Karnataka High Court
Revanna vs A Ramaiah on 8 April, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.F.A.NO.806 OF 2006 (DEC)
BETWEEN:
REVANNA
S/O LATE MARAPPA
SINCE DEAD BY HIS LRs
1. R. MUNIRAJAPPA
S/O LATE REVANNA,
AGED ABOUT 65 YEARS
2. R. MUNIPAPANNA,
S/O LATE REVANNA,
AGED ABOUT 60 YEARS
3. R. NAGARAJU,
S/O LATE REVANNA,
AGED ABOUT 56 YEARS
4. R. RAMAIAH,
S/O LATE REVANNA,
AGED ABOUT 48 YEARS
5. R. ANEPPA,
S/O LATE REVANNA,
AGED ABOUT 46 YEARS
ALL ARE RESIDING AT NO.1903/3,
KALLKERE VILLAGE, HORAMAVU POST,
BANGALORE-560043
2
(AMENDMENT CARRIED OUT AS PER COURT
ORDER DATED 01.03.2012)
...APPELLANTS
(BY SRI.JAYAKUMAR.S.PATIL, SR.COUNSEL FOR
SRI.V CHANDRAPPA, ADVOCATE)
AND:
1. A. RAMAIAH
S/O LATE ANNEYAPPA
SINCE DEAD BY HIS LRs
1(A). NAGAMMA,
W/O A.RAMAIAH,
AGED ABOUT 65 YEARS,
R/AT RAGHAVENDRA COLONY, 5TH CROSS,
T.C.PALYA ROAD, RAMAMURTHY NAGAR,
BANGALORE-560016.
1(B). CHANDRAMURTHY (PAPANNA)
S/O LATE A.RAMAIAH,
AGED ABOUT 40 YEARS,
R/AT RAGHAVENDRA COLONY, 5TH CROSS,
T.C.PALYA ROAD, RAMAMURTHY NAGAR,
BANGALORE-560016.
1(C). RENUKAMMA,
W/O RAMANNA
D/O LATE A.RAMAIAH,
AGED ABOUT 48 YEARS,
R/AT SULEBELE, KURUBARA PETE,
HOSAKOTE TALUK.
1(D). PADAMAMMA,
W/O VAJRAPPA,
D/O LATE A.RAMAIAH,
AGED ABOUT 44 YEARS,
3
R/AT III MAIN, 3RD CROSS,
N.S.PALYA, BTM LAYOUT,
KEMPAMMA COMPOUND, BANGALORE.
1(E). KANTHAMMA,
D/O LATE A.RAMAIAH,
AGED ABOUT 38 YEARS,
R/AT RAGHAVENDRA COLONY, 5TH CROSS,
T.C.PALYA ROAD, RAMAMURTHY NAGAR,
BANGALORE-560016.
1(F). BHAGYAMMA
W/O MUNEGOWDA,
D/O LATE A. RAMAIAH,
AGED ABOUT 35 YEARS,
R/AT ATTIBELE, SULIBELE HOBLI,
HOSAKOTE TALUK.
2. A KRISHNAPPA
S/O LATE ANNEYAPPA
SINCE DEAD BY HIS LRs
2(A). GOWRAMMA,
W/O LATE A.KRISHNAPPA,
AGED ABOUT 58 YEARS,
R/AT KALKERE VILLAGE,
K.R.PURAM HOBLI,
BANGALORE EAST TALUK.
2(B). RAVIKUMAR
S/O LATE A.KRISHNAPPA,
AGED ABOUT 38 YEARS,
R/AT KALKERE VILLAGE,
K.R.PURAM HOBLI,
BANGALORE EAST TALUK.
2(C). SHIVAPRASAD,
S/O LATE A.KRISHNAPPA,
AGED ABOUT 35 YEARS,
4
R/AT KALKERE VILLAGE,
K.R.PURAM HOBLI,
BANGALORE EAST TALUK.
2(D). JAYASHREE,
D/O LATE A.KRISHNAPPA,
W/O N.JAGADISH
AGED ABOUT 40 YEARS,
R/AT NO.129, RAGHAVENDRA COLONY,
SHAMIRPURA MAIN ROAD, CHAMARAJPET,
BANGALORE-560018.
