession was known to the public (iii) The nature of the possession (iv) The continuity of the possession (v) The duration of the possession. All these requirements are not pleaded in the written statement. Hence, defendant cannot claim the plea of adverse possession against the plaintiffs unless and until admits the title of plaintiffs. The crux of the matter that a person who asserts possessory title over a particular property will have to show that he is under control of established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner. Settled possession means such possession over the property which has existed for a sufficiently RSA No.73/2012
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long period, and has been acquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession that has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. Settled possession must be effective, undisturbed and to the knowledge of the owner or without any attempt at concealment by the trespasser. There cannot be a straitjacket formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. The nature of possession of the trespassers is to be decided based on the facts and circumstances of the case. The Hon'ble Apex Court in the case of NAIR SERVICE RSA No.73/2012
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SOCIETY LIMITED VS. K.C. ALEXANDER REPORTED IN AIR 1968 SC held that a person in possession of land in the assumed character of the owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against the entire world except for the rightful owner. In such a case, the defendant must show in himself or his predecessor a valid legal title and probable possession before the plaintiff's possession and thus be able to raise presumption prior in time.
20. The defendant except pleading that the defendant is the owner by way of adverse possession has not produced any record to show that his name is appearing in the municipal records. Further, he admits in the course of cross-examination that earlier khata was stood in the name of father of plaintiffs and he admits that the khata of suit schedule property was not standing in the name of his father and mother at RSA No.73/2012
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any point of time. The father of the defendant issued legal notice on 12.08.1985 claiming ownership over the schedule property. Before the expiry of 12 years from the date of issuing notice as per Ex.D8, the mother of the plaintiffs replied to the legal notice dated 12.08.1985, on 07.10.1985 denying that the father of defendant is in occupation of the suit house as a owner. The mother of the defendant and defendant issued a notice on 25.08.1994 as per Ex.D11 denying that G.Narayanashetty filed an affidavit before the Magistrate on 03.06.1991 stating that he had no right, title or interest over the schedule property and G.Narayanashetty filed a Miscellaneous petition No.43/1989 for declaration of his title over the house on the basis of adverse possession and perfection of title. During the pendency of the miscellaneous petition, G.Narayanashetty died and the petition was withdrawn and filed a fresh miscellaneous RSA No.73/2012
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petition No.22/1993 and the miscellaneous petition was dismissed for default. Immediately, after the receipt of Ex.D11, the plaintiffs filed HRC No.366/1994, even considering Ex.D11, the possession of the defendant over the suit schedule property was not hit by Article 65 of the Limitation Act, 1963. The defendant has failed to prove that he has continued the possession of the suit property for the period prescribed under Article 65 of the Limitation Act and failed to establish the plea of adverse possession.
21. The Hon'ble Apex Court in the case of ANNAKILI VS. VEDANAYAGAM AND OTHERS REPORTED IN (2007) AIR SCW 6892 held in para 22, which reads as under:
"22. Claim by adverse possession has two elements:
(1) the possession of the defendant should become adverse to the plaintiff; and (2) RSA No.73/2012
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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 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. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more do not ripen into a title."
22. The Hon'ble Apex Court in the case of HEMAJI WAGHAJI JAT VS. BHIKHA BAI KHENGARBHAI HARIJAN AND OTHERS reported in (2008) SCW 6996 held in para 18, which reads as under:
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"18. In Karnataka Board of Wakf Vs. Government of India (2004) 10 SCC 779 at para 11, this Court observed as under:
"In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in 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".
The Court further observed that plea of adverse possession is not a pure question of law but a blended one of fact and law.
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Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."
23. The Hon'ble Apex Court in the case of L.N. ASWATHAMA AND ANOTHER VS. V.P.PRAKASH reported in AIR (2009) SCW 5439, held in para 17, which reads as under:
"17. The legal position is no doubt well settled. To establish a claim of title by prescription, that is adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It RSA No.73/2012
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is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence."
