Karnataka High Court
Sri.Gurayya S/O Basalingayya ... vs Sri.Jagannath S/O Danappa Kulkarni on 13 December, 2024
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NC: 2024:KHC-D:18181
RSA No. 100271 of 2020
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 13TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
R.S.A NO. 100271 OF 2020 (DEC/INJ)
BETWEEN:
1. SRI. GURAYYA
S/O. BASALINGAYYA MUDAGALMATH,
AGE:71 YEAR.S., OCC. AGRICULTURE,
R/O. SASARAWADA, TQ. SHIRAHATTI,
DIST. GADAG-582120.
2. SRI. SHIVANANDAYYA
S/O. BASALINGAYYA MUDAGALMATH,
AGE: 67 YEAR.S., OCC. AGRICULTURE,
R/O. SASARAWADA, TQ. SHIRAHATTI,
DIST. GADAG-582120.
Digitally signed by
VISHAL NINGAPPA
PATTIHAL 3. SRI. MALLIKARJUN
Location: HIGH
COURT OF
KARNATAKA
S/O. GURUBASAYYA MUDAGALMATH,
DHARWAD BENCH
AGE: 69 YEAR.S., OCC. AGRICULTURE,
R/O. SASARAWADA, TQ. SHIRAHATTI,
DIST. GADAG-582120.
4. SRI. SHIVANANDA
S/O. DANAPPA KULKARNI,
AGE: 82 YEAR.S., OCC. AGRICULTURE,
R/O. SASARAWADA, TQ. SHIRAHATTI,
DIST. GADAG-582120.
5. SRI. RAVINDRA
S/O. DANAPPA KULKARNI,
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RSA No. 100271 of 2020
AGE: 65 YEAR.S., OCC. AGRICULTURE,
R/O. SASARAWADA, TQ. SHIRAHATTI,
DIST. GADAG-582120.
6. SRI. CHANNAVEERAYYA
S/O. DANAPPA KULKARNI,
AGE: 61 YEAR.S., OCC. AGRICULTURE,
R/O. SASARAWADA, TQ. SHIRAHATTI,
DIST. GADAG-582120.
... APPELLANTS
(BY SRI. S.P. KULKARNI, SR COUNSEL FOR
SRI. P.K.SANNINGAMMANAVAR, ADVOCATE;
SRI. S.R.HEGDE, ADVOCATE)
AND:
1. SRI. JAGANNATH
S/O. DANAPPA KULKARNI,
AGE: 67 YEAR.S., OCC. AGRICULTURE,
R/O. SASARAWADA, TQ. SHIRAHATTI,
DIST. GADAG-582120.
2. SRI. SURENDRA
S/O. JAGANNATH KULKARNI,
AGE: 41 YEAR.S., OCC. AGRICULTURE,
R/O. SASARAWADA, TQ. SHIRAHATTI,
DIST. GADAG-582120.
3. CHANAVEERAYYA
S/O. MURIGAYYA MUDAGALMATH,
AGE: 75 YEAR.S., OCC. AGRICULTURE,
R/O. SASARAWADA, TQ. SHIRAHATTI,
DIST. GADAG-582120.
4. SMT. PARVATEVVA
W/O. GURUBASAYYA MUDAGALMATH,
AGE: 75 YEAR.S., OCC. AGRICULTURE,
R/O. SASARAWADA, TQ. SHIRAHATTI,
DIST. GADAG-582120.
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RSA No. 100271 of 2020
5. SRI. KAPPATAYYA
S/O. MALLAYYA MUDAGALMATH,
AGE: 74 YEAR.S., OCC. AGRICULTURE,
R/O. SASARAWADA, TQ. SHIRAHATTI,
DIST. GADAG-582120.
5A. SMT. PARWATEVVA
W/O. KAPPATAYYA MUDAGALMATH,
AGED ABOUT 75 YEAR.S.,
OCC. HOUSEHOLD WORK.
R/O. SASARAWAD, TQ. SHIRAHATTI,
DIST. GADAG-582120.
5B. SRI. VEERAYYA
S/O. KAPPATAYYA MUDAGALMATH,
AGED ABOUT 69 YEAR.S., OCC. AGRICULTURE.
R/O. SASARAWAD, TQ. SHIRAHATTI,
DIST. GADAG-582120.