3. A GOPAL
SINCE DEAD BY HIS LRS
3(A). SHYAMALA
W/O LATE A GOPAL
AGED ABOUT 48 YEAS
3(B). KUMAR
S/O LATE A GOPAL
AGED ABOUT 28 YEAS
3(C). JAGADEESH
S/O LATE A GOPAL
AGED ABOUT 20 YEARS
THE RESPONDENTS 11 TO 13 ARE
R/AT RAGHAVENDRA COLONY,
HORAMAVU ROAD, RAMAMURTHY NAGAR,
BANGALORE-560 016
...RESPONDENTS
(BY SRI.V.LAKSHMINARAYANA, SR.COUNSEL FOR
SRI.SHANKARLINGAPPA, ADVOCATE FOR R1(A-F), R2(A-D) AND
R3(A-C); SRI.ASHWIN KUMAR, ADVOCATE FOR R1(B) AND R2(B))
5
THIS RFA IS FILED U/S.96 R/W O XLI OF CPC AGAINST THE
JUDGMENT AND DECREE DT.1.4.2006 PASSED IN O.S.NO.6341/93
ON THE FILE OF THE VIII ADDL. CITY CIVIL JUDGE, BANGALORE
(CCH-15), DECREEING THE SUIT FOR DECLARATION AND
PERMANENT INJUNCTION, ONLY IN RESPECT OF SY. NO.380/2
MEASURING 2 ACRE, 14 GUNTAS.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 21.03.2022, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned Regular First Appeal is filed by the legal representatives of deceased plaintiff questioning the judgment and decree passed in O.S.No.6341/1993 wherein suit filed by the plaintiff in respect of 27 guntas in Sy.No.380/2 is dismissed on the ground that the relief claimed is barred by limitation.
2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court.
3. The facts leading to the case are as under:
The original plaintiff Revanna filed a suit seeking relief of declaration to declare that he is the absolute owner in respect 6 of suit schedule property bearing Sy.No.380/2 measuring 2 acres 14 guntas and sought for consequential relief of injunction and in the alternative prayed for delivery of encroached portion of 27 guntas which is the subject matter of the suit.
4. The plaintiff at paragraph 3 of the plaint specifically contended that the suit schedule property is inam land and his father was in possession of the inam land and the then Inam Deputy Commissioner has granted occupancy rights by order dated 29.12.1964. The plaintiff further claimed that after grant by the authority, plaintiff's father name was duly mutated to the revenue records and plaintiff's father was in peaceful possession and enjoyment over the suit schedule property. After the death of father of original plaintiff, plaintiff's name was mutated to the revenue records and the property is standing in the name of original plaintiff Revanna. Plaintiff claimed that he submitted an application to the Tahsildar, Bengaluru to effect phodi in Sy.No.380 and the 7 authorities accordingly measured the land and fixed the boundaries. The plaintiff further contended that defendants are falsely asserting title to an extent 3 acres 5 guntas in the above said survey number by deliberately including 27 guntas of plaintiff's land and therefore, the present suit is filed seeking relief of declaration to declare that plaintiff is the owner of land bearing Sy.No.380/2 measuring 2 acres 14 guntas and consequently also sought possession of 27 guntas.
5. The defendant No.2 filed written statement and stoutly denied the entire averments made in the plaint. The defendant No.2 has seriously disputed the grant made by the then Inam Deputy Commissioner in favour of plaintiff's father. The defendant No.2 apart from denying the averments in the plaint has specifically asserted and claimed that there was family partition on 01.10.1953 and in the said partition, the defendants were allotted their legitimate share and based on the said partition, defendants are in exclusive possession and enjoyment over the suit schedule property. The defendant 8 No.2 also specifically denied the allegation made by the plaintiff in regard to 27 guntas. On the contrary, defendant No.2 contended that it was only after survey, the authorities found that the defendants are in possession of the suit schedule property.
