Karnataka High Court
Smt Puttagangamma vs Sri Rangaraju on 6 January, 2023
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A.NO.506 OF 2007 (DEC & INJ)
BETWEEN:
1. SMT. PUTTAGANGAMMA
SINCE DEAD BY LRS
A). SMT. SUBBALAKSHAMMA
W/O H N JAYRAJU,
AGED ABOUT 56 YRS, R/AT NO.104, B BLOCK,
ISRO QUARTERS, VIJAYANAGAR, 2 STAGE,
BANGALORE-40
2. SRI M C NARAYANA RAJU
S/O LATE CHIKKA MUNISWAMY RAJU
AGED ABOUT 51 YRS
3. SRI M. C GOVINDARAJU
S/O LATE CHIKKAMUNISWAMY RAJU
AGED ABOUT 39 YRS
4. SRI M C VASANTHA RAJU
S/O LATE CHIKKAMUNISWAMY RAJU
AGED ABOUT 37 YRS
APPELLANTS NO.2 TO 4 ARE
R/O MYLANAHALLI VILLAGE,
JALA HOBLI, BANGALORE NORTH TALUK.
...APPELLANTS
(BY SRI.NITHESH.K.N, ADVOCATE FOR SRI.K V NARASIMHAN,
ADVOCATE)
2
AND:
RANGARAJU
DEAD BY LRS.
A. SRI.RAMESH RAJU,
S/O LATE RANGA RAJU,
AGED ABOUT 52 YEARS
B. SRI.SRINIVASA RAJU,
S/O LATE RANGA RAJU,
AGED ABOUT 48 YEARS
BOTH ARE R/AT MYLANAHALLI VILLAGE
JALA HOBLI, BANGALORE NORTH TALUK.
C. SMT.RAJALAKSHMI,
W/O LAKSHMIPATHI RAJU,
AGED ABOUT 46 YEARS,
R/AT DODDABAJANEMANE ROAD,
CHICKBALLAPURA TOWN.
(AMENDED V/C/O DTD: 28.02.2018)
...RESPONDENTS
(BY SRI.S.K.NAGARATHNA, ADVOCATE FOR R1(A-C))
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 31.10.2006 PASSED IN
R.A.NO.31/2006 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) &
JMFC, DEVANAHALLI, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGEMENT AND DECREE DATED: 15.1.2005 PASSED IN
OS.NO.276/1992 ON THE FILE OF THE ADDL.CIVIL JUDGE (JR.DN.)
& JMFC, DEVANAHALLI.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The captioned second appeal is filed by the plaintiffs feeling aggrieved by the judgment and decree of the Courts below wherein plaintiff's suit seeking relief of declaration and possession is dismissed by both the Courts.
2. For the sake of brevity, the parties are referred to as per their rank before the trial Court.
3. This Court deems it fit to refer to the family tree as it is relevant for effective adjudication of the controversy between the parties. The family tree is as under:
Muluvagilu Raju |
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| | | | Puttamma Doddamuniswamy Raju Chikkamuniswamy Raju Narasimharaju | |
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| | |
Rangamma Rangaraju Puttarangamma(Pltf No.1)
(Defendant) W/o Chikkamuniswamy Raju
|
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| | |
Narayana Raju Govindaraju Vasantharaju
(Pltf No.2) (Pltf No.3) (Pltf No.4)
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4. The plaintiff No.1 and defendant Rangaraju are brother and sister. Both are children of one Puttamma. The plaintiff No.1 is given in marriage to the brother of Puttamma.
The present plaintiffs have filed the suit seeking possession which is based on title. The plaintiffs contended that the suit land was owned by Chikkamuniswamy Raju and after his death, the plaintiffs being the only class-I heirs i.e., widow and children have inherited the property left behind by Chikkamuniswamy Raju. It is the specific case of the plaintiffs that after death of Chikkamuniswamy Raju, plaintiff No.1 delivered possession to defendant who is none other than her brother on a condition that he would handover the suit land as and when demanded. The plaintiffs alleged that the defendant having misused the trust reposed by the plaintiff No.1, got his name mutated to the revenue records and started acting adversely to the interest of plaintiffs in the month of April 1992 and hence, the present suit.
