Karnataka High Court
Sri B Nagappa vs Sri T B Lingegowda on 18 October, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
RSA NO.3065 OF 2006 (DEC/INJ)
BETWEEN:
1. SRI B NAGAPPA
S/O BORE GOWDA
(SINCE DEAD BY HIS LR'S)
1(a) SMT.GOWRAMMA,
W/O LATE SRI B NAGAPPA
AGED ABOUT 75 YEARS.
1(b) SRI M.N.BALAKRISHNA,
S/O LATE SRI B NAGAPPA,
AGED ABOUT 55 YEARS.
1(c) SMT.M.N.BHARATHI,
D/O LATE SRI B NAGAPPA,
W/O SRI GOPAL,
AGED ABOUT 53 YEARS,
R/AT HIRISAVE TOWN,
BEHIND GOVT. HOSPITAL,
HIRISAVE,
CHANNARAYAPATNA TALUK,
HASSAN DISTRICT - 573 124.
1 (d) SMT, DEVEERAMMA
D/O LATE SRI B. NAGAPPA,
W/O LATE SRI UDAYKUMAR
AGED ABOUT 48 YEARS
R/AT NAGATHIHALLI VILLAGE
BINDIGANAVILE HOBLI,
HALISANDRA POST,
NAGAMANGALA TALUK,
2
MANDYA DISTRICT-571 802.
1.(e) SRI M.N. MUKUNDA
S/O LATE SRI B. NAGAPPA
AGED ABOUT 43 YEARS
APPELLANT NOS.1 (A), 1(B) & (E)
ARE R/AT MADALAGERE VILLAGE
HIRISAVE HOBLI,
CHANNARAYAPATNA TALUK,
HASSAN DISTRICT-573 124.
...APPELLANTS
(BY SRI BHARGAV G, ADVOCATE)
AND:
1. SRI T.B. LINGEGOWDA
(SINCE DEAD BY HIS LR'S)
1(a) SMT. MALLAMMA
W/O LATE SRI T.B. LINGEGOWDA
AGED ABOUT 78 YEARS
R/AT THOTIKOPPALU VILLAGE
HIRISAVE HOBLI
CHANNARAYAPATNA TALUK,
HASSAN DISTRICT-573 124.
1(b) SMT. AMMAYAMMA
D/O LATE SRI T.B. LINGEGOWDA
W/O SRI PAPEGOWDA
AGED ABOUT 60 YEARS
R/AT GUNASHETTAHALLI VILLAGE
CHANNARAYAPATNA TALUK,
KASABA HOBLI,
HASSAN DISTRICT-573 116.
1(c) SMT. SHARADAMMA,
D/O LATE SRI T.B. LINGEGOWDA,
W/O SRI PUTTEGOWDA
AGED ABOUT 58 YEARS
3
R/AT DODDERI VILLAGE,
NUGGEHALLI HOBLI,
CHANNARAYAPATNA TALUK,
HASSAN DISTRICT-573 131.
1(d) SMT. YASHODAMMA
D/O LATE SRI T.B. LINGEGOWDA
W/O LATE SRI RAMEGOWDA
AGED ABOUT 56 YEARS
R/AT THOTI VILLAGE
BILIGEHALLI POST
CHANNARAYAPATNA TALUK
HASSAN DISTRICT-573 124.
1(e) SRI MAHESH
S/O LATE SRI T.B. LINGEGOWDA
AGED ABOUT 53 YEARS
R/AT THOTIKOPPALU VILLAGE,
HIRISAVE HOBLI,
CHANNARAYAPATNA TALUK,
HASSAN DISTRICT-573 124.
(CORRECTED AS PER THE ORDER DATED:26.2.2021)
1(f) SRI KRISHNEGOWDA,
S/O LATE SRI T.B. LINGEGOWDA,
AGED ABOUT 50 YEARS,
R/AT THOTIKOPPALU VILLAGE,
HIRISAVE HOBLI,
CHANNARAYAPATNA TALUK,
HASSAN DISTRICT-573 124.
1(g) SMT. THANGYAMMA,
D/O LATE SRI T.B. LINGEGOWDA
AGED ABOUT 48 YEARS
R/AT THOTI VILLAGE
BILIGEHALLI POST,
CHANNARAYAPATNA TALUK,
HIRISAVE HOBLI,
HASSAN DISTRICT-573 124.
2. SRI M. GANGAPPA,
S/O SRI MUDDEGOWDA,
4
AGED ABOUT 75 YEARS
WRITER
R/O PARNALA POST
UDAKAMANDALA, OOTY
NEELAGIRI DISTRICT.
R2 IS DECEASED
STEPS TO LRS OF R2 ARE DISPENSED
WITH V/O DATED 20.11.2008.
(AMENDMENT CARRIED OUT AS PER
ORDER DATED: 20.11.2008).
... RESPONDENTS
(BY MRS AZRA J DUNDGE, ADVOCATE FOR R1 (A-G)
V/O/DT: 20.11.2008 STEPS IN R/O DEED R2 IS D/W )
THIS RSA IS FILED U/S. 100 OF CPC AGAINST
THE JUDGEMENT & DECREE DATED 23.8.2006 PASSED
IN R.A.NO.143/2002 ON THE FILE OF THE CIVIL JUDGE
(SR.DN.), CHANNARAYAPATNA, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGEMENT AND
DECREE DATED 8.7.1999 PASSED IN OS.NO.385/1988
ON THE FILE OF THE CIVIL JUDGE (JR.DN.),
CHANNARAYAPATNA.
THIS APPEAL COMING ON FOR FURTHER
ARGUMENTS THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Heard the learned counsel appearing for the appellants and the respondents.
2. This appeal is by the defendants in O.S.385/1988 on the file of the Civil Judge (Jr.Dvn.), Channarayapatna. The suit is filed for the relief of 5 rectification of the sale deed dated 01.07.1976 and declaration of title and in the alternative, for possession of the suit schedule property.
3. The suit property is the property bearing Sy.No.116/2 in Madalagari Village, Channarayapatana Taluk. The Plaintiff claims that the property measuring 1 acre and 10 guntas is purchased by the plaintiff on 01.07.1976. It is urged that, though in the sale deed dated 01.07.1976, the property number is mentioned as Sy. No.116/3, the property purchased in fact is Sy. No.116/2, not Sy. No.116/3. It is claimed that the plaintiff has purchased the property from Gangappa s/o Muddegowda. Plaintiff would contend that the property was allotted to Muddegowda in the partition of 1937. Thus Gangappa who acquired the title from Muddegouda could have sold only Sy. No.116/2 and not 116/3. The property sold is Sy.no.116/2 and the same is wrongly mentioned as Sy. No.116/3 in the sale deed is the submission on behalf of the plaintiff.
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4. The 1st defendant contested the claim of the plaintiff. The 1st defendant contends that he is the owner of the property based on registered sale deeds dated 25.06.1965 and 24.08.1968. 1st defendant claims to have purchased certain properties including the suit property under the aforementioned sale deeds from his vendor Chikka Boregowda. According to the 1stdefendant, the suit property is allotted to the share of Chikka Boregowda in the partition of 1937. It is urged by the 1st defendant that since he is the exclusive owner of the suit property, in terms of registered sale deeds dated 25.06.1965 and 24.08.1968, the plaintiff who is claiming title under registered sale deed dated 01.07.1976 has no title over the suit property. It is urged that the title deeds of the 1st defendant are anterior to the sale deed in favour of the plaintiff. Thus it is contended that the plaintiff could not have purchased the suit property in 1976 from the 2nd defendant i.e.Gangapa s/o Muddegowda, as the property is already purchased by the 1stdefendant in 1965.
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5. The trial Court has held that the vendor of the 1stdefendant did not have title over 3 acres and 9 guntas which the 1stdefendant claimed under two registered sale deeds referred to above. The trial Court has concluded that the 1stdefendant has not established his title over the suit property and it has concluded that the 1stdefendant has encroached upon 16 guntas of the suit land. The basis for finding on encroachment is the report of the Court Commissioner. It is forthcoming from the records that the report is not formally marked. However, reliance is placed by the Trial Court on the report of the court commissioner as there was no objection to the said report by either of the parties before it.
6. According to the trial Court, the report would reveal that 16 guntas in the suit land are encroached on by the defendant. The trial Court has granted the decree for declaration of title and decree for possession of 16 guntas of land. The trial Court has also concluded that the property sold by the vendor of the plaintiff is Sy. 8 No.116/2 and not Sy. No.116/3 as reflected in the sale deed.
7. The defendant being aggrieved by the said judgment and decree preferred an appeal before the First Appellate Court. An application is also filed by the appellant before the First Appellate Court to appoint a Survey Commissioner. That application was heard along with the appeal. The First Appellate Court has concluded that there is no need to appoint the Court Commissioner as none objected to the Commissioner's report placed before the trial Court. The First Appellate Court has concluded that the 1st defendant's vendor had no title over 3 acres and 9 guntas of land said to have been conveyed under the registered sale deeds dated 25.06.1965 and 24.08.1968. The First Appellate Court has concluded that the 1stdefendant has title only to the extent of 2 acres 26 guntas which was allotted to the share of the vendor of the 1stdefendant in the partition of 1937 which is marked as Ex.P7.
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8. 1st Defendant has filed the Regular Second Appeal impugning the judgments and decrees passed by the trial Court as well as the First Appellate Court.
9. This appeal was admitted on 16.09.2009 to consider the following substantial question of law.
"Whether the Courts below were justified in holding that the property purchased by the plaintiff is to an extent of 1 acre 11 guntas in Sy. No.116/2 instead of Sy. No.116/3 without considering the documents of title pertaining to both the lands and without the evidence of the vendor of the plaintiff and whether such a finding is arbitrary and justifiable in the eye of the law?"
10. The learned counsel for the appellant Sri. Bhargava, referring to the pleading evidence, the grounds urged before the First Appellate Court, the judgments of the Apex court and the Privy council would urge that two more substantial questions of law namely, one relating to adverse possession and another relating to the limitation to file a suit for rectification of the sale deed are to be framed.
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11. Since, the questions of limitation and a plea relating to adverse possession based on long standing settled possession are raised with reference to the judgment of the Apex Court in NAZIR MOHAMED V/s. J KAMALA AND OTHERS reported in (2020) 19 SCC 57, this Court is of the view following two more substantial questions of law would arise for consideration and accordingly, two additional substantial questions of law are framed:
(i) Whether the long-standing possession over the property for more than 12 years, by a person who is not the real owner, by itself can extinguish the title of the real owner and confer the title by way of adverse possession, when the person in occupation of the property is under the impression that he has rightfully purchased the property?
(ii) Whether the trial Court and the First Appellate Court are justified in decreeing the suit for rectification of the sale deed despite the suit being filed beyond 3 years from the date of execution of the sale deed?
12. The learned counsel for the appellants and the respondents submitted that they are ready to address their submission on the additional substantial questions of the law framed. Accordingly, both the 11 counsel have addressed their arguments on all the substantial questions of law.
13. Learned counsel for the appellant Sri Bhargav G would raise the following contentions:
(i) The contention of defendant No.3 raised in the written statement relating to long possession and the title of the property should be construed, in the alternative, as a contention relating to the title, based on adverse possession, if the contentions relating to the acquisition of the title of the property under the sale deeds is not established;
(ii) The appellant is in exclusive possession of the property. The possession is established to be long standing possession. Such possession by nature is open and hostile to the interest of the real owner and there need not be specific pleading relating to hostile possession. Thus the right of the plaintiff over 16 guntas in the suit property is extinguished as the plaintiff slept over his right for a considerable length of time. Thus plaintiff is not entitled to the relief of possession; 12
(iii) The First Appellate Court is not justified in rejecting the application for appointment of Survey Commissioner. The Survey Commissioner should have been appointed as the report of the earlier commissioner is erroneous.
(iv) The suit of the plaintiff instituted in the year 1988 in so far as the relief of rectification of the sale deed dated 01.07.1976 is barred by limitation in view of Article 113 of the Limitation Act. The suit ought to have been filed within three years from the date of registration of the sale deed.
14. Mrs Azra J. Dundge, learned counsel for the respondent would raise the following contentions:
(i) There is no plea of adverse possession in the written statement filed by the defendant. As such, the contention that the defendant has acquired title over the property by way of adverse possession is not tenable.
(ii) The vendor of the 1st defendant had only 2 acres and 26 guntas of land in his name in terms of the 13 partition deed of 1937. Thus, 1st defendant's vendor could not have sold more than 2 acres of 26 guntas allotted to him. The sale deed in the name of the 1stdefendant to the extent of 3 acres 9 guntas should be construed as a sale deed to the extent of 2 acres 26 guntas which was allotted to the 1stdefendant's vendor.
(iv) The plaintiff came to know about the discrepancy in the survey number only in the year 1988 i.e., only when the property was surveyed. Thus the suit is filed within 3 years from the date of the cause of action.
(v) The appellant has not objected to the report of the survey Commissioner before the trial Court.
When that objection is not raised before the trial Court, the second application for appointment of a Survey Commissioner before the First Appellate Court is not maintainable as the report of the Court Commissioner placed before the trial Court is not set aside. 14
15. Based on these contentions, learned counsel for the respondent would urge for dismissal of the appeal.
16. The Court has considered the contentions raised at the bar and also considered the impugned judgment and decrees and the materials placed on record.
17. Admittedly, the vendor of the 1st defendant and the father of the plaintiff's vendor were brothers.The partition of the year 1937, evidenced in the registered partition deed is not disputed. In the said partition, the father of the plaintiff's vendor namely Muddegouda was granted 1 acre of 10 guntas in Sy. No.116.In the same partition, some properties were allotted to the 1st defendant's vendor. The extent of the property allotted to the 1st defendant's vendor is 2 acres 26 guntas which is evident from Ex.P.7 - partition deed of 1937. However, back in 1937, the properties were not sub divided in the revenue records. The subdivision took place only after the partition in the year 1937. 15 After the demise of Muddegowda who was allotted Sy. No.116,measuring 1 acre 10 guntas, the property devolved upon his son Gangappa who in turn has sold the property to the plaintiff.
18. When the property was sold, the property was bearing Sy. No.116/2. However, the sale deed would reveal that the property sold by Gangappa is Sy. No.116/3. From the records, it is apparent that neither Gangappa nor his father had acquired Sy. No.116/3. What is allotted to Muddegouda, the father of the plaintiff's vendor is, Sy No.116 measuring 1 acre 10 guntas in the partition of 1937. Later survey number 116 is subdivided based on the partition. The property allotted to Muddegouda is numbered is Sy.116/2. Thus, Gangappa the son of Muddegouda could have sold only Sy.No.116/2 and not Sy. No.116/3. Accordingly, the property sold by Gangappa should be treated as Sy. No.116/2 and not Sy. No.116/3, though in the sale deed, the property is wrongly described as Sy. No.116/3 instead of Sy. No.116/2. Gangappa could have sold what was owned by him and not what was not owned 16 by him. Since he owned Sy. No.116/2, measuring 1 acre 16 guntas, the sale deed executed by Gangappa in favour of the plaintiff on 01.07.1976 should be construed as the sale deed in respect of Sy. No.116/2. It is also relevant to note that the vendor of the plaintiff has no objection to this claim of the plaintiff.
19. The partition deed of 1937 at Ex.P.7 would reveal that 2 acres 26 guntas of land are allotted to the vendor of the 1st defendant. On what basis, the vendor of the 1st defendant sold 3 acres and 9 guntas of land to the 1st defendant is not forthcoming. Having acquired only 2 acres and 26 guntas in the partition of 1937, he could not have sold the excess land of 23 guntas to the 1stdefendant.However, the 1st defendant would contend that the sale deed would reflect 3 acres and 9 guntas and he is in possession of the said property ever since the purchase.It is urged that his possession has been continuous, peaceful, and hostile to the interest of the real owner i.e., the plaintiff and based on this it is urged that the defendant has acquired title over 16 guntas of land in the suit property by way of adverse possession. 17
20. The appellant, in this case, is in a position to establish his possession over 16 guntas of land in the suit property which is evident from the report of the Court Commissioner itself. The question is, "Whether this possession amounts to "adverse possession'' and does it extinguish the title of the plaintiff and whether the defendant has acquired title by way of adverse possession"?
21. To establish the plea of adverse possession, apart from continuous, uninterrupted, peaceful possession for more than the prescribed period of 12 years he must prove the following;
a) animus possidendi with an intention to acquire the title of the true owner
b) such possession must be to the knowledge of the real owner
c) and that the true owner acquiesced his hostile character of possession over the property continuously and uninterruptedly over a period of 12 years.If any one 18 of these ingredients is missing, the plea of adverse possession falls flat.
22. At this juncture, it is profitable to consider the law laid down by the Apex court in the case of Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC
729. In paragraph no. 60 it is held as under:
60. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, 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 his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. .....
23. In the instant case, the plea of hostile possession is not forthcoming from the records. The records would demonstrate that the 1st defendant carried the impression that he has acquired title over 3 acres and 9 guntas under the registered sale deed 19 executed by the 1st defendant's vendor. The 1st defendant became aware that the plaintiff is the owner of 16 guntas of land over which he is in possession only after the survey which took place in 1988. It is not the case of the 1st defendant that he has asserted his hostile title and possession against Muddegouda who is allotted a share in Sy.no.116 or against his son who sold the property to the plaintiff. If at all the 1st defendant has asserted adverse possession over the property before the plaintiff purchased the same, the first defendant should have pleaded this aspect in his written statement. No such plea is forthcoming.
24. Once it is established that hostile intention was not there on the part of the possessor, or if it is established that the possessor was not aware as to who is the real owner of the property over which he was squatting, there cannot be a decree or a finding that squatter has acquired adverse possession. Such being the factual position there is no difficulty in holding that the plea of adverse possession raised before this court cannot be accepted. The possession of 16 guntas of 20 land, by the 1st defendant, is to be considered as a possession under the bonafide belief that he is the owner under a registered sale deeds in his name and nothing else. Being in possession of a property under a bonafide belief that he has acquired title over it under a sale deed, for any length of time, will not confer ownership over it. To acquire title by way of adverse possession, the possession has to be necessarily hostile to the knowledge of the real owner.
25. Learned counsel for the appellant would place reliance on the following Judgments:
(i) VASUDEVA PADHI KHADANGA GARU
AND MAGUNI DEVAN BAKSHI
MAHAPATRULU GARU reported in
(1900-01) 28 IA 81: (1900-01)5 CWB
545.
(ii) MUNCIPAL BOARD, ETAWAH V/s. Mt.
RAM SRI AND ANOTHER reported in AIR
1931 ALL 670.
(iii) MEHAR CHAND AND OTHERS V/s.
JAGDISH CHAND GUPTA reported in
1970 SCC Online DEL 140: AIR 1970 DEL
219.
(iv) LAKKHOO V/s. BHALLOO reported in
1988 RD 268: 1987 SCC Online ALL
1011.
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(v) RATHNASAMY MUDALIAR AND OTHERS
V/s. RASU reported in 2000-2-L.W.540.
(vi) NAZIR MOHAMED V/s. J KAMALA AND
OTHERS (2020) 19 SCC 57
26. Learned counsel for the respondent in support of his contention would place reliance on the following two judgments:
(i) Dagadabai (Dead) by LRs V/s Abbas @ Gulab RustumPinjari [Civil Appeal No.83 of 2008].
(ii) Shri Uttam Chand (d) through LRs V/s Nathu Ram (d) through LRs. &Ors, [Civil Appeal No.190 of 2020].
27. Shri. Bhargava G the learned counsel for the appellant, referring to the judgments cited by him more particularly the judgement in Nazir Mohamed Supra would submit that the long-standing possession of the appellantshould be treated as ' adverse possession. Paragraphs 42 and 43 of the said would read as under:
42. A decree of possession does not automatically follow a decree of declaration of title and ownership over the property. It is well settled that where a plaintiff wants to establish that the defendant's original possession was permissive, it is for the plaintiff to prove this allegation and if he fails to do so, 22 it may be presumed that possession was adverse, unless there is evidence to the contrary.
43. The appellant-defendant has in his written statement in the suit, denied the title and ownership of the respondent-plaintiff to the suit property. The appellant-defendant has asserted that the appellant-
defendant is the owner of the suit property and has been in possession and in occupation of the suit premises as the owner from the very inception.
28. This Court has considered the ratio laid down in the aforementioned judgments. The contention of the appellant that mere possession of the property for a period of more than 12 years should be construed as an adverse possession has no merit. The judgments cited by the Shri Bhargava do not lay down the proposition that mere possession of the property by a person not having the title, for more than 12 years, is good enough to declare that such person acquired the title. In the aforementioned case of NAZIR MOHAMED, the plaintiff contended that he has given the property to the defendant on rent and later, he filed a suit for possession on the premise that the tenant is in arrears of rent. The defendant disputed the tenancy. 23 Defendant claimed that he has acquired title under the registered sale deed. The Courts have held that the plea of tenancy is not established by the plaintiff. It is also noticed that the defendant was in possession of the property for a considerable length of time. In the said factual background the Apex Court has held that since the plaintiff could not establish a plea of permissive possession as asserted, the possession of the defendant is to be treated as adverse. In the instant case, the fact situation is different. The plaintiff has never contended that the defendant is in permissive possession. The plaintiff realised that the defendant is in possession of the plaintiff's property only after the survey. Even the defendant carried the impression that he is owning the property based on the sale deed in his favour. Both the parties bonafide carried the impression that the 16 guntas of disputed land belonged to the defendant. That being the position, the ratio laid down in the case of NAZIR MOHAMED supra cannot be applied to this case.
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29. The position of law as far as the plea of adverse possession is concerned is well settled. Time and again, Supreme Court has held that person who seeks adverse possession shall be in continuous and uninterrupted possession for a period of more than 12 years but also should establish that it was hostile to the interest of the real owner. Though the 1st defendant has established his possession over the property, it is apparent from the recitals in the sale deeds in the name of the 1st defendant/appellant, that he was not aware that the suit property belonged to the plaintiff in this case. The Appellant carried the impression that he had purchased part of the suit property (16 guntas) from his vendor and that his vendor is the real owner of the property. The sale deeds in favour of the 1st defendant would not disclose that the vendor of the 1st defendant has acquired title over 16 guntas of land in the suit property by way of adverse possession.
30. The suit for possession based on title is governed by Article 65 of the Limitation Act, of 1963. Article 65 reads as under.
25
Description of suit Period of Time from which limitation the period begins to run
65. For possession of Twelve When the possession immovable property or any years of the defendant interest therein based on the becomes adverse to title. the plaintiff.
31. Section 27 of the Limitation Act, of 1963 is as under:
"At 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".
32. The term 'adverse possession' is not defined under Indian law. It is a common law concept. It is well recognised in our jurisprudence. Though the term 'adverse possession' is not defined under Indian law, the concept finds its place in Article 65 of the Limitation Act, 1963, which provides for starting point of limitation to file the suit for possession based on the title. Under the said Article, the starting point of limitation to file the suit for possession based on title is the date on which the possession of the defendant 26 becomes adverse to the plaintiff. Under Section 27 of the Limitation Act, 1963, the right to immovable property gets extinguished if the suit for possession is not filed within the prescribed period. Section 27 of the Limitation Act is an exception to the principle that at the expiry of the period of limitation, the remedy is lost but not the right. Under Section 27, at the determination of period limited to file a suit for possession, not only the remedy but also the right over the property is lost. From a conjoint reading of Section 27 and Article 65 of the Limitation Act, 1963, the suit for possession based on title cannot be dismissed on the ground of limitation if, the plea of adverse possession is not established by the defendant as held in Indira v. Arumugam, (1998) 1 SCC 614. The relevant portion of paragraph no. 5 of the judgment is extracted for reference.
5. It is, therefore, obvious that when the suit is based on title for possession, once the title is established on the basis of relevant documents and other evidence unless the defendant proves adverse possession for the prescriptive period, the plaintiff cannot be non-suited. ...... 27
33. In the instant case, the 1stdefendant has not pleaded adverse possession. Moreover, his possession under a bonafide belief that he really owned the property cannot be treated as adverse possession. For the aforesaid reasons, this Court is of the view that the 1st defendant has failed to establish his hostile possession over 16 guntas of suit land for a continuous period of 12 years. It is apparent that there was no intention on the part of the 1st defendant to assert his hostile title and possession over 16 guntas of land against the plaintiff who is the real owner. The possession of the 1st defendant over disputed 16 guntas of land in the suit property is a possession based on the bonafide belief that the property belongs to him. The 1st defendant never knew that the property belonged to the plaintiff or his predecessor in title. Such possession cannot be construed as adverse possession to extinguish the title of the real owner. For this reason, this Court is of the view that the contention of the appellant that he has acquired title over the property by adverse possession is not