6. The defendant No.2 filed additional written statement and specifically disputed the grant made in favour of plaintiff's father. The defendant No.3 also filed additional written statement and has taken a similar stand as that of defendant No.2. Defendant No.3 also contended that there was a family partition in the year 1953. The defendant No.3 has furnished the sketch along with the written statement and has claimed that plaintiff's father was allotted a portion to an extent of 1 acre 29 guntas. At paragraph 8 of the written statement, the defendant No.3 claimed that the actual dispute is in respect of 27 guntas in Sy.No.380 and the same is in exclusive possession and enjoyment of defendants family pursuant to 1953 partition. On these set of defence, the 9 defendant No.3 also specifically contended that suit is barred by limitation and the rights, if any, of plaintiff stood extinguished as the suit is not filed within 12 years. At paragraph 15 of the written statement, defendant No.3 claimed that defendants have perfected their title by way of adverse possession and sought for dismissal of the suit.
7. Based on rival contentions, the Trial Court formulated the following issues:
"1) Whether the plaintiff proves that his father was in possession of the plaint schedule property and based on possession the Inam Deputy Commissioner has granted occupancy rights in Case No.164/56-57 dated 29.12.1964?
2) Whether the plaintiff proves that he is in lawful possession of the plaint schedule property?
3) Whether the plaintiff is entitled for the declaration prayed for?
4) Whether D.1 to D.3 prove that they have perfected the title to the plaint schedule property by adverse possession?
5) Whether the suit is barred by limitation?
6) What Order of decree?"10
8. The plaintiff to substantiate his claim examined one independent witness as PW.1 and adduced documentary evidence vide Exs.P-1 to P-46. The defendants in support of their contention examined defendant No.2 as DW.1 and adduced rebuttal documentary evidence vide Exs.D-1 to D-6.
9. The Trial Court having examined oral and documentary evidence answered issue No.1 in the affirmative by holding that plaintiff has succeeded in proving that his father was in possession of plaint schedule property measuring 2 acres 14 guntas in Sy.No.380/2 and the then Inam Deputy Commissioner based on actual possession has granted occupancy rights by order dated 29.12.1964. While answering issue No.2 partly in affirmative, the learned Judge held that plaintiff is in possession only to an extent of 1 acre 29 guntas and not in respect of entire extent measuring 2 acres 14 guntas. The learned judge by placing reliance on the oral and documentary evidence adduced by the defendants was of the view that defendants are in possession of 27 guntas as per the 11 family partition effected in 1953. The learned judge has come to conclusion that on perusal of Ex.P-5 and Ex.D-5, the plaintiffs are in possession of 1 acre 29 guntas and remaining 27 guntas is in possession of the defendants.
10. The learned Judge while dealing with issue No.4 has answered the said issue in the negative but, however, while dealing with issue No.5 which relates to limitation, has answered the same in the affirmative by holding that plaintiff has not pleaded as to when defendants occupied 27 guntas of land and when their possession became unlawful. Learned Judge was of the view that the alternative relief of possession is vaguely pleaded and the relief of alternate possession is not supported by proper pleadings. The learned Judge has placed reliance on the partition deed dated 01.10.1953 as per Ex.D-4 and has held that defendants are in possession since 1953 in pursuance of partition deed and therefore, the suit filed by plaintiff in regard to 27 guntas of land is barred by limitation and therefore, plaintiff's right in respect of 27 guntas of land 12 stands extinguished. On these set of reasonings, the Trial Court has proceeded to dismiss the suit.
11. Shri Jayakumar S.Patil, learned Senior Counsel appearing for the appellants/plaintiffs would vehemently argue and contend before this Court that the finding recorded by the Court below on issue No.5 is contrary to Articles 64 and 65 of Limitation Act. He would urge before this Court that the findings recorded by the Court below on issue Nos.4 and 5 would contradict each other. The learned Judge by answering issue No.4 in the negative, thereby has recorded a categorical finding that defendants have failed to prove that they have perfected their title by way of adverse possession, erred in non-suiting the suit of the plaintiff by applying Section 27 of the Limitation Act. This finding according to the learned Senior Counsel is perverse and contrary to catena of judgments rendered by the Hon'ble Apex Court as well as by this Court. He would also strenuously argue and contend that while dealing with issue No.5, the learned Judge has strangely 13 cast burden on the plaintiff to establish that when possession of defendants in respect of 27 guntas became adverse. He would submit to this Court that these findings recorded while dealing with issue No.5 are not at all sustainable and the findings and conclusions arrived at while answering issue No.5 are palpably erroneous and therefore, would warrant interference at the hands of this Court.