... RESPONDENTS
(BY SRI. ARAVIND D.KULKARNI, ADVOCATE FOR R1 & R2;
SRI. V.G.BHATM ADVOCATE FOR R5 ( A AND B);
R3-NOTICE SERVED; R4 & R5-DECEASED)
THIS R.S.A IS FILED U/SEC.100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 19.02.2020 PASSED
IN R.A.NO.7/2015 ON THE FILE OF THE I ADDITIONAL
PRINCIPAL FAMILY COURT, GADAG, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 19.12.2014, PASSED IN O.S.NO.220/2003 ON THE
FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, GADAG,
SITTING AT LAXMESHWAR, DISMISSING THE SUIT FILED
FOR DECLARATION AND INJUNCTION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR.S. JUSTICE K.S.HEMALEKHA
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RSA No. 100271 of 2020
ORAL JUDGMENT
1. Defendant Nos.2, 4, 7, 9, 11 and 12 are before this Court, in this Regular Second Appeal, assailing the judgment and decree, passed in R.A. No.7 of 2015, dated 19.02.2020, on the file of the I-Addl. Prl. Family Court, Gadag (for short "the First Appellate Court") reversing the judgment and decree, passed in O.S. No.220/2003, dated 19.12.2014 on the file of the Addl. Senior Civil Judge, Gadag sitting at Laxmeshwar (for short "the trial Court").
2. The parties herein are referred to, as per their rank before the trial Court, for the sake of convenience.
3. The family genealogical tree of the plaintiffs and defendant Nos.9 to 13 is culled out as under: -5-
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4. Defendant Nos.1 to 8 are not related to the family. Suit is one for declaration, declaring that the plaintiffs and defendant Nos.8 to 13 are the owners of the suit properties and for permanent injunction restraining defendant Nos.1 to 8 from disturbing the peaceful possession and enjoyment of the suit properties in any manner and in the alternative, if the Court comes to the conclusion that, the plaintiffs and defendant Nos.9 to 13 are not in possession of the suit properties, possession to be awarded along with future mense profits.
5. Suit properties are the agricultural lands situated at Sasarawad village in Shirhatti taluka, Gadag, which are as under:
R.S. Nos. A-G Assessment Value
(a) 57/1 04-22 08-93 2,00,000-00
(b) 57/2 04-01 07-91 2,00,000-00
(c) 57/3 03-35 07-61 2,00,000-00
(d) 57/4 03-35 07-61 2,00,000-00
PLAINT AVERMENTS:
6. The propositus of the family of the plaintiffs was one Danappa. Defendant No.13 is his wife. Plaintiff No.1 -6- NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 and defendant Nos.9 to 12 are the sons of Danappa and defendant No.13. Plaintiff No.2 is the son of plaintiff No.1. The suit properties bearing R.S. Nos.57/5 and 57/6 originally formed one suit property and was numbered as R.S. No.57, which totally measured 28 acres 21 guntas. That the propositus of the family Danappa was officiating Kulkarni and rendering services, the land bearing R.S. No.57 was given to the family as an Inam land. After the abolition of the village offices, the land resumed to the Government and on application filed for regrant, the Government has regranted the land to the family of Danappa on 31.07.1962 under Order No.WBNSR-2049. That R.S. No.57 was in possession of the family of Danappa and after his death, plaintiff No.1 and defendant Nos.9 to 13 as the class-I legal heirs. That defendant Nos.5 and 8 and one Basalingayya and Gurubasayya are the natural brothers, they are not related to the family of Danappa and the plaintiffs in any manner. Neither they were officiating the village as Sanadi of Village nor R.S. No.57 was given to the family of defendant Nos.5 and 8 or -7- NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 Basalingayya. That defendant Nos.5 and 8 and their brothers Basalingayya and Gurubasayya created a false varadhi and the whole R.S. No.57 is partitioned, under which the suit lands are given to the shares of Basalingayya and Gurubasayya and defendant Nos.5 and 8. The entry under the mutation No.725 on 03.06.1984 is based on a varadhi, under which the suit properties mentioned in the plaint have been entered in the name of defendant No.5, Gurubasayya and defendant No.8. The subdivision and the mutation are illegal and behind the back of the plaintiffs and defendant Nos.9 to 13. The suit properties are the exclusive properties of the plaintiffs' family and defendant Nos.5 and 8 and their brothers have no right, title or interest over the suit properties. WRITTEN STATEMENT:
7. Defendant No.2 filed written statement inter alia denying the plaint averments and contended that, the husband of defendant No.1 and father of defendant Nos.2 to 4 namely Basalingayya has purchased R.S. -8- NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 No.57/1; defendant No.5 has purchased R.S. No.57/2; father of defendant No.7 i.e., Gurubasayya has purchased R.S. No.57/3; and defendant No.8 has purchased R.S. No.57/4 on 22.01.1980 under oral sale from Danappa and all the purchasers have paid Rs.5,000/- each to the original owner and they are in possession of their respective shares.
