Karnataka High Court
Lambani Teekya Naik vs Lambani Neelya Naik By His Lrs on 6 April, 2026
-1-
NC: 2026:KHC-D:5044
RSA No. 5140 of 2008
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 6TH DAY OF APRIL 2026
BEFORE
THE HON'BLE MRS JUSTICE GEETHA K.B.
REGULAR SECOND APPEAL NO. 5140 OF 2008 (-)
BETWEEN
LAMBANI TEEKYA NAIK,
SINCE DECEASED BY HIS LR
LAMBANI BHOJYA NAIK,
S/O. LAMBANI TEKKYA NAIK,
AGE: 29 YEARS, OCC: AGRICULTURE,
R/O. TUMBINAKERI DODDATANDA,
TQ: HADAGALI, DIST: BALLARI-583216.
...APPELLANT
(BY SRI. MAHESH WODEYAR, ADVOCATE)
AND
LAMBANI NEELYA NAIK
BY HIS LRS
Digitally signed
by BHARATHI
HM
Location: HIGH
COURT OF
KARNATAKA,
1. SMT. LAMBANI KESALI BAI,
DHARWAD
BENCH W/O. LAMBANI NEELYA NAIK,
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O. TUMBINAKERI DODDATANDA,
TQ: HADAGALI, DIST: BALLARI-583216.
2. SMT. LAMBANI GANGALIBAI,
W/O. LAMBANI HEMLYA NAIK,
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O. GOVINDPUR THANDA,
TQ: HADAGALI, DIST: BALLARI-583216.
-2-
NC: 2026:KHC-D:5044
RSA No. 5140 of 2008
HC-KAR
3. LAMBANI VALYA NAIK,
S/O. LATE NEELYA NAIK,
SINCE DECEASED BY HIS LR'S
3(A) SMT. SUSHILABAI
W/O. LAMBANI VALYA NAIK,
AGE: 55 YEARS, OCC: HOUSEHOLD,
R/O. TUMBINAKERI DODDATANDA,
TQ: HADAGALI, DIST: BALLARI-583216.
3(B) KRISHNA NAIK
S/O. LAMBANI VALYA NAIK,
AGE: 35 YEARS, OCC: BANK MANAGER,
R/O. TUMBINAKERI DODDATANDA,
TQ: HADAGALI, DIST: BALLARI-583216.
3(C) VINOD
S/O. LAMBANI VALYA NAIK,
AGE: 33 YEARS, OCC: DOCTOR,
R/O. TUMBINAKERI DODDATANDA,
TQ: HADAGALI, DIST: BALLARI-583216.
3(D) LATHA
D/O. LAMBANI VALYA NAIK,
AGE: 30 YEARS, OCC: HOUSEHOLD,
R/O. TUMBINAKERI DODDATANDA,
TQ: HADAGALI, DIST: BALLARI-583216.
3(E) CHETAN
S/O. LAMBANI VALYA NAIK,
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O. TUMBINAKERI DODDATANDA,
TQ: HADAGALI, DIST: BALLARI-583216.
-3-
NC: 2026:KHC-D:5044
RSA No. 5140 of 2008
HC-KAR
3(F) MEGHARAJ
S/O. LAMBANI VALYA NAIK,
AGE: 26 YEARS, OCC: BUSINESS,
R/O. TUMBINAKERI DODDATANDA,
TQ: HADAGALI, DIST: BALLARI-583216.
4. LAMBANI NANYA NAIK,
S/O. LAMBANI NEELYA NAIK,
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O. TUMBINAKERI DODDATANDA,
TQ: HADAGALI, DIST: BALLARI-583216.
...RESPONDENTS
(BY SRI. H.M. DHARIGOND, ADVOCATE FOR
SRI. RAVI HEGDE, ADVOCATE FOR R1 & R4;
SRI. VINAYKUMAR BHAT, ADVOCATE FOR R3(A-F);
NOTICE TO R2 IS HELD SUFFICIENT)
THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING
TO CALL FOR THE RECORDS; SET ASIDE THE JUDGMENT AND
DECREE DATED 30.07.2008 PASSED BY THE PRL. CIVIL JUDGE
(SR. DN.) AND JMFC HOSPET IN R.A. NO.26/2007 AND
CONSEQUENTLY CONFIRM THE JUDGMENT AND DECREE DATED
20/12/2006 PASSED BY THE CIVIL JUDGE (JR.DN.) HADAGALI
IN O.S.NO.74/1997 IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 01.04.2026 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, DELIVERED THE
FOLLOWING:
CORAM: THE HON'BLE MRS JUSTICE GEETHA K.B.