12. Placing reliance on the judgment rendered by this Court in the case of Danappa Revappa Kolli vs. Gurupadappa Mallappa Pattanashetti1 and S.D.Nagaraju and Others vs. Sri Shivaganga Education and Charitable Trust (R), Sira Town and Others2 would submit to this Court that plaintiffs by adducing cogent and clinching evidence have established their title over the suit schedule property. While dealing with issue No.4, learned Judge has considered the alternate plea of defendants that they have perfected their title by way of adverse possession and this claim is out-rightly 1 ILR 1990 Kar 610 2 2016 (1) KCCR 597 14 rejected by the learned Judge and issue No.4 is answered in the negative. Having answered issue No.4 in the negative, learned Senior Counsel would submit to this Court that the learned Judge erred in dismissing the suit by applying Section 27 of Limitation Act.
13. Reiterating the principles laid down by this Court in the case of S.D.Nagaraju (supra), he would contend that the burden of proving adverse possession is always on a person who claims adverse possession and it is for the defendants to plead and establish that on what date they came into possession and when the said possession became adverse. Questioning the findings of the learned Judge on issue No.5, he would place reliance on the judgment rendered by the Hon'ble Apex Court in the case of Indira vs. Arumugam and Another3. Taking this Court to paragraph 5 of the said judgment, he would contend that once title is established, unless defendant proves adverse possession, the plaintiff 3 ILR 1998 Kar 1422 15 cannot be non-suited. Placing reliance on the judgment of the Hon'ble Apex Court rendered in the case of Brijesh Kumar and Another vs. Shardabai (Dead) by legal representatives and Others4, he would contend that a person who sets up adverse possession has no equities in his favour and therefore, the entire burden is on a person asserting adverse possession to clearly plead and establish all facts necessary to establish adverse possession.
14. Learned Senior Counsel would conclude his arguments by placing reliance on the judgment rendered by the Division Bench of this Court in the case of Stumpp Scheule & Somappa (P) Ltd. vs. Chandrappa5 and would contend that the learned Judge erred in declaring the plaintiff as owner of 1 acre 29 guntas excluding 27 guntas and this finding is contrary to clinching documentary evidence vide Ex.P2. Placing reliance on the Division Bench judgment, he would contend that orders granting registration of occupancy 4 (2019) 9 SCC 369 5 ILR 1985 Kar 3872 16 rights is final and conclusive as per the Act under which occupancy rights are conferred and a Civil Court has no jurisdiction to examine the validity of acquisition rights granted by an authority.
15. Per contra, Shri V.Lakshminarayana, learned Senior Counsel appearing for the respondents/defendants would, however, counter the contentions raised by the plaintiffs. He would contend that as per the family partition dated 01.10.1953, defendants were allotted 3 acres 5 guntas in Sy.No.380 and remaining 1 acre 29 guntas was allotted to the plaintiff's father and therefore, he would contend that defendants are asserting their exclusive possession on the basis of 1953 partition and therefore, he would contend that the suit is hopelessly barred by limitation and this aspect has been rightly dealt by the learned Judge. He would further contend that plea of adverse possession is an alternative plea taken by defendants and their main ground of defence is based on the family partition dated 01.10.1953. 17
16. To buttress his arguments, he would place reliance on the judgment rendered by the Division Bench of this Court in the case of Leharchand vs. Gulabchand6. Placing reliance on the said judgment, he would contend that the rights, if any, of plaintiffs is extinguished under Section 27 of Limitation Act and consequently a right is created in favour of defendants herein and therefore, on account of extinguishment of rights of plaintiffs, it has to be presumed that defendants have acquired title to the property. He would also bring to the notice of this Court that the judgment rendered by the Division Bench of this Court in Leharchand (supra) is confirmed by the Hon'ble Apex Court. Learned Senior Counsel has further placed reliance on the judgment rendered by Division Bench of this Court in the case of V.Channanarasimhaiah vs. Additional Tahsildar, Bangalore North Taluk & Others7. Placing reliance on this judgment, he would contend that the Tahsildar has no 6 2015 SCC Online Kar 8913 7 ILR 1997 Kar 924 18 jurisdiction to invoke Section 7 of the Karnataka Village Offices Abolition Act, 1961 and evict the person to whom the lands are re-granted.