8. Further, after the death of Basalingayya, his legal heirs i.e., defendant Nos.1 to 4 are in possession and after the death of Gurubasyya, defendant Nos.6 and 7 are in possession, after the death of Basalingayya and Gurubasayya, defendant Nos.1 to 8 are in possession of the suit properties. It is further stated that originally R.S. No.57 was an Inam land and the said land was regranted in the year 1962 in favour of Danappa and Danappa has not executed any registered sale deed in favour of the purchasers, but in the year 1984 the deceased-Danappa has filed a varadhi to the Village Accountant to enter the names of the purchasers in RFR and as such ME No.725 has been certified on 04.07.1984 and Danappa was aware -9- NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 about the said entry, the plaintiffs and defendant Nos.9 to 13 were also aware about the possession of defendant Nos.1 to 8 in respect of the suit properties and they have been not obstructing their possession. The suit of the plaintiff is barred by limitation and further the husband of defendant No.1 and father of defendant Nos.2 to 4 by name Basalingayya, defendant No.5, defendant No.7 and defendant No.8 are the owners of R.S. No.57/1, 57/2, 57/3 and 57/4 and are in continuous and actual possession since 22.01.1980 as owners with knowledge of deceased Danappa and plaintiff No.1 and Defendant Nos.9 to 13 and they have perfected their title over the properties by way of adverse possession.
9. The Written statement filed by defendant No.2 was adopted by defendant Nos.1, 3, 4, 6, 7 and 8. WRITTEN STATEMENT OF DEFENDANT NO.9:
10. Defendant No.9 filed separate written statement admitting the oral sale dated 22.01.1980 in respect of R.S.
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 Nos.57/1, 57/2, 57/3 and 57/4 in favour of Basalingayya, the husband of defendant No.1 and father of defendant Nos.2 to 4, defendant No.5, father of defendant No.7 and Gurubasayya and that since the date of purchase, they are in actual possession of their respective shares. Defendant No.9 admits about the grant of R.S. No.57 in favour of Danappa and about not executing any registered sale deed in favour of the above mentioned purchasers contends that, the varadhi was submitted by Danappa to Village Accountant to enter the name of the purchasers under ME No.725 which was certified. Defendant No.9 contends that from the date of purchase, the defendants are in possession of their respective properties and this was known to the plaintiffs and defendant Nos.9 to 13 and there is no cause of action to file the suit. The L.Rs. of Basalingayya, defendant Nos.1 to 4 are in possession of suit schedule 'A' properties; defendant No.5 is in possession of suit schedule 'B' properties; L.Rs. of defendant Nos.6 and 7 are in possession of suit schedule 'C' properties, defendant No.8 is in possession schedule 'D' properties.
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020
11. The trial Court based on the pleadings, framed following issues:
"1. Whether the plaintiffs prove that plaintiff No.1 and defendant nos.9 to 12 are owners and in lawful possession of suit properties?
2. Whether defendant Nos.1 to 8 have denied plaintiffs title and caused interference into her possession of suit properties?
3. Whether plaintiffs are alternatively proves that plaintiff No.1 and defendant Nos.9 to 13 are illegally dispossessed and they are entitled for recovery of suit properties from defendant nos.1 to 8?
4. Whether defendant Nos.1 to 8 have perfected their right, title and possession of suit properties by way of adverse possession?