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5. The defendant, on receipt of summons, tendered appearance and filed written statement and set up adverse title contending that he has perfected his title by way of adverse possession.
6. The plaintiffs and defendant to substantiate their respective claim led in oral and documentary evidence.
7. The trial Court referring to the evidence on record, drew adverse inference against the plaintiffs that though defendant's name was mutated to the revenue records, plaintiffs have not chosen to question those mutations. The trial Court was of the view that if plaintiff No.1 has given a statement indicating that her husband has given 33¼ guntas to the defendant and if they have submitted no objection to change the katha, the Court was of the view that having regard to the conduct of plaintiffs in not securing any document to substantiate their stand that defendant is in permissive possession, the trial Court concluded by holding 6 that defendant has succeeded in proving his title by way of adverse possession. Consequently, suit was dismissed.
8. Feeling aggrieved by the judgment and decree of the trial Court, plaintiffs preferred appeal before the Appellate Court.
9. The Appellate Court referring to the material on record was of the view that plaintiffs have admitted that possession was handed over to defendant two years after the death of first plaintiff's husband. Therefore, Appellate Court was of the view that if plaintiff's husband died in 1967 and if possession was delivered to defendant in 1969, the suit for possession filed by the plaintiffs after 22 years is barred by Article 64. The Appellate Court was also of the view that relief of declaration is covered by Article 58 of Limitation Act. The Appellate Court was of the view that cause of action accrued to the plaintiff in 1985 and therefore, plaintiffs ought to have brought into action by approaching the Court within three 7 years as stipulated under Article 58 of Limitation Act. The Appellate Court though did not concur with the findings of the trial Court in regard to plea of adverse possession, however, proceeded to dismiss the suit on the ground that plaintiff's relief of possession squarely falls under Section 6 of the Specific Relief Act and therefore, the present suit is hit by Article 64 of the Limitation Act. On these set of reasonings, the Appellate Court having partially concurred with the findings of the trial Court has proceeded to dismiss the appeal.
10. This Court vide order dated 24.04.2009 was pleased to admit the appeal on the following substantial questions of law:
"1) When admittedly the plaintiff's husband was the owner of the property, in the absence of any registered document under which the title of the property is transferred to the defendant, whether the Courts below were justified in declining to grant the relief of declaration in favour of the plaintiff?
2) When admittedly the defendant has set up a plea of permissive possession by virtue of mutation 8 entry and voluntary statement made by the plaintiff and her children, whether the defendant's plea of adverse possession is sustainable in the facts of the case?"
11. Heard learned counsel appearing for the plaintiffs and learned counsel appearing for the defendant. Perused the concurrent judgments rendered by both the Courts below. I have also given my anxious consideration to the judgment cited by the learned counsel appearing for the plaintiffs.
12. The plaintiffs have instituted the present suit seeking relief of declaration and consequential relief of possession. The plaintiffs assert and claim to be the absolute owners of the property. It is the specific case of the plaintiffs that suit property measuring 33¼ guntas was admittedly owned by Chikkamuniswamy Raju who is the husband of plaintiff No.1 and father of plaintiff Nos.2 to 4. The plaintiffs traced title by contending that agricultural land bearing Sy.No.77/1 was totally measuring 1 acre 26½ guntas and that 9 husband of plaintiff No.1 - Chikkamuniswamy Raju and his brother Narasimha Raju jointly purchased under registered sale deed dated 18.04.1963. The plaintiffs further pleaded that there was a partition between first plaintiff's husband and his brother and first plaintiff's husband was allotted 33¼ guntas which is the subject matter of the present suit. The plaintiffs are asserting possession by contending that defendant is in permissive possession.