17. Learned Senior Counsel for the defendants would also vehemently argue and contend before this Court that the defendants have produced additional evidence in the case. He would place reliance on paragraph 11 of the judgment rendered by this Court in MFA.No.341/1992 to demonstrate that defendants are in possession of 3 acres 27 guntas in Sy.No.380. On these set of defence, learned Senior Counsel would request this Court to dismiss this appeal.
18. Heard learned Senior Counsel appearing for the plaintiffs and learned Senior Counsel appearing for the defendants. Perused the pleadings, oral and documentary evidence. The following points would arise for consideration:
1) Whether the Trial Court erred in dismissing the suit by answering issue No.5 in the 19 affirmative by holding that the suit is barred by limitation?
2) Whether plaintiff has made out a case to admit the additional evidence on record?
Re: Point No.2:
19. By way of additional evidence, the plaintiffs have produced the re-grant order in favour of defendants granting 2 acres 14 guntas by order dated 27.12.1964. The said application is not at all resisted by the defendants. On the contrary, learned Senior Counsel appearing for defendants submits that he has no objection to admit the additional evidence on record. In the light of submission made by learned Senior Counsel appearing for defendants, this Court is of the view that the additional evidence has to be taken on record in the interest of justice. The additional evidence is very much essential for effective adjudication of the claim and rival claim made by the parties to the suit. Accordingly, I.A.No.1/2019 is allowed and the re-grant in favour of defendants in Sy.No.380/2 measuring 2 acres 14 guntas is 20 taken on record. Accordingly, point No.2 is answered in the affirmative.
Re: Point No.1:
20. The subject matter of the suit is an agricultural land bearing Sy.No.380/2 measuring 2 acres 14 guntas. The plaintiff asserts right and title on the basis of occupancy rights granted by the then Inam Deputy Commissioner in favour of his father by order dated 29.12.1964 as per Ex.P-2. Based on this order, the plaintiff asserts title to an extent of 2 acres 14 guntas. Per contra, the defendants are claiming title to an extent of 3 acres 27 guntas on the basis of family partition dated 01.10.1953 vide Ex.D-4.
21. This Court has to examine as to whether the partition dated 01.10.1953 is admissible in evidence. It is trite law that if the partition is reduced in writing, then the same requires registration, unless the document indicates that it is reporting prior partition which does not require 21 registration. However, on perusal of the partition deed as per Ex.D-4, the parties have resolved to effect partition under the very document and therefore, an unregistered partition document is inadmissible in evidence for want of registration and therefore, cannot be looked into. Even if the partition deed was registered, having regard to the nature of the suit land which is admittedly inam land, property vests with the Government and therefore, there cannot be partition in respect of an inam land. After abolition of Karnataka Village Offices Abolition Act, the inam land, by operation of law, immediately vests with the Government. Therefore, the contention of defendants that their rights in the suit land to an extent of 3 acres 5 guntas emanates from the partition deed vide Ex.D-4 is misconceived and unfounded. Even if there was partition under registered partition deed, the same would not immediately create absolute right in the suit land. At the most, it could have enabled the parties to seek grant in terms of their extent held in terms of the partition deed, if at all it 22 was registered. Therefore, the right and title of plaintiffs and defendants has to be examined only by referring to the grant orders passed by the competent authority.
22. Ex.P-2 is the grant order passed by the Inam Deputy Commissioner and on perusal of the said document, it is clearly evident that the plaintiff's father was granted to an extent of 2 acres 14 guntas. Similarly, defendants were granted 2 acres 14 guntas which is evident from the additional evidence. None of the parties have challenged both the grant orders till this date. Therefore, plaintiffs and defendants both have acquired valid right and title in terms of the grant order vide Ex.P-2 and additional evidence.
23. If the parties have acquired right and title based on the grant orders, the Civil Court has to adjudicate the rights of the parties only in terms of the grant orders which are placed before this Court. Therefore, the Division Bench judgment relied by the plaintiffs in the case of Stumpp Scheule & 23 Somappa (P) Ltd. (supra) is squarely applicable to the present case on hand. The Division Bench while examining the provisions of Inams Abolition Act has held that the orders granting registration of occupancy rights is final and conclusive and therefore, Civil Court has no jurisdiction to reopen the matter. In the present case, the defendants have not challenged the grant of occupancy rights in favour of plaintiff's father as per Ex.P-2. Therefore, any amount of evidence contrary to the grant order as per Ex.P-2 is inadmissible in evidence.