24. The Hon'ble Apex Court in the case of STATE OF HARYANA VS. MUKESH KUMAR AND OTHERS reported in AIR 2012 SC 559, held in paras 42 , 43, and 48, which reads as under:
"42. We inherited this law of adverse possession from the British. The parliament may consider abolishing the law of adverse possession or atleast amending and making substantial changes in law in the larger public interest. The Government instrumentalities- including the police- in the instant case have RSA No.73/2012
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attempted to possess land adversely. This, in our opinion, a testament to the absurdity of the law and a black mark upon the justice system's legitimacy. The Government should protect the property of a citizen- not steal it. And yet, as the law currently stands, they may do just that. If this law is to be retained, according to the wisdom of the Parliament, then at least the law must require those who adversely possess land to compensate title owners according to the prevalent market rate of the land or property in question. This alternative would provide some semblance of justice to those who have done nothing other than sitting on their rights for the statutory period, while allowing the adverse possessor to remain on property. While it may be indefensible to require all adverse possessors- some of whom may be poor- to pay market rates for the land they possess, perhaps some lesser amount would be realistic in most of the cases. The Parliament may either fix a set range of rates or to leave it to the judiciary with the option of choosing from within a set range of rates so as to tailor the compensation to the equities of a given case."RSA No.73/2012
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"43. The Parliament must seriously consider atleast to abolish "bad faith" adverse possession, i.e., adverse possession achieved through intentional trespassing. Actually believing it to be their own could receive title through adverse possession sends a wrong signal to the society at large. Such a change would ensure that only those who had established attachments to the land through honest means would be entitled to legal relief."
"48. The doctrine of adverse possession has troubled a great many legal minds. We are clearly of the opinion that time has come for change."
25. Considering the law laid down by the Hon'ble Apex Court the defendant has failed to establish animus possidendi. The Courts below were justified in holding that the suit filed by the plaintiffs was not hit by the bar of limitation in the light of provision contained in Article 65 of the Limitation Act. The defendant placed a reliance on the judgments. I have perused the judgments there is no dispute in RSA No.73/2012
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regard to the principles laid down in the decisions. The said decisions are not applicable to the present case in hand. In view of the above discussion, I answer substantial question No.1 in the affirmative.
26. Substantial question No.2: The plaintiffs prior to the filing of this suit filed an eviction petition under the provisions of Karnataka Rent Control Act. In the said proceedings the defendant denied the title of plaintiffs over the suit schedule property and contended that there is no jural relationship as a landlord and tenant between the plaintiffs and defendant. The trial Court dismissed the HRC proceedings holding that there exists no jural relationship as a landlord and tenant between the plaintiffs and defendant. The HRC Court has not recorded a finding that the eviction petition filed by the plaintiffs is not bonafide and same is filed with an intention to harass the defendant. The plaintiffs have RSA No.73/2012
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approached a wrong forum. The plaintiffs have prosecuted the HRC proceedings with due diligence and good faith. The time period spent in prosecuting the HRC proceedings is to be excluded under Section 14 of Limitation Act. The Hon'ble Apex Court in the case of LAXMI SRINIVASA R AND P BOILED RICE MILL Vs. STATE OF ANDHRA PRADESH AND ANOTHER IN CIVIL APPEAL NO.11225 OF 2022 disposed of on 14.11.2022, held that "exclusion of time is different and cannot be equated with condonation of delay. The period once excluded cannot be counted for the purpose of computing the period for which delay can be condoned, of course, for exclusion of time under Section 14 of the Limitation Act, the conditions stipulated in Section 14 have to be set aside".
27. In the instant case it is found that period from the date of filing of the HRC before the Courts RSA No.73/2012
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below, and the date on which it was dismissed viz., 25.02.2000 should have been enclosed. Bonafide of the plaintiff in filing HRC are not challenged. Further immediately after the dismissal of HRC proceedings, the plaintiff did file a suit for possession before the trial Court. On exclusion of the aforesaid, the suit preferred by the plaintiffs would be within the condonable period. As observed above, the defendant has failed to prove the adverse possession. The trial Court considering Section 27 of the Limitation Act, 1963 has recorded a finding in para 23 of the judgment. Thus in view of the above discussion, I answer substantial question No.2 in the negative.
28. Accordingly, I proceed to pass the following:
ORDER The appeal is dismissed.RSA No.73/2012
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The judgments and decrees passed by the courts below are hereby confirmed.
No order as to the costs.
SD/-
JUDGE SKS/SSB