5. To what order or decree?"
12. In order to substantiate their claim, plaintiff No.2 examined himself as PW1 examined two witnesses as PW2 and PW3 marked the documents at Exs.P1 to P27. On the other hand, defendant No.4 examined himself as DW1,
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 three witnesses as DW2 to DW4 marked the documents at Exs.D1 to D22.
13. The trial Court based on the pleadings, oral and documentary evidence, arrived at a conclusion that:
(i) The plaintiffs have failed to prove that plaintiff No.1 and defendant Nos.9 to 13 are the owners and in lawful possession of the suit properties.
(ii) Defendant Nos.1 to 8 have perfected their title over the suit properties by way of adverse possession.
The trial Court by the judgment and decree dismissed the suit of the plaintiffs.
14. The plaintiffs preferred appeal before the First Appellate Court. The First Appellate Court, while appreciating the entire oral and documentary evidence independently framed the following points for its consideration:
"1) Whether the trial Court is justified in accepting the contention of the defendants that the defendants have perfected their title by
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 adverse possession thereby dismissing the suit of the plaintiffs?
2) Whether the judgment and decree of the trial Court calls for interference by the hands of this Court?
3) What order or decree?"
15. While answering the points for consideration, the First Appellate Court held that, the defendants have failed to establish the plea of adverse possession and dismissing of the suit by the trial Court warrants interference, by the judgment and decree reversed the judgment of the trial Court and decreed the suit of the plaintiffs.
16. Aggrieved, the defendant Nos.2, 4, 7, 9, 11 and 12 are before this Court in this Regular Second Appeal.
17. Heard the learned Senior Counsel Shri S.P. Kulkarni appearing for Shri P.K. Sanningammanavar, learned counsel for the appellants and Shri Aravind D.Kulkarni, learned counsel for the respondent Nos.1 and 2; Shri V.G. Bhat, learned counsel for
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 respondent Nos.5(a) and 5(b) and perused the materials available on record.
18. Learned Senior Counsel appearing for the appellants would urge the following grounds:
(i) Taking this Court to the prayer in the plaint contends that, the plaintiffs have sought for an alternative prayer of possession, which clearly indicates that the plaintiffs are not in possession of the suit properties and which aspect has been considered by the trial Court and held that the plaintiffs have failed to prove that they are in legal possession over the suit properties and the First Appellate Court totally fell in error in decreeing the suit of the plaintiffs as prayed for.
(ii) That the propositus - Danappa submitted the varadhi to the village accountant to create ME No.725 on 04.01.1994 by virtue of which defendant Nos,1 to 8 are put in possession of the suit properties.
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(iii) That the First Appellate Court fell in error in granting the decree in favour of the plaintiffs only based on the defendants' failure to prove their case without considering that the plaintiffs have to independently prove their title over the suit schedule properties and the weakness of the defendants cannot bring about a decree for the plaintiffs.
(iv) Reliance is placed on the decision of the Co-ordinate Bench of this Court in the case of HANUMANTHAPPA SINCE DEAD BY L.RS. Vs. LEELA1, (for short "HANUMANTHAPPA") wherein the prayer sought for by the plaintiffs are contradictory reliefs and the First Appellate Court could not have decreed the suit, when the plaintiffs have not specified the relief, which they are entitled to and the First Appellate Court merely mentioning the "appeal is allowed" and "the suit is decreed" is not proper.
1 2024 (4) KCCR 4009
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020
(v) Reliance is also placed on the decision of the Apex Court in the case of LAKSHMI RAM BHUYAN VS. HARI PRASAD BHUYAN AND OTHERS2 (for short "LAKSHMI RAM BHUYAN").
(vi) That the First Appellate court has totally fell in error to frame proper points for its consideration as envisaged under Order 41 Rule 31 of CPC.
(vii) That the First Appellate Court has considered the only question of adverse possession pleaded by the defendants and at any rate did not consider the maintainability of the suit on the legal grounds irrespective of the defence of the defendants; and that the suit is barred by limitation under Articles 58 and 65 of the Constitution of India;
(viii) That defendant No.9, the brother of the plaintiffs and defendant Nos.10 and 12 have categorically admitted in their written statement and in their evidence that 2 AIR 2003 SC 351
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 the defendant Nos.1 to 8 are in possession and enjoyment of the suit properties since 1980 and the First Appellate Court has totally fell in error in decreeing the suit of the plaintiffs as prayed for and the judgment of the First Appellate Court suffers from perversity warranting interference under Section 100 of CPC and there arises a substantial question of law to be framed by this Court.