24. In the background of the above factual matrix, this Court has to examine whether the Trial Court was justified in dismissing the suit by holding that suit is barred by limitation. The question that needs to be examined is as to whether learned Judge having answered issue No.4 in the negative was justified in non-suiting the plaintiffs by holding that suit is barred by limitation by invoking Section 27 of the Limitation Act. In the present case on hand, the learned Judge has held 24 that defendants have failed to prove that they have perfected their title. Having answered issue No.4 in the negative, this Court has to examine whether learned Judge was justified in dismissing the suit as barred by limitation by invoking Section 27 of the Limitation Act.
25. Before I proceed, it would be useful for this Court to examine the principles laid down by the Hon'ble Apex Court in the case of Indira vs. Arumugam (supra). The Apex Court while examining Article 65 of Limitation Act has held that once title is established, unless defendant proves adverse possession, plaintiff cannot be non-suited. It would be useful for this Court to cull out paragraphs 4 and 5 which reads as under:
"4. The aforesaid reasoning of the learned Judge, with respect, cannot be sustained as it proceeds on the assumption as if old Article 142 of the earlier Limitation Act was in force wherein the plaintiff who based his case on title had to prove not only title but also possession within 12 years of the date of the suit. The said provision of law has undergone a 25 metamorphic sea change as we find under the Limitation Act, 1963 Article 65 which reads as under:
Description of suit Period of limitation Time from which period begins to run
65. For possession of immovable Twelve years When the property or any interest therein possession of the based on title. defendant becomes adverse to the plaintiff.
5. It is, therefore, obvious that when the suit is based on title for possession, once the title is established on the basis of relevant documents and other evidence unless the defendant proves adverse possession for the prescriptive period, the plaintiff cannot be non-suited. Unfortunately, this aspect of the matter was missed by the learned Judge and, therefore, the entire reasoning for disposing of the second appeal has got vitiated. Only on that short ground and without expressing any opinion on the merits of the question of law framed by the learned Judge for disposing of the second appeal, this appeal is allowed. The impugned decision rendered is set aside and the second appeal is restored to the file of the High Court with a request to proceed further with the hearing of the appeal with respect to the substantial question aforementioned in accordance with law. No costs."26
26. If the principles laid down by the Hon'ble Apex Court in the aforesaid judgment is meticulously examined, this Court is of the view that a suit for possession based on title can be non-suited only if defendant succeeds in establishing that he has perfected his title by way of adverse possession. Therefore, it is more than a trite that in a suit for possession based on title, the entire burden is on the defendant to prove that he has perfected his title by way of adverse possession. Section 27 of Limitation Act would come into play only if Article 65 of the Limitation act is applicable to the facts of the case. Thereby it necessarily means that only if defendant succeeds in proving that he has perfected his title by way of adverse possession, the right, if any, of a true owner stands extinguished under Section 27 of Limitation Act. Therefore, it is only in those cases where plaintiff does not take any action for recovery of possession of land within a period of 12 years as provided under Article 65 in Schedule I of Limitation Act, 1963, his rights gets extinguished and the land is left in 27 abeyance. Therefore, to bring in the application of Section 27, defendant has to establish that he has perfected his title by way of adverse possession. The law of adverse possession based upon the principle that a land cannot be left in abeyance for a long time.
27. The underlining principle governing the doctrine of adverse possession is when rightful owner has lost his rights, the person in adverse possession becomes in rightful possession and absolute owner of land under Article 65. But Article 65 will come into play and the limitation period of 12 years starts only when possession has become adverse to the true owner and not otherwise. If defendants have failed to establish that they have perfected their title by way of adverse possession, Article 65 is not at all applicable. Consequently, there is no extinguishment of right and title of plaintiff over the suit schedule property under Section 27 of Limitation Act. If there is no extinguishment of right under Section 27 of Limitation Act, the provisions of Article 65 are not at all 28 applicable. If the possession is based on title and if the provisions of Article 65 are not applicable, plaintiff is entitled to seek possession in respect of encroached portion of 27 guntas which is in possession of the defendants.