-4-
NC: 2026:KHC-D:5044
RSA No. 5140 of 2008
HC-KAR
CAV JUDGMENT
This is the appeal filed under Section 100 of the Code of Civil Procedure by the appellant/plaintiff praying for setting aside the judgment and decree dated 30.07.2008 in R.A.No.26/2007 on the file of Principal Civil Judge (Sr.Dvn) and J.M.F.C., Hospet; consequently to confirm the judgment and decree dated 20.12.2006 passed in O.S.No.74/1997 on the file of Civil Judge (Jr.Dvn) and J.M.F.C., Hadagalli.
2. Parties would be referred with their ranks, as they were before trial Court for sake of convenience and clarity.
3. Plaintiff has filed the suit before trial Court praying for the relief of declaration that he is the absolute owner of suit schedule property; for possession of suit schedule property directing defendants to deliver vacant possession of suit schedule property in favour of plaintiff; for mesne profits at ₹800/- per annum against defendants -5- NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR from 1993, till handing over possession to plaintiff for Court costs and for such other reasons.
4. The case of plaintiff before trial Court in nutshell is that, plaintiff has purchased the suit schedule property bearing Sy.No.147-A measuring 4 acres 95 cents situated at Thumbinakeri Village within the jurisdiction of Hadagalli village under the registered sale deed dated 03.01.1968 from its previous owner Chigateri Imambee, wife of Hussainsab, resident of Hirehadagali. Defendant No.1 admitted and signed as witness to said registered sale deed. Plaintiff all along is in possession and enjoyment of suit schedule property from the date of purchase i.e. from 1993. Plaintiff has got right, title and interest in or over suit schedule property. Defendant Nos.1 and 2 have no manner of right, title and interest in or over the suit schedule property, but they are illegally and high handedly occupied the suit schedule property since three years and high handedly illegally taking crops every year worth ₹.800/-, excluding costs; therefore, defendant Nos.1 and 2 are liable -6- NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR to repay the mesne profits. Plaintiff has filed criminal case in private complaint No.16/96 against defendant Nos.1 and 2 and one Kesali Bai which is pending for consideration. On 08.09.1992, defendant No.1, clandestinely got his name entered in register of sale deed and record of rights and purchased the suit land from one Sri.Huchi Dodda Guddappa, who is not the real owner of suit schedule property. Defendants are not in possession of suit schedule property at any time, till 1992. The alleged sale deed of defendant No.1 is not binding on plaintiff as he is not party to it. The first defendant's name appeared in record of rights nominally without hearing an enquiry by the revenue authorities. Thus, those entries are not binding on plaintiff. Hence, the suit for appropriate reasons.
5. After filing the suit, defendant Nos.1 and 2 appeared through their counsel and defendant No.2 filed his written statement, which is being adopted by defendant No.1. In the written statement, defendant No.2 has denied the entire plaint averments including the purchase of suit -7- NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR schedule property by plaintiff in the year 1968, he is one of the attestors to it, etc. He contended that, at no point of time, plaintiff is in possession of suit schedule property up to 1993 as contended by him. Defendant No.1 has purchased suit schedule property and Sy.No.147-B measuring 3 acres 90 cents which are situated in one block from the erstwhile owner Sri.Huchi Dodda Guddappa for a sum of ₹.600/- under a registered sale deed dated 06.03.1961. Soon after such purchase, Patta Book is mutated into the name of defendant No.1. Defendant Nos.1 and 2 have all along enjoying the suit schedule property in their own right, title and interest. In the subsequent partition, defendants have got these two properties to their share. The government recognized their rights and issued a Patta Receipt Book. The record of rights also revealed that, defendants are in possession of it. The plaintiff has not asserted his right over suit schedule property before defendants and never demanded possession with defendants. Even though, plaintiff contended that, he has -8- NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR purchased the suit schedule property, he has not made any efforts to get its possession. He has not prayed for change of mutation or RTCs' into his name, till 1992. Only in the year 1992, plaintiff got changed suit schedule property into his name in revenue records, which is challenged by defendants in Appeal No.44/1992 before the Assistant Commissioner who has set aside the matter and remanded for fresh disposal to Tahasildar Hadagalli. The proceedings before Tahasildar are closed after plaintiff instituted the present suit. The change of Patta under No.6/92 and entry of name of plaintiff in record of rights is null and void. Defendants are in actual possession and enjoyment of suit schedule property since 06.03.1961, openly, exclusively to the knowledge of all including the plaintiff as of right and thereby acquired right, title and interest over suit schedule property even by law of adverse possession. Plaintiff was not in possession of suit schedule property within twelve years prior to filing of the suit and no steps were taken for declaration of his alleged right, within the prescribed period. -9-
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR Thus, the suit is barred by law of limitation. Earlier plaintiff has filed O.S.No.151/1994 against one Nanyanaik and against these defendants for the relief of declaration of his alleged right over suit schedule property and to deliver vacant possession of portion of the lands from defendants. Later plaintiff has withdrawn said suit with liberty to file fresh suit. Plaintiff contended in said suit that defendant Nos.1 and 2 are in illegal occupation of portion of the property since 1993 and they were taking yields worth ₹.800/-. Plaintiff is not definite about the declaration of alleged right either in respect of suit schedule property or a portion of it. The suit is bad for non-joinder of necessary parties. All along plaintiff is aware about possession of defendants' over suit schedule property, since from the date of sale deed dated 06.03.1961 in their own right, title and interest. Hence, prayed for dismissal of suit with costs.