19. Per contra, learned counsel appearing for the respondents justifies the judgment and decree of the First Appellate Court and urges the following grounds:
(i) The title of the plaintiffs is not disputed by defendant Nos.1 to 8 and having admitted the title of the plaintiffs, the plaintiffs need not prove by any further evidence, as admitted fact need not be proved, which aspect was totally overlooked by the trial Court;
(ii) The plea taken by the defendants is the plea of title based on an oral sale by the original propositus -
Danappa and on the other hand also takes up a plea
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 of adverse possession, which are mutually inconsistent and the latter does not begin to operate until the farmer is renounced;
(iii) That the alternative plea of adverse possession by the defendants was unsustainable and the defendants having failed to establish the ingredients of the plea of adverse possession, the First Appellate Court was right in arriving at a conclusion that the plaintiffs are entitled for declaration and injunction;
(iv) The First Appellate Court being the last fact finding Court has rightly assessed the entire oral and documentary evidence and while answering point No.1 has considered that, the plaintiffs have filed the suit for declaration, wherein the ownership of the plaintiffs is not disputed and the plea of adverse possession and title, which were set up by the defendants is failed to be established;
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(v) That the findings of fact recorded by the last fact finding Court does not suffer from any perversity warranting any interference under Section 100 of CPC
(vi) In support of his contention, learned counsel has placed reliance on the decision of the Apex Court in the case of KARNATAKA BOARD OF WAKF VS. GOVERNMENT OF INDIA AND OTHERS3 (for short "KARNATAKA BOARD OF WAKF") and in the case of GOVERNMENT OF KERALA AND ANOTHER VS. JOSEPH AND OTHERS4 (for short "GOVERNMENT OF KERALA AND ANOTHER").
20. This Court has carefully considered the rival contentions of the learned counsel appearing for the parties and perused the materials available on record.
21. Undisputed fact is that, the propositus of the plaintiffs and defendant Nos.9 to 13 was regranted land bearing Sy.No.57 on 31.07.1962.
3 (2004) 10 SCC 779 4 Civil Appeal No.3142/2010, DD 09.08.2023
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22. Defendant Nos.1 to 8 claim title over the suit properties on the following grounds:
(i) That the propositus - Danappa who was regranted Sy.No.57 on 31.07.1962, by way of an oral sale on 22.01.1980 has sold the suit properties to Gurubasayya and Basalingayya;
(ii) That pursuant to the oral sale from Danappa in the year 1994, Danappa filed varadhi to the Village Accountant to enter the names of the purchasers i.e., defendant Nos.1 to 8 in respect of the suit properties under ME No.725, which was duly registered on 04.01.1994 and from 04.01.1994, the plaintiffs were aware that the defendants have perfected their title and are in continuous and peaceful possession of the suit properties as owner and the suit of the plaintiff is barred by limitation.
(iii) That when the defendants admit the title of the propositus i.e., Danappa, nothing was left for the plaintiff to prove that the plaintiff inherited the suit
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 properties from Danappa and were owners of the suit properties. Defendant Nos.1 to 8 set up a plea of adverse possession, it means that defendant Nos.1 to 8 admit the title of the plaintiffs, which aspect was totally overlooked by the trial Court, while dismissing the suit of the plaintiffs.
23. The plea of defendant Nos.1 to 8 are in two folds
(i) that they have acquired their title under oral sale by Danappa; and (ii) that they have perfected their title by way of adverse possession. The plea of title and the plea adverse possession are mutually inconsistent and the latter does not begin to operate until the farmer is renounced. Merely long standing possession over the properties, without denial of title of the true owner cannot convert a permissive possession into an adverse possession and the well settled principle is that the party claiming adverse possession must prove that his possession is "nec vi, nec clam and nec precario", that is, peaceful, open and continuous.