28. The material on record vide Ex.P-34 (which is settlement Akarbandh) coupled with Ex.P-35 which is a certified copy of the sketch would clearly establish that defendants have encroached 27 guntas and they are in possession without any semblance of right and title. Therefore, it is in this background, this Court is of the view that the learned Judge having answered issue No.4 in the negative by holding that defendants have failed to establish their title by way of adverse possession erred in dismissing the suit as barred by limitation. If defendants have failed to prove that they have perfected their title, the Trial Court was not justified in non-suiting the plaintiffs by applying the provisions of Limitation Act. The provisions of Article 65 of Limitation Act have to be read conjointly with Section 27 of Limitation Act. 29 Having regard to the facts and circumstances of the case, if defendants have not succeeded in proving adverse possession, plaintiffs claim has to succeed and therefore, this Court is of the view that plaintiffs are entitled to recover possession. Accordingly, point No.1 is answered in the affirmative. Conclusions:
29(a) The learned Judge having answered issue No.1 in the affirmative and having recorded a finding that the Inam Deputy Commissioner has granted occupancy rights in favour of plaintiff's father and having answered issue No.4 in the negative by recording a categorical finding that defendants have failed to prove their title by way of adverse possession, erred in answering the issue on limitation in the affirmative by holding that suit is barred by limitation.
(b) Ordinarily when a plaintiff sues for possession and alleges dispossession and if defendant were to set up a plea of adverse possession, then the entire burden is on the defendant to prove that he has perfected his title by way of 30 adverse possession. In the present case on hand, learned Judge has answered issue No.4 relating to adverse possession in the negative and therefore, the finding of the learned judge on issue No.5 relating to limitation is palpably erroneous and contrary to the principles laid down by the Hon'ble Apex Court in the case of Indira vs. Arumugam (supra), wherein Hon'ble Apex Court has held that once title is established unless defendant proves adverse possession, plaintiff cannot be non-suited.
(c) The findings of the learned Judge that period of limitation prescribed is 12 years and plaintiff has not pleaded as to when defendants occupied 27 guntas of land is perverse, palpably erroneous and contrary to the judgment rendered by the Hon'ble Apex Court in the case of Indira vs. Arumugam (supra). The learned Judge has virtually misconstrued the provisions of Section 27 of limitation and Article 65 of Limitation Act. Though issue Nos.4 and 5 cast burden on the defendants, the learned judge has strangely drawn adverse 31 inference against the plaintiff by holding that the pleadings as to when plaintiff was dispossessed are vague and are not sufficient. The said findings suffer from serious infirmities and are liable to be reversed by this Court.
(d) The learned Judge failed to note that provisions of Section 27 and Article 65 of Limitation Act are not at all applicable to the present case on hand. The right extinguished by Section 27 of Limitation Act is the right which the lawful owner has and against whom a claim for adverse possession is made. Therefore, the burden is always on the person who claims exclusive, continuous and undisturbed possession hostile animus to that of the true owner.
Therefore, the entire burden was on the defendants and was required to be established by a consistent course of conduct. Article 65 applies only when a person in actual occupation of the statutory period is in such occupation, in a denial of title of the true owner. The fundamental principle of law is that there can be no adverse possession without animus to prescribe. 32 Paragraph 8 of the written statement would clinch the issue wherein even defendants have admitted that it was only after survey, the authorities found that defendants were in possession of the encroached portion of 27 guntas. Therefore, the learned Judge erred in applying Section 27 and Article 65 of the Limitation Act and therefore, the judgment and decree of the Trial Court in dismissing the suit suffers from perversity and the learned Judge committed an error in dismissing the suit.
30. In view of the above discussions and the findings and conclusions recorded by this Court, I pass the following:
ORDER
i) The appeal is allowed and the judgment and decree dated 01.04.2006 passed in O.S.No.6341/1993 on the file of the VIII Additional City Civil Judge at Bengaluru City is set aside;
ii) The suit is decreed declaring the plaintiffs as absolute owners of Sy.No.380/2 measuring 2 33 acres 14 guntas situated at Kalkere Village, Krishnarajapuram Hobli, Bangalore South Taluk;
iii) The defendants are hereby directed to handover vacant possession of 27 guntas within a period of two months from today;
iv) Office to draw the decree accordingly.
Sd/-
JUDGE CA