6. Based on these pleadings, the trial Court has framed the following issues:
- 10 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR
1. Whether the plaintiff proves that his title and ownership over the suit property?
2. Whether the plaintiff proves that he was dispossessed from the suit property prior to 3 years from the date of suit?
3. Whether the plaintiff proves that the defendants are liable to pay mesne profits of Rs.800/- per year?
4. Whether plaintiff proves that the sale deed obtained by 1st defendant from one Hucha Dodda Guddappa is not binding on him as pleaded in para No.7 and 8 of the plaint?
5. Whether the plaintiff is entitled for the relief's sought for?
6. Whether the 2nd defendant proves that the 1st defendant is the owner of suit property and in the partition, the suit property fell to the share of 2nd defendant as pleaded in para 5 of his written statement ?
7. Whether the 2nd defendant proves that defendants have perfected their title over the suit property by adverse possession as pleaded in para No.7 and 8 of written statement?
- 11 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR
8. What is the effect of O.S.No.151/94 as pleaded in para 9 of written statement?
9. To what relief the parties are entitled to?
10. What order or decree?
7. After framing of issues, recording evidence and hearing arguments, the trial Court has partly decreed the suit declaring that plaintiff is the absolute owner of suit schedule property directing defendants to deliver possession of suit schedule property to plaintiff within 30 days from the date of judgment and further held that plaintiff is entitled for mesne profits from the date of suit, till delivery of possession to be ascertained under Order XX Rule 12 C.P.C.
8. During pendency of the suit, plaintiff and defendant No.2 died and their legal representatives are brought on record.
9. Aggrieved by said judgment and decree, defendants have filed R.A.No.26/2007. After hearing arguments of both sides, the First Appellate Court allowed
- 12 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR the appeal and reversed the judgment and decree of trial Court and thereby, dismissed the suit of plaintiffs.
10. Aggrieved by the same, legal representatives of plaintiff/appellant have filed the present appeal.
11. After filing the appeal, at the time of admitting this appeal, following substantial question of law would arose:
Whether the finding recorded by the Trial Court that the defendants have perfected their title to the suit property by adverse possession is contrary to the law laid down by the Supreme Court in T. Anjanappa Vs. Somalingappa [(2006) 7 SCC 570]?.
12. Heard argument of both sides.
13. The substantial question of law is reformulated as follows:
"What would be the nature of possession of defendants who entered into possession under invalid deed of transfer (sale deed of 1961) and if such person continues possession for a period more than 12 years i.e., prescribed limitation to file a suit
- 13 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR for possession, whether such person would acquire title by adverse possession?"
14. After reformulation of substantial question of law, heard arguments of both sides.
15. The main contention of plaintiff/appellant is that plaintiff is the owner of suit schedule property having purchased the same under registered sale deed dated 03.01.1968 from its erstwhile owner Chigateri Imambee. Said Chigateri Imambee has purchased the same under registered sale deed dated 05.01.1953 from its owner Lambani Nanya Naik. Since from the date of purchase, the plaintiff was in possession of suit schedule property. Defendant No.1 contended that, he purchased the same from its erstwhile owner Sri.Huchi Dodda Guddappa under registered sale dated 06.03.1961. However, both trial Court and First Appellate Court held that the said Huchi Dodda Guddappa had no right, title or interest in or over suit schedule property to convey the same to defendant No.1. Further, defendant No.1 or his legal representatives and
- 14 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR defendant No.2 have not filed Counter-Claim or Cross- Objection or Cross-Appeal to the second appeal. Thus, the ownership of plaintiff is established. Once the ownership of plaintiff is established, the possession of defendants over suit schedule property would be that of trespasser and he will not have any right, title and interest over suit schedule property. Defendants have taken alternative plea of adverse possession in the written statement. Even though they have taken such plea, defendant No.1 and 2 never admitted the ownership of plaintiff over suit schedule property. Without admitting the ownership of plaintiff, defendants cannot claim the relief of adverse possession.