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24. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. 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. Whenever the plea of adverse possession is projected, inherent his plea is that someone else was the owner of the properties. In the instant case, the plea of title and adverse possession pleaded by the defendant Nos.1 to 8 are mutually inconsistent; the Apex Court in the case of KARNATAKA BOARD OF WAKF stated supra has considered the essential ingredients that are necessary for establishing the plea of adverse possession and also held that the plea based on title of the suit properties and plea of adverse possession are mutually, exclusive, inconsistent and the latter does not begin to operate until the former is renounced and at para Nos.11 to 13 has held as under:
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 "11. In the eye of the law, an owner would be deemed to be in possession of a properties so long as there is no intrusion. Non-use of the properties 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 properties and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina, Parsinni v. Sukhi and D.N. Venkatarayappa v. State of Karnataka.) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 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. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma']
12. A plaintiff filing a title suit should be very clear about the origin of title over the properties. He must specifically plead it. (See S.M. Karim v. Bibi Sakina) In P. Periasami v. P Periathambi this Court ruled that:
"Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the properties."
The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar that is similar to the case in hand, this Court held:
"4. As regards the first plea, it is inconsistent with the second plea. Having
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e. up to completing the period his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."
13. As we have already found, the respondent obtained title under the provisions of the Ancient Monuments Act. The element of the respondent's possession of the suit properties to the exclusion of the appellant with the animus to possess it is not specifically pleaded and proved. So are the aspects of earlier title of the appellant or the point of time of disposition. Consequently, the alternative plea of adverse possession by the respondent is
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 unsustainable. The High Court ought not to have found the case in their favour on this ground."
25. The Apex Court in the case of GOVERNMENT OF KERALA AND ANOTHER stated supra has held at 20 and 21 as under:
"20. The principle of adverse possession has been defined by the Privy Council in Perry v. Clissold5 in the following terms:
"It cannot be disputed 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 all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title."
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 5 [1907] A.C. 73
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 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 precario, i.e., adverse to a competitor, in denial of title and knowledge;
(a) In Radhamoni Debi v. Collector of Khulna6, 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 Kishore7 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 he 6 1900 SCC OnLine PC 4 7 AIR 1935 PC 36
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 exercises due vigilance, to be aware of what is happening."
(c) A Bench of three judges of this Court in Parsinni v.Sukhi8 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 India9 (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, 8 (1993)4 SCC 375 9 (2004) 10 SCC 779
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 hostile and continued over the statutory period."
This case was relied on in the case of M. Venkatesh v. Bangalore Development Authority10 (three-Judge Bench), Ravinder Kaur Grewal v. Manjit Kaur11 (three-Judge Bench).
(e) This Court in a recent case of M Siddiq (D) through LRs v. Mahant Suresh Das & Ors.12 (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 10 (2015) 17 SCC 1 11 (2019) 8 SCC 729 12 (2020) 1 SCC 1
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 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 Kumar13 (two-Judge Bench) held that -
"5. A possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession..."
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;
13 (1994) 6 SCC 591
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020
(a) In Gaya Prasad Dikshit v. Dr. Nirmal Chander and Anr.14 (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 for a period of more than 12 years is not enough."
Reference may also be made to Arvind Kumar (supra); Mallikarjunaiah v. Nanjaiah15 (two-Judge Bench); Uttam Chand (supra). 14 (1984) 2 S CC 286 15 (2019) 15 SCC 756
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 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 into possessory title for the said purpose.
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 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 Ram16 (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. Prakash17 (two-Judge Bench) had observed that permissive possession or possession in the absence of Animus possidendi would not constitute the claim of adverse possession. 16 (2007) 9 SCC 641 17 (2009) 13 SCC 229
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020
(d) It was also held in the case of Chatti Konati Rao v.Palle Venkata Subba Rao18 (two- Judge Bench) -
"15. Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed..."
(Emphasis supplied) Referring to the above judgment Subha Rao (supra) this Court has reiterated the cardinality of the presence of Animus possidendi in a case concerning adverse possession in Brijesh Kumar & Anr. v. Shardabai (dead) by LRs.19 (two- Judge Bench).
18 (2010) 14 SCC 316 19 (2019) 9 SCC 369
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 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 Sirthala20 (two-Judge Bench) was that the plea of adverse possession can be used only as a shield by the defendant and not as a sword by the plaintiff. However, the position was changed later by the decision of this Hon'ble Court in the case of Ravinder Kaur (supra) had held that - "... Title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession..."