13. The defendant has set up a plea of adverse possession. Para 9(ii) and 9(iii) would be relevant and the same is culled out as under:
"(ii) In the year 1967 the first plaintiff's husband died and after his death, the land was held by said brothers transferred by I.H.R. proceedings into the joint names of first plaintiff and Narasimha Raju. In the year 1969-70 the joint family has been divided the suit schedule land fallen to the share of Chikkamuniswamy Raju and another half has been taken by Narasimha Raju. The plaintiffs have gave the suit schedule lands to the defendant since the defendant and his mother were brought to their family 10 and lived as members of the said family as the defendant and his mother were also intended to live separately. Since then the defendant is in lawful possession and enjoyment of the suit schedule lands as owner thereof. In the year 1972 the defendant and Narasimha Raju intended to dig open well in the middle of the total land held by them by taking loan from the P.L.D. Bank, Devanahalli. Since the khata of the said land was in the joint names of first plaintiff and Narasimha Raju, the loan records are prepared in their names only. After taking loan, defendant and Narasimha Raju dig a well and utilised the water equally and also paid the loan amount equally and loan gets discharged;
(iii) In the year 1985, the plaintiffs and the defendant intends to transfer the khata of the suit schedule lands into the name of the defendant and made application to that effect. The Revenue Officer i.e., the Tahsildar, Devanahalli, after recording the statements of the plaintiffs and Narasimha Raju and after drawing mahazar, changed the khata of the entire land measuring 1 acre and 26 ½ guntas in Sy.No.77/1 of Mylanahalli Village into the joint names of defendant and Narasimha Raju. Since from 1985 and onwards all the revenue records such as R.T.C., Tax Paid Receipts, etc., are standing in the joint 11 names of defendant and Narasimharaju. Defendant submits that even though he was in peaceful possession and enjoyment of the suit schedule land earlier to 1985, i.e., from the date of his separation, the revenue records were stood in the joint names of first plaintiff and Narasimha Raju. But the defendant is in actual possession as owner thereof and paid the loan amount and land revenue in respect of the suit schedule lands without interference whatsoever either from plaintiffs or any other persons."
14. If the averments made in para 9(ii) and 9(iii) are meticulously examined, then this Court is of the view that possession of defendant is clearly a gratuitous possession. As per his own version in the written statement, what can be gathered is that plaintiff No.1 who is the sister delivered possession to defendant. At para 9(ii), defendant claims that he was in lawful possession and enjoyment over the suit schedule property.
15. The concept of adverse possession in India is more than a century old concept of law which is primarily based on 12 three fundamental principles. Firstly, competing rights of ownership between the actual owner and the person taking care of the land. Right of a person taking care of the land and making highest and best use of the land would prevail over the actual title holder of the land who does not take care of the land. Secondly, the title of the land should not be kept in abeyance for a long period of time i.e., a situation should not arise in which the title holder of the land is not known. Thirdly, it is presumed that the actual title holder has abandoned his possessory rights despite knowing that some other person is claiming hostile possession over his land but he chooses to keep quite and not taking any action against the said person as provided under the law.
16. 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 13 of 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.
17. The concept of adverse possession has been well settled by the judicial committee of the Privy Council in 1907 in Perry v Clissold1, wherein it was held that:
"It cannot be disputed that a person in possession of land in the assumed character of 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 of prescribed by the provisions of the statue of Limitation applicable to the case, his right is forever 1 (1907) A.C. 73 14 extinguished and the possessory owner acquires an absolute title."
18. The decision of the Privy Council though not binding on the Supreme Court but still the said decision was upheld by three Judges of the Hon'ble Supreme Court in the case of Nair Service Society vs. K.C. Alexander reported in AIR 1968 SC 1165. The Hon'ble Apex Court in the case of P.T.Munichikkanna Reddy and Others vs. Revamma and Others2 further laid down certain guidelines regarding the enquiry to be held by the Courts while deciding the plea of adverse possession. The Hon'ble Apex Court has held that;
"Therefore, to assess a claim of adverse possession, two-pronged enquiry is required;
1. Application of limitation provision thereby jurisprudentially "willful neglect" element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner. 2 (2007) 6 SCC 59 15
2. Specific Positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distances from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property."
19. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property therefore, the plea on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. In DAGADABAI (DEAD) BY LRS V ABBAS @ GULAB RUSTUM PINJARI3, the Hon'ble Apex Court held that a person, who acquires title by adverse possession, has to first admit the ownership of the true owner over the property before claiming ownership on the strength of adverse possession.
3 (2017) 13 SCC 705 16
20. If defendant has to assert hostile animus, it is equally important to ascertain whether plaintiff has willfully neglected and had abandoned his rights over the suit schedule property despite knowing that defendant was asserting hostile possession. Then the Court has to examine and ascertain whether there was any positive intention on the part of the defendant to dispossess which would effectively shift the title already distanced from the paper owner to the adverse possessor.
21. In the light of the principles discussed supra, now let me examine as to whether defendant has succeeded in making out that he has perfected his title by way of adverse possession. From bare reading of the averments made in the written statement which are culled out supra, two things emerge. One is, defendant admits that property was owned by the husband of plaintiff No.1. All that he has stated in the above culled out paragraph in the written statement is that 17 plaintiffs themselves have given the suit land to the defendant as defendant and his mother lived as family members with the plaintiffs. If these relevant pleadings are looked into, then the requisite ingredients of adverse possession are found to be totally missing in the present case on hand. The physical act of exclusion, possession and animus possidendi to hold as a owner in exclusion to the actual owner are totally found missing in the present case on hand.
22. It is in this background, this Court would find that Appellate Court erred in holding that relief of declaration sought by plaintiffs is barred by limitation. What is lost sight is that there is absolutely no dispute insofar as title of plaintiffs is concerned. The defendant apart from setting up plea of adverse possession has admitted in unequivocal terms that suit land was owned by first plaintiff's husband. This Court is also unable to understand as to how Appellate Court would have unilaterally applied Section 64 of Limitation Act. The present suit for possession is based on title and plaintiffs 18 title is not in dispute. Therefore, the Appellate Court erred in applying Article 64 while non-suiting the plaintiff. The plaintiffs never claimed that they were dispossessed by defendant highhandedly. It is their specific case that after the death of first plaintiff's husband, possession was delivered to defendant and that defendant is in permissive possession, while defendant claims that he has perfected his title by way of adverse possession.
23. It is trite law that mere possession irrespective of the length of time would not in itself constitute adverse possession. To prove adverse possession, defendant has to also place on record to indicate that plaintiffs who are true owners have abandoned their right acknowledging the hostile animus attitude of the defendant. All these significant details and requisite ingredients are found missing in the present case on hand. The finding of the trial Court that defendant is in exclusive possession and enjoyment in his own right and since plaintiffs have not chosen to challenge the mutation, would 19 clearly establish that defendant has perfected his title by way of adverse possession, is not only palpably erroneous but the said conclusion arrived at by the trial Court suffers from serious perversity. The principles governing the plea of adverse possession is not properly considered by the trial Court as well as by the Appellate Court.
24. It is also trite law that a litigant cannot assert title based on entries in the revenue records. Mere entry in the revenue records will also not constitute an act of adverse possession. Having regard to proximity in regard to the relationship between plaintiff No.1 and defendant, what emerges is that under absolute trust and faith, the plaintiff No.1 who had unfortunately lost her husband at a tender age has fallen back on her brothers shoulder and this trust is conveniently exploited and misused by the defendant. These aspects are not dealt by both the Courts below. In that view of the matter, the substantial question of law framed by this 20 Court have to be answered in the negative and against the defendant.
25. For the foregoing reasons, I pass the following:
ORDER
(i) The second appeal is allowed;
(ii) The judgment and decree passed by the Appellate Court dated 31.10.2006 in R.A.No.31/2006 and judgment and decree passed by the trial Court dated 15.01.2005 in O.S.No.276/1992 are set aside. Consequently suit is decreed;
(iii) The defendant is hereby directed to handover possession to plaintiffs.
Sd/-
JUDGE CA