16. Furthermore, D.W.2-defendant No.2 in his examination-in-chief has deposed that plaintiff does not know about the cultivation by defendants and even the villagers also do not know it. Thus, allowing the appeal by the First Appellate Court and dismissing the suit is erroneous.
- 15 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR
17. Only through Exs.P.15 and P.18, for the first time, plaintiff came to know about possession of defendants over suit schedule property. Hence, from the date of knowledge, suit is filed within 12 years and thus, suit is not barred by Article 65 of the Limitation Act, 1963.
18. Further, the finding of the First Appellate Court that suit is bad for non-joinder of necessary parties is incorrect. Earlier suit is filed against 4 defendants and it was withdrawn with a liberty to file fresh suit as defendant Nos.1 and 2 are in possession, the plaintiff has filed the suit only against defendant Nos.1 and 2 and thus, the finding of the First Appellate Court that the suit is bad for non-joinder of necessary parties is also erroneous. In this regard, learned counsel for appellants relied on following citations:
1) T. Anjanappa and others Vs. Somalingappa and another reported in (2006) 7 SCC 570
- 16 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR
2) Neelam Gupta and others Vs. Rajendra Kumar Gupta and another reported in 2024 SCC OnLine SC 2824
3) Karnataka Board of Wakf Vs. Government of India and others reported in (2004) 10 SCC 779
4) Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbahi Harijan and others reported in (2009) 16 SCC 517
5) State of U.P. through Estate Officer Vs. 1st Addl. District Judge, Lucknow and others reported in 2013 SCC OnLine All 13736
19. Learned counsel for respondents Sri. H. M. Dharigond would submit that since 1961, defendant Nos.1 and 2 are in possession of suit schedule property based on the sale deed executed by Sri.Huchi Dodda Guddappa in favour of defendant No.1. RTCs. were standing in the name of defendant No.1 from the date of the said sale. Furthermore, the said sale by Huchi Dodda Guddappa is entered in the Encumbrance Certificate. Thus, in the year
- 17 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR 1961, defendant No.1 was put in possession of the suit schedule property by Huchi Dodda Guddappa; Whether rightly or wrongly, defendant No. 1 was put in possession of the said property. Defendant No.2 is none other than the son of defendant No.1, and in the partition, the said property was fallen to the share of defendant No.2. The plaintiff is aware of the possession of defendants in the suit schedule property. Moreover, registration of a document is notice to everyone, including the plaintiff and his vendor.
20. Within 12 years from 1961, plaintiff and his vendor have not filed any suit to claim possession of the suit schedule property. As per Section 27 of the Limitation Act, 1963, the right, if any, of the plaintiff is extinguished, and he cannot file any suit for possession of the suit schedule property after 12 years from dispossession. However, in the instant case, plaintiff was never put in possession of the suit schedule property because, according to the plaintiff, he purchased it in the year 1968, whereas defendant No.1 was in continuous possession of the
- 18 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR property from 1961 onwards. Hence, vendor of the plaintiff never put plaintiff in possession of the suit schedule property. Therefore, the suit is apparently barred by limitation.
21. In this regard, he relied on the judgment of a Coordinate Bench of this Court reported in the case of M. Abdul Rasheed vs. Shivappa1 and prayed for dismissal of the appeal.
22. With this background, the contentions raised by both sides are to be analysed.
23. The contention of plaintiff is that he has purchased suit schedule property under registered sale deed dated 03.01.1968 from its erstwhile owner Chigatery Imamabee. Both the trial court and first appellate court have concurrently held that plaintiff has purchased the property from its erstwhile true owner and defendants failed to establish their contention that the vendor of defendant 1 HCR 2011 Kant 624
- 19 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR No.1 Huchi Dodda Gudappa was the real original owner of the property to sell the same to defendant No.1.
24. The basic principle of law is that the seller can sell/alienate the rights which he possesses on the property to purchaser. He cannot sell the title better than what he possesses.