The position in Ravinder Kaur (supra) was followed in Narasamma & Ors. v. A. Krishnappa (Dead) Through LRs.24 (three-Judge Bench). 21.6 Mere passing of an ejectment order does not cause brake in possession neither causes his dispossession;
20 (2014) 1 SCC 669
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 In Balkrishna v. Satyaprakash21 (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. In State of Rajasthan v. Harphool Singh22 (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 21 (2001) 2 SCC 498 22 (2000) 5 SCC 652
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 a third-party encroacher title where he had none."
Further, in Mandal Revenue Officer v. Goundla Venkaiah23 (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 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. Saravanabava24 (two- Judge Bench):
23
(2010) 2 SCC 461 24 (2004) 1 SCC 551
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 "...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 Maharaj25 (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 Board26 (two-Judge Bench) on the same principle.
21.9 Claim of independent title and adverse possession at the same time amount to contradictory pleas. The case of Annasaheb 25 (2017) 9 SCC 579 26 (2018) 11 SCC 449
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 Bapusaheb Patil v. Balwant27 (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 Gaffar28 (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 27 (1995) 2 SCC 543 28 (1996) 1 SCC 639
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."
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. Revamma29 (two-Judge Bench), it held that initially the burden lied on the landowner to prove his title and title. Thereafter it shifts on 29 (2007) 6 SCC 59
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 the other party to prove title by adverse possession. It was observed: -
"34. The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned : once a party 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 30 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.
30(2014) 16 SCC 731
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NC: 2024:KHC-D:18181
RSA No. 100271 of 2020
[State of Haryana v. Mukesh
31
Kumar (two-Judge Bench)]"
26. In the instant case, defendant Nos.1 to 8
contend that they are in possession of the suit properties from the date they have purchased under an oral sale from Danappa i.e., on 22.01.1980 and further when the deceased Danappa filed varadhi to the Village Accountant to enter the name of the purchasers under ME No.725 was duly effected on 04.01.1994 and the defendants have been continuously in possession from 22.01.1980; if the contention of the defendants is considered, their possession can only be termed as a permissive possession and not by way of adverse possession as contended by the defendants; when the plea of adverse possession is pleaded by the defendants, the limitation starts from the time when the defendants' possession has become adverse to the knowledge of the plaintiffs. In the instant case, the averment is totally absent as to when the possession of the 31 (2011) 10 SCC 404
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 defendants becomes adverse to the knowledge of the plaintiffs.
27. The Apex Court in the case of Narasamma & Ors. vs. A. Krishnappa (Dead) through LRs.32 has held at para Nos.16, 29, 31, 32, 33, 36 and 37, which read as under:
"16. That brought the High Court to the main aspect which resulted in the appeal being allowed i.e. the failure of the appellants herein on their plea of adverse possession. Once again, there is an elaborate discussion on the various judicial pronouncements of this Court on the plea of adverse possession, emphasizing that the success of this plea requires the person claiming the same to prove that he is in possession and that, "his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful dispossession of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period."32
AIR 2020 SC 4178
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020
29. We may also note that on the one hand, the appellants herein have sought to take a plea of bar of limitation vis-à-vis the original defendant claiming that possession came to them in 1976, with the suit being filed in 1989. Yet at the same time, it is claimed that the wife had title on the basis of these very documents. The claim of title from 1976 and the plea of adverse possession from 1976 cannot simultaneously hold. On the failure to establish the plea of title, it was necessary to prove as to from which date did the possession of the wife of the defendant amount to a hostile possession in a peaceful, open and continuous manner. We fail to appreciate how, on the one hand the appellants claimed that the wife of the original defendant, Appellant 1 herein, had title to the properties in 1976 but on their failure to establish title, in the alternative, the plea of adverse possession should be recognised from the very date.
31. The question which confronts us is not the aforesaid, but whether simultaneously a plea can be taken of title and adverse possession i.e. whether it would amount to taking contradictory pleas. In this behalf, we may refer to the four judgments cited by the learned counsel for the respondent herein, which succinctly set forth the legal position.
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020
32. In Karnataka Board of Wakf case, it has been clearly set out that a plaintiff filing a title over the properties 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 properties. 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...."
33. The aforesaid judgment in turn relied upon the judgment in Mohan Lal (Deceased) Thr. LRs, which observed in para 4 as under:
"4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor-in-title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e. up to completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."
36. The possession has to be in public and to the knowledge of the true owner as adverse, and this is necessary as a plea of adverse possession seeks to defeat the rights of the true owner. Thus, the law would not be readily accepting of such a case unless a clear and cogent basis has been made out.
37. We may also note another judicial pronouncement in Ram Nagina Rai v. Deo Kumar Rai (Deceased) by LRs and anr. dealing with a similar factual matrix i.e. where there is permissive possession given by the owner and the defendant claims that the same had become adverse. It was held that it has to be specifically pleaded and proved as to when possession becomes adverse in order for the real owner to lose title 12 years hence from that time."
28. The First Appellate Court being the last fact finding Court has considered point No.1 and answered the contentions raised by the parties. The contention of the
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 learned Senior Counsel that the procedure as envisaged under Order 41 Rule 31 of CPC is not complied, does not hold water as the perusal of the judgment of the First Appellate Court indicates that, the First Appellate Court though didn't frame a specific point for consideration, however while answering Point No.1 has considered all the aspects and reasons for reversal of the judgment of the trial Court.
29. The Apex Court in the in case of Santosh Hazare Vs. Purushottam Tiwari (Deceased) by L.Rs.,33 at paragraph No.15 has held as under:
"15. A perusal of the judgment of the trial court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate court has, in a very cryptic manner, reversed the finding on 33 AIR 2001 SC 965
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi v. Bijendra Narain Choudhary [AIR 1967 SC 1124] ). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (See Madhusudan Das v. Narayanibai [(1983) 1 SCC 35 : AIR 1983 SC 114] ) The rule is -- and it is nothing more than a rule of practice -- that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh [1950 SCC 714 : AIR 1951 SC 120] ) Secondly, while reversing
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one."
30. The First Appellate Court has rightly appreciated the entire oral and documentary evidence and there is no perversity in the judgment and decree of the First Appellate Court. The reliance placed by the learned counsel for the
- 51 -
NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 appellant in the case of LAKSHMI RAM BHUYAN stated supra, this Court has absolutely no quarrel about the settled preposition of law that the operative part of the judgment has to be clear, so that the relief, which has been granted should be in conformity with the findings arrived. The operative portion in the judgment of the First Appellate Court indicates that the suit of the plaintiffs is decreed and declared by arriving at a conclusion that the defendants have failed to establish their possession and that they have perfected their title by way of adverse possession and held that the plaintiffs are in possession of the suit properties. The First Appellate Court has clearly and precisely stated the manner of reliefs by which the plaintiffs are found to be entitled in view of the findings arrived during the course of the Appellate Court's judgment. The decision of the Apex Court in the case of LAKSHMI RAM BHUYAN stated supra is distinguishable and not applicable to the present facts and circumstances of the case.
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020
31. The law is also well settled that the plaintiffs have to succeed on their own legs and not depend upon the weakness of the defendants and the entire burden is casted upon the plaintiffs. In the instant case as stated supra, the title derived by the plaintiffs from Danappa is not in dispute and the defendants when set up a plea of adverse possession, it means that the plaintiffs' title has been admitted and in an unequivocal terms the defendants admitted the title of the plaintiffs. That being so, there was no further burden, which was casted upon the plaintiffs to discharge and the burden shifts upon the defendants to prove that they have perfected their title either by way of title or by way of adverse possession, which aspect has been dealt by this Court in the earlier findings. There is no error committed by the First Appellate Court in decreeing the suit of the plaintiffs and setting aside the judgment and decree of the trial Court.
32. The manner in which the First Appellate Court has considered the entire oral and documentary evidence
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NC: 2024:KHC-D:18181 RSA No. 100271 of 2020 this Court is of the considered view that, the same does not suffer from any illegality or perversity warranting any interference under Section 100 of CPC and no substantial question of law arises for consideration and this Court pass the following:
ORDER
(i) The Regular Second Appeal is hereby dismissed;
(ii) The judgment and decree of the First Appellate Court stands confirmed, holding that the plaintiffs are entitled for declaration and permanent injunction.
SD/-
_____________________ (JUSTICE K.S. HEMALEKHA) VNP / CT: PA LIST NO.: 1 SL NO.: 52