Karnataka High Court
Pandurang S/O. Mahabaleshwar Shet vs Nagaraj S/O. Mahabaleshwar Shet on 27 November, 2024
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NC: 2024:KHC-D:17372
RSA No. 5965 of 2012
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 27TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
RSA NO. 5965 OF 2012 (DEC/INJ)
BETWEEN:
1. PANDURANG S/O. MAHABALESHWAR SHET,
SINCE DIED REPRESENTED BY HIS L.Rs.,
1A. SMT. RAVIKAL W/O. PANDURANG SHET,
AGE: 68 YEARS, OCC. HOUSEHOLD WORK,
R/O. BASTIBAN-LAKSHAMESHWAR,
TQ. LAKSHAMESHWAR, DIST. GADAG.
1B. SMT. MANGALA W/O. VADIRAJ RAYKAR,
AGE: 47 YEARS, OCC. HOUSEHOLD WORK,
R/O. PRAGATHI NAGAR, SHIKARIPUR,
TQ AND DIST. SHIVAMOGGA.
Digitally
signed by
VISHAL
VISHAL NINGAPPA
NINGAPPA
PATTIHAL
PATTIHAL
Date:
1C. SMT. SUDHA W/O. RAGHAVENDRA SHET,
2024.12.19
10:31:13
+0530 AGE: 40 YEARS, OCC. HOUSEHOLD WORK,
R/O. #67, SRI KRISHNA RAPD C T BED
BANASHANKARI, 2ND STAGE,
BENGALURU SOUTH, B-SK II STAGE,
BENGALURU-560070.
2. VADIRAJ S/O. PANDURANG SHET,
AGE: 25 YEARS, OCC: GOLDSMITH,
R/O. LAXMESHWAR, TQ. SHIRAHATTI,
DIST: GADAG-580102.
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NC: 2024:KHC-D:17372
RSA No. 5965 of 2012
3. RAGHAVENDRA S/O. PANDURANG SHET,
AGE: 30 YEARS, OCC. GOLDSMITH,
R/O. LAXMESHWAR, TQ. SHIRAHATTI,
DIST. GADAG-580102.
... APPELLANTS
(BY SRI. S. G. NANDOOR FOR
SRI. S. B. DODDAGOUDAR
AND SRI. A.C. CHAKALABBI, ADVOCATES)
AND:
NAGARAJ S/O. MAHABALESHWAR SHET,
AGE: 55 YEARS, OCC. GOLDSMITH,
R/O. LAXMESHWAR, TQ. SHIRAHATTI,
DIST. GADAG.
... RESPONDENT
(BY SRI. C. S. SHETTAR, ADVOCATE)
THIS RSA IS FILED U/S.100 R/W. ORDER XLII RULE
1 OF C.P.C., AGAINST THE JUDGEMENT & DECREE DATED
25.08.2012 PASSED IN R.A.N0.29/2012 ON THE FILE OF
THE DISTRICT AND SESSIONS JUDGE, GADAG,
DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT
DATED 13.04.2012 AND THE DECREE PASSED IN OS
NO.20/2006 ON THE FILE OF THE ADDITIONAL SENIOR
CIVIL JUDGE, LAXMESHWAR, DECREEING 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 MRS JUSTICE K.S.HEMALEKHA
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RSA No. 5965 of 2012
ORAL JUDGMENT
Assailing the concurrent findings of fact recorded by the Courts below the defendants are before this Court in this regular second appeal.
2. Parties herein are referred to as per their rank before the trial Court, for the sake of convenience.
3. Suit for declaration to declare that the plaintiff is the absolute owner of CTS No.3646/B-16 measuring 531 5/9 square yards, a non agricultural plot (hereinafter referred to as the 'suit property', for the sake of convenience) having purchased the suit property under registered sale deed dated 26.02.1976 and the plaintiff is the lawful owner in possession of the suit property. That the defendant, the elder brother of the plaintiff without any right, got his name entered in the revenue records in respect of the suit property.
4. Defendants contended that the defendants are in possession of the suit property, on 16.07.1992 the -4- NC: 2024:KHC-D:17372 RSA No. 5965 of 2012 plaintiff had given Varadi to the city survey authority to enter the name of the defendants in respect of the suit property, and that the entry in the name of the defendants is not challenged by the plaintiff, that the defendants are the owners of the suit property with the consent of the plaintiff, since from 16.07.1992 till today and they are in possession without any interruption or obstruction peacefully, openly for a period of more than 12 years and they have continued to be in peaceful possession and they have perfected the title by way of adverse possession, defendant No.1 having love and affection towards defendant Nos.2 and 3 entered the name of defendant Nos.2 and 3 in respect of the suit property and their names appear along with defendant No.1.
5. The trial Court based on the pleadings framed the necessary issues which read as under:
"1) Whether the plaintiff proves that he is absolute owner in actual possession and enjoyment of the suit schedule property?-5-
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2) Whether the plaintiff proves that the defendant is obstructing his peaceful possession and enjoyment of the suit schedule property?
3) Whether the defendant proves that he is absolute owner in possession of the suit schedule property way of adverse possession?