25. Defendants contended that from the date of sale in favour of defendant No.1, the suit schedule property was mutated into the name of defendant No.1 and his name continued in the RTCs. till there was partition between defendant Nos.1 and 2. After such partition, revenue entries continued in the name of defendant No.2, till 1992. In the year 1992, plaintiff has raised the revenue dispute regarding change of mutation and thus, some revenue proceedings have taken place and for a limited period, name of plaintiff entered in revenue records only after 1992 and not prior to that. However, they have produced RTCs. from 1985-86 onwards and not from 1961 onwards to substantiate their above contention.
- 20 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR
26. Furthermore, plaintiff has prayed for possession of suit schedule property from defendants contending that since 3 years prior to filing of the suit, defendants have trespassed into suit schedule property and take its possession. However, no document is produced to show that at the time, what resistance plaintiff has made for dispossessing him.
27. According to plaintiff, his vendor Chigateri Imambee has purchased suit schedule property from erstwhile owner Neelya Naik.
28. Defendants contended that they have purchased suit schedule property along with another survey number property from one Huchi Dodda Guddappa in the year 1961. Since then, they are in possession of it. However, defendants do not know anything about the title of the vendor of D.W.1. How the vendor of defendant No.1 got suit schedule property is not known to defendants. Even though, defendants have taken this plea that they are in possession of suit schedule property since 1961, they have not
- 21 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR established the same by producing RTCs since 1961 onwards. On the other hand, they have produced RTCs only from 1985-86 onwards.
29. Defendants have taken the plea of adverse possession. However, contrary to said plea, D.W.2 has deposed in his examination-in-chief that the cultivation by defendants is not known to plaintiff or villagers.
30. D.W.2 is the son of defendant No.1. However, he personally does not know anything about the sale. His evidence is that defendants are the absolute owners of suit schedule property. When it is the contention and evidence of defendants that they are absolute owners of suit schedule property based on the sale deed of 1961 and failed to establish the ownership of their vendor; definitely, they cannot be declared as owners of suit schedule property . At the same time, they have failed to establish the adverse possession.
31. The plaintiff has filed the suit earlier to present suit against defendant Nos.1 and 2 and others and has
- 22 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR withdrawn it with a liberty to file fresh suit and then, he has filed the present suit against defendant Nos.1 and 2 contending that it is defendant Nos.1 and 2 are in possession of it and not the other defendants of the earlier suit.
32. Defendants have taken the plea of adverse possession and they have taken it only as an alternative plea. Their plea is that, they have purchased the property from Huchi Dodda Guddappa and thus, they are the owners of the property. Thus, defendants have not at all admitted that plaintiff or his vendor Chigateri Imambee was owner of suit schedule property at any point of time. The defendants at one stretch claim that they are the owners of the property and at another stretch claim that they have perfected their title by law of adverse possession.
33. With this background, the citations relied by both sides are to be looked into. The citations relied by learned counsel for appellants are as follows:
- 23 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR
34. The judgment of the Hon'ble Apex Court in T. Anjanappa and others Vs. Somalingappa and another2, in paragraph Nos.12, 14, 19 and 20, reads as follows:
"12. The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the 2 (2006) 7 SCC 570
- 24 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR owner's right excluded him from the enjoyment of his property.
14. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to be adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful owner's title e.g. trustees, guardians, bailiffs or agents. Such persons cannot set up adverse possession:
19. In Halsbury's Laws of England, 1953 Edn., Vol. I it has been stated as follows:
"At the determination of the statutory period limited to any person for making an entry or bringing an action, the right or title of such person to the land, rent or advowson, for the recovery of which such entry or action might have been made or brought within such period is extinguished and such title cannot afterwards be reviewed either by re-entry or by subsequent acknowledgment. The operation of the statute is merely negative, it extinguishes the right and title of the dispossessed owner and leaves the occupant with a title gained by the fact of possession and resting on the
- 25 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR infirmity of the right of the others to eject him."
20. It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."
35. The judgment of the Hon'ble Apex Court in Neelam Gupta and others Vs. Rajendra Kumar Gupta
- 26 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR and another3, in paragraph Nos.43 and 45, reads as follows:
"43. In the case on hand, the evidence on the part of the defendants/appellants herein would reveal that instead of establishing 'animus possidendi' under hostile colour of title they have tendered evidence indicating only permissive possession and at the same time failed to establish the time from which it was converted to adverse to the title of the plaintiff which is open and continuous for the prescriptive period.
44. In M. Siddiq's case (supra) paragraphs 1142 and 1143 assume relevance and they, in so far as relevant to this case, run as under: -
"1142. A plea of adverse possession is founded on the acceptance that ownership of the property vests in another against whom the claimant asserts a possession adverse to the title of the other. Possession is adverse in the sense that it is contrary to the acknowledged title in the other person against whom it is claimed. Evidently, therefore, the plaintiffs in Suit 4 ought to 3 2024 SCC OnLine SC 2824
- 27 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR be cognizant of the fact that any claim of adverse possession against the Hindus or the temple would amount to an acceptance of a title in the latter. Dr Dhavan has submitted that this plea is a subsidiary or alternate plea upon which it is not necessary for the plaintiffs to stand in the event that their main plea on title is held to be established on evidence. It becomes then necessary to assess as to whether the claim of adverse possession has been established.
1143. 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 claim 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 pleadings and second by leading sufficient evidence. Evidence, it is well settled, can only be adduced with
- 28 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR reference to matters which are pleaded in a civil suit and in the absence of an adequate pleading, evidence by itself cannot supply the deficiency of a pleaded case."
45. Upon considering the evidence on the part of the appellants herein (the defendants), we have no hesitation to hold that the requirements to co-exist to constitute adverse possession are not established by them. So also, it can only be held that the reckoning of the period of limitation from the date of commencement of the right of ownership of the plaintiff over the suit land instead of looking into whether they had succeeded in pleading and establishing the date of commencement of adverse possession and satisfaction regarding the prescriptive period in that regard, was rightly interfered with, by the High Court."
36. The judgment of the Hon'ble Apex Court in Karnataka Board of Wakf Vs. Government of India and others4 in paragraph No.11, reads as follows: 4
(2004) 10 SCC 779
- 29 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR "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. Venkatarayappa v. State of Karnataka reported in (1997) 7 SCC 567)] Physical fact of exclusive possession and the animus possidendi to hold as
- 30 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR 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 reported in (1996) 8 SCC 128] "
37. The judgment of the Hon'ble Apex Court in Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbahi
- 31 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR Harijan and others5 in paragraph Nos.29 and 30, reads as follows:
"29. We deem it proper to reproduce the relevant portion of the judgment in Revamma case: (SCC p. 79, paras 51-52) "51. Thereafter the applicants moved the European Commission of Human Rights (ECHR) alleging that the United Kingdom law on adverse possession, by which they lost land to a neighbour, operated in violation of Article 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms ('the Convention').
52. It was contended by the applicants that they had been deprived of their land by the operation of the domestic law on adverse possession which is in contravention with Article 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms ('the Convention'), which reads as under:
'Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions 5 (2009) 16 SCC 517
- 32 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.' "
30. Reverting to the facts of this case, admittedly, the appellants at no stage had set up the case of adverse possession, there was no pleading to that effect, no issues were framed, but even then the trial court decreed the suit on the ground of adverse possession. The trial court judgment being erroneous and unsustainable was set aside by the first appellate court. Both the first appellate court and the High Court have categorically held that the appellant has miserably failed to establish title to the suit land, therefore, he is not entitled to the ownership. We endorse the findings of the first appellate court upheld by the High Court."
- 33 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR
38. The judgment of the Hon'ble Apex Court in State of U.P. through Estate Officer Vs. 1st Addl. District Judge, Lucknow and others6 in paragraph Nos.163 and 164, reads as follows:
"163. In Maharaja Sir. Kesho Prasad Singh Bahadur (AIR 1937 PC 69) (supra), it was held that in order to obtain a favourable finding of adverse possession, one must have to satisfy all the qualities of adequacy, continuity and exclusiveness. Reliance was placed on Kuthali Moothavur v. P. Kunharankutty, (AIR 1922 PC 181).
164. Looking the matter in hand in the light of discussion, binding precedents and exposition of law, as referred to and discussed above, in my view, by no stretch of imagination, it can be said that either there existed appropriate pleadings to attract plea of adverse possession or that requisite facts to attract period of limitation so as to confer title upon respondents 3 and 4 or their ancestors are there on record. The very necessity of proving possession nec vi nec clam nec 6 2013 SCC OnLine All 13736
- 34 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR precario is absent. Respondents 3 and 4 nowhere have pleaded that possession was hostile to the owner of the property in question and they had intention to hold the land in question with an intention to possess him against interest of true owner. The plea of adverse possession is not a pure question of law but a blended one of fact and law as held in Karnataka Board of Wakf (supra). The person claiming adverse possession should show:--
(a) On what date he came into
possession,
(b) What was the nature of his
possession,
(c) Whether factum of possession
was known to other party.