4) Whether the defendant proves that for development of suit land he has borrowed loan from M.G. Bank Laxmeshwar and other Financial Institution?
5) Whether the defendant proves that the court fee paid by the plaintiff is insufficient?
6) Whether the plaintiffs are entitled for the reliefs sought for?
7) To what order or decree?"
6. In order to substantiate their claim, the plaintiff examined himself as PW1, one witness as PW2 and marked documents at Exs.P1 to P3. On the other hand, defendant No.1 examined himself as DW1, 2 witnesses as DW2 and DW3 and marked documents at Exs.D1 to D4. -6-
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7. The trial Court based on the pleadings, oral and documentary evidence arrived at the conclusion that:
(i) The plaintiff has proved that he is the absolute owner in actual possession and enjoyment of the suit property.
(ii) The defendants failed to prove that they have perfected their title by way of adverse possession.
By the judgment and decree the trial Court decreed the suit, declared the plaintiff to be the absolute owner of the suit property, restrained the defendants from causing any obstruction over the peaceful possession and enjoyment of the suit property.
8. Aggrieved, the defendants preferred appeal before the First Appellate Court. The First Appellate Court while appreciating the entire oral and documentary evidence confirmed the judgment and decree of the trial Court. Aggrieved by which the defendants are before this Court in this regular second appeal.
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9. Heard the learned counsel appearing for the appellants, learned counsel appearing for the respondent and perused the material on record.
10. Along with the appeal I.A. No.3/2012 is filed seeking to produce the documents mentioned in the list annexed to the application as additional evidence under Order 41 Rule 27 of Code of Civil Procedure, 1908. The documents sought to be produced are as under:
(i) Certified copy of the partition deed along with the typed copy.
(ii) Certified copy of the Varadi.
(iii) The letter dated 10.07.1992
11. According to the averments in the affidavit filed along with the application is that in the year 1976 there was no partition and the property was purchased by the defendant No.1/appellant in the name of the plaintiff and the plaintiff himself has given a Varadi asking the revenue authorities to delete his name and enter his name in the property register card. Further, that as the Varadi is -8- NC: 2024:KHC-D:17372 RSA No. 5965 of 2012 concerned the defendants had produced the property register card which refers to the Varadi given by the plaintiff seeking for deletion of his name and entering the name of the defendants and that the appellants were able to procure the partition deed as well as the Varadi very recently and therefore could not be produced before the trial Court at the time of leading evidence, that the documents sought to be produced along with the application is necessary to establish the fact that the family was joint as on 1976 and mere fact that the property was purchased in the name of the plaintiff does not go to show that it belongs to the plaintiff. The said application is objected by the respondent by filing objections to the I.A., contending that the respondent/plaintiff at no point of time had given any application to enter the name of the appellant/defendant No.1 in respect of the suit property and the mutation entry is created in collusion with the officials on basis of the alleged letter and mere Varadi would not confer right, title or interest without any registered document. -9-
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12. The basis on which he claims possession and right over the suit property, is a mutation entry which is marked at Ex.D3 which indicates that on the basis of Varadi given by the plaintiff to enter the name of the defendant i.e., defendant No.1, the mutation entry under ME number was effected. The documents sought to be produced by the appellants are not necessary for the adjudication of the present appeal as envisaged under Order 41 Rule 27 of Code of Civil Procedure, 1908 (for short, 'CPC'), as the defendant contends that his right over the suit property is based on the Varadi given by the defendants by the plaintiff and which is evidenced by the mutation. Document sought to be produced, would not come to the aid of the appellants as the partition effected in the year 1990, is not disputed by either of the parties. The appellants are not able to substantiate as to how the documents sought to be produced by the appellants would be necessary for the Court to arrive at a proper conclusion and moreover a conclusion in favor of the appellants
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NC: 2024:KHC-D:17372 RSA No. 5965 of 2012 herein. Accordingly, I.A 3/2012 is hereby dismissed as devoid of merits.
13. Learned counsel for the appellants vehemently contends that the Varadi submitted and the mutation entry effected therein, is in light of the partition effected between the plaintiff and defendants and accordingly the name of the defendant No.1 was entered in the revenue records and the property Register. The law is well settled that a mutation entry based on a Varadi would not confer any right, title or interest in respect of an immovable property in favor of a particular person.
14. To enter the name of defendant No.1 in respect of the suit property in absence of any registered document, the entry of the name would not confer any title over the suit property in favor of defendant No.1. The other aspect is that the defendants claims to be in possession over the suit property since the date of the entry of his name in the revenue records and that he has perfected his title by way of adverse possession. The law is
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NC: 2024:KHC-D:17372 RSA No. 5965 of 2012 well settled that the plea of adverse possession has to be specifically claimed, as to when his possession becomes adverse to the knowledge of the true owner.
15. The principles and essential ingredients that are necessary are that:
(a) Possession must be open, clear, continuous and hostile to the claim or possession of the other party.
(b) The essential ingredients must co-exist
(i) nec vi i.e., adequate in continuity
(ii) nec clam l.e., adequate in publicity
(iii) nec precario adverse to a competitor, in denial of title and knowledge, which means the adverse possession is proved only when possession is peaceful, open, continuous and hostile, and merely a long period of possession, does not translate into a right of adverse possession.
16. The Apex Court in the case of Karnataka Board of Wakf vs. Government of India & others1 has 1 (2004)10 SCC 779
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NC: 2024:KHC-D:17372 RSA No. 5965 of 2012 considered the essential ingredients that are necessary for establishing the plea of adverse possession and also held that the plea based on title of the suit schedule property and plea of adverse possession are mutually, exclusive, inconsistent and the latter does not begin to operate until the former is renounced and at para Nos.11 to 13 has held as under:
"11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property 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.
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NC: 2024:KHC-D:17372 RSA No. 5965 of 2012 Venkatarayappa v. State of Karnataka.) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma']
12. A plaintiff filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. (See S.M. Karim v. Bibi Sakina) In P. Periasami v. P Periathambi this Court ruled that:
"Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property."
The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to
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NC: 2024:KHC-D:17372 RSA No. 5965 of 2012 operate until the former is renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar that is similar to the case in hand, this Court held:
"4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e. up to completing the period his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."
13. As we have already found, the respondent obtained title under the provisions of the Ancient Monuments Act. The element of the respondent's possession of the suit property to the exclusion of the appellant with the animus to possess it is not
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NC: 2024:KHC-D:17372 RSA No. 5965 of 2012 specifically pleaded and proved. So are the aspects of earlier title of the appellant or the point of time of disposition. Consequently, the alternative plea of adverse possession by the respondent is unsustainable. The High Court ought not to have found the case in their favour on this ground."
17. The Apex Court in the case of Narasamma & Ors. vs. A. Krishnappa (Dead) through LRs.2 (Narasamma) has taken a similar view that when the plaintiff claiming title over the property must specifically plead when such a plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property. In the instant case, the defendant takes a plea that he is owner of the suit property in light of Varadi submitted by plaintiff, when plea he is owner in possession the same cannot be considered as adverse possession. To claim adverse possession, the person must provide clear evidence that the title was hostile to the true owner. It is a well established principle of law that the permissive possession will never turn into adverse 2 AIR 2020 SC 4178
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NC: 2024:KHC-D:17372 RSA No. 5965 of 2012 possession and the person who basis his title by adverse possession must show by clear and unequivocal evidence that his title was hostile to the true owner and amounted to denial of his title. The Apex Court in the case of Narasamma has held at para No.16, 29, 31, 32, 33, 36 and 37, which read as under:
"16. That brought the High Court to the main aspect which resulted in the appeal being allowed i.e. the failure of the appellants herein on their plea of adverse possession. Once again, there is an elaborate discussion on the various judicial pronouncements of this Court on the plea of adverse possession, emphasizing that the success of this plea requires the person claiming the same to prove that he is in possession and that, "his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful dispossession of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period."
29. We may also note that on the one hand, the appellants herein have sought to take a plea of bar
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NC: 2024:KHC-D:17372 RSA No. 5965 of 2012 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 property in 1976 but on their failure to establish title, in the alternative, the plea of adverse possession should be recognised from the very date.
31. The question which confronts us is not the aforesaid, but whether simultaneously a plea can be taken of title and adverse possession i.e. whether it would amount to taking contradictory pleas. In this behalf, we may refer to the four judgments cited by the learned counsel for the respondent herein, which succinctly set forth the legal position.
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32. In Karnataka Board of Wakf case, it has been clearly set out that a plaintiff filing a title over the property must specifically plead it. When such a plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property. In that context, it was observed in para 12 that"... The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced...."
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-
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NC: 2024:KHC-D:17372 RSA No. 5965 of 2012 A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."
36. The possession has to be in public and to the knowledge of the true owner as adverse, 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."
18. The plea of ownership and adverse possession are totally contradictory to each other, the defendant's
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NC: 2024:KHC-D:17372 RSA No. 5965 of 2012 right over the suit property under a mutation entry has failed to be establish and also the plea of adverse possession, the plaintiff having purchased the property under registered sale deed in the year 1976, is the absolute owner of the suit property. The trial Court on assessing the entire oral and documentary evidence has rightly held that the plaintiff is entitled for declaration and the defendants be restrained from causing any obstruction over the peaceful possession and enjoyment of the suit property. The First Appellate Court being the last fact finding Court has rightly appreciated the entire oral and documentary evidence and affirmed the judgment and decree of the trial Court.
19. The manner in which the Courts below have assessed the entire oral and documentary evidence, this Court is of the considered view that the concurrent findings of facts recorded by the Courts below does not warrant any interference under Section 100 of CPC and no
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NC: 2024:KHC-D:17372 RSA No. 5965 of 2012 substantial question of law arises for consideration in the present appeal. Accordingly, this Court pass the following:
ORDER
(i) The Regular Second Appeal is hereby dismissed.
(i) The judgments of the Courts below stand confirmed.
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(JUSTICE K.S.HEMALEKHA) RH,PJ-para 13 to end CT:PA List No.: 2 Sl No.: 2