(d) How long has his possession
has continued.
(e) His possession was open,
undisturbed and hostile to
the owner.
165. A person pleading adverse
possession has no equities in his favour. Since he is trying to defeat the rights of true owner, therefore, it was for him to clearly plead and
- 35 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR establish all facts necessary to establish his adverse possession. It is of utmost importance that one has to plead and prove that his possession was adverse to the true owner."
39. The learned counsel for respondents relies on the judgment of Hon'ble Apex Court in Alla Baksh Vs. Mohd. Hussain7 in paragraph Nos.9 and 10, reads as follows:
9. Section 27 of the Limitation Act provides that on the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. A perusal of the Section per se reveals that this Section applies and controls the operation of the right to the property in cases, where the period of limitation over suit for possession of the property expires and suit is not filed. It provides that right to property of person shall be extinguished when it provides, as to when the right of the person to his property shall extinguish and in what cases it shall extinguish. The earlier part of the Section reveals that if there is a cause of action for a 7 I.L.R. 1996 KAR 1340
- 36 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR person to file a suit for possession and the suit for possession is not filed by him either on the basis of title or on the basis of possession and later dispossession, if the period of limitation prescribed hereof expires without suit being filed, then the right, title and interest of that therein shall extinguish. This Section provides an exception to the general principle of law that limitation bars the remedy only, but, does not extinguish the right, but, so far as Section 27 is concerned, it expressly provides that when there exists a cause of action in favour of a person to file a suit for possession, then, if the suit is not filed within a period of limitation prescribed, and the period of limitation stands determined, then not only period of limitation come to an end, but, his right will also comes to an end and it is to stand extinguished. The cases, where, the possession of the defendant becomes adverse to the plaintiff, it means that title of the owner of the property would extinguish on the expiry of the period of 12 years, in cases covered by Article 65, if the suit for possession had not been filed by the plaintiff, that is, the owner of the property for possession within that period. The question is, when can the possession be said to be
- 37 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR adverse? This has been dealt with in many cases.
10. Simply possession for 12 years may not become adverse. The possession must for 12 years be continuous possession and it must be hostile in its nature."
40. The learned counsel for respondents relies on the judgment of Hon'ble Apex Court in Jose Vs. Ramakrishnan Nair Radhakrishnan and others8 in paragraph No.11, reads as follows:
"11. We may in this connection point out that Ext. B3 was executed in the year 1959.
Suit was instituted only in the year 1982, after more than 23 years praying for recovery of possession. Claim was resisted stating that the suit itself was barred by law of limitation.
Counsel for the plaintiff submitted that the suit is not barred by law of limitation since first defendant obtained possession of the property 8 2003 SCC OnLine Ker 301
- 38 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR only in 1974. Reference was also made to the decision in Kumara Pillai v. Velappan Pillai (1968 Ker LT 695). Period of limitation to file the suit starts from the date of Ext. B3. We have already held that Chempakakutty Amma was in possession of the property and therefore Ext. B3 was validly executed. This is a case where first defendant and the assignee are in possession of the properties for more than two decades and have effected valuable improvements in the property. Since the property was already parted with under Ext. B3 the period of limitation has to be reckoned from the date of Ext. B3, that is 19-9-1959 and hence the suit is barred by law of limitation.
Further since Ext. B3 was executed by the female daughter she is incompetent to execute Ext. A1 settlement deed dated 19-11-1959 and therefore to be ignored. Consequently we are of the view plaintiffs are not entitled to any of the reliefs prayed for in the suit. We therefore
- 39 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR allow the appeal, set aside the judgment of the Court below. Parties would bear their respective costs."
41. The facts and circumstances of the present case and said case differ.
42. The learned counsel for respondents relies on the judgment of Co-Ordinate Bench of this Court in M. Abdul Rasheed Vs. V.L. Shivappa9 in paragraph No.17, reads as follows:
"17. Now, coming to the question with regard to the limitation, it is the contention of the learned counsel for the plaintiffs that Article 65 of the Limitation Act applies to and that suit has been filed within the limitation period. As could be seen from Article 65 of the Limitation Act, the suit for possession of immovable property can be filed within 12 years from the date when the possession of the defendant becomes adverse to the plaintiffs. Though the Lower Appellate Court held that the suit instituted is well within the time, the view 9 HCR 2011 Kant.624
- 40 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR expressed is incorrect as the plaintiffs never instituted the suit for possession of the property even when it was standing in the name of defendants 2 and 3. It is relevant to note that as per the claim made by the plaintiffs, Abdul Sattar was the owner of the suit property prior to 1932 and that he had given this property to Jahira Bi, his second wife under the mahar sale deed Ex.P.3 and if Jahira Bi is to be the absolute owner of the suit property and if it was not in her possession all along since from the date of Ex.P.3. the possession of defendants 2 and 3, would be adverse to the interest of Jahira Bi in the suit land. Therefore, even if Article 65 is applicable to the facts, the suit instituted is not in time. Even otherwise, if the provisions of Section 27 of the Limitation Act is perused, Jahira Bi gets a right to possession of the property from the date of Ex.P.3. Neither Jahira Bi nor the plaintiffs ever instituted any suit for possession right from 1932 onwards till the property was sold by defendants 2 and 3 in favour of the 3rd defendant. This inaction on the part of the plaintiffs to take the possession extinguishes their right in the property and thereby even under Section 27 of the Limitation Act, the
- 41 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR plaintiffs have no remedy to get the possession and the suit deserves to be dismissed on this count as well."
43. On careful perusal of all the above citations, to establish the title based on law of adverse possession, one has to prove the following two ingredients:
i) Possession for a statutory period of 12 years openly, continuously, without any obstruction to the knowledge of every one including plaintiff;
ii) Animus possidendi, the hostile intention of the possessor possessing the property against true owner.
44. Thus, if defendants have taken the plea of adverse possession, first they have to admit that plaintiff is the owner of the suit schedule property, but in the instant case, they are disputing the ownership of plaintiff over suit schedule property. Defendants have to plead and prove that from which date, their possession become adverse to the
- 42 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR interest of real owner. However, in the instant case, there is no such plea and proof.
45. In the instant case as discussed above, defendants contended that they came to be in possession of suit schedule property based on the sale deed by one Huchi Dodda Guddappa who was not having title over the suit schedule property as held by trial Court as well as First Appellate Court. Hence, their possession never became hostile to the interest of plaintiff. Furthermore, D.W.2 in his examination- in-chief itself has categorically deposed that the possession of defendants over suit schedule property is not known to plaintiff and to villagers. Under these circumstances, they have not established the possession over suit schedule property openly for a period of 12 years and their possession became hostile to the interest of real owner. Even defendants have produced the RTCs. from 1985-86 onwards and not from 1961 onwards. Hence, defendants also failed to establish their continuous possession of suit schedule property for a period of 12 years
- 43 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR and they have also failed to establish the animus possidendi.
46. On reading of Article 65 of the Limitation Act, 1963, the period of limitation to file a suit for possession begins to run from the date of hostile intention of defendants against the true owner. This hostile intention can be gathered from the circumstances of the case.
47. In the instant case, as discussed above, the defendants have never admitted the ownership of plaintiff or his vendor over suit schedule property at any point of time; on the other hand, they claim ownership over the property based on title and not on adverse possession. Defendants failed to establish their title over suit schedule property . As discussed above, the defendants failed to aver and prove the plea of adverse possession in a proper manner. Hence, at no point of time, the possession of defendants became adverse to the interest of real owner- i.e., plaintiff. Hence, the period of limitation does not run against plaintiff. Hence, the suit is not barred by law of
- 44 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR limitation. Thus, the finding of First Appellate Court that defendants have established their continuous possession for a period of 12 years and established hostile intention towards plaintiff is erroneous and they have perfected their title by law of adverse possession is incorrect and improper and it requires interference. Accordingly, the substantial question of law is answered in favour of appellants and this Court proceeds to pass the following:
ORDER
i) The appeal filed under Section 100 of C.P.C. is allowed by setting aside the judgment and decree dated 30.07.2008 in R.A.No.26/2007 on the file of Principal Civil Judge (Sr.Dn.) & J.M.F.C., Hospet;
by confirming the judgment and decree dated 20.12.2006 in O.S.No.74/1997 on the file of Civil Judge (Jr.Dn.) & J.M.F.C., Hadagalli.
- 45 -
NC: 2026:KHC-D:5044 RSA No. 5140 of 2008 HC-KAR
ii) The suit of plaintiff is decreed. Plaintiffs are entitled for possession of suit schedule property from defendants and also entitled for mesne profits from defendants, which is to be ascertained under Order XX rule 12 of C.P.C.
iii) Draw decree accordingly.
Sd/-
(GEETHA K.B.) JUDGE SSP CT-MCK List No.: 1 Sl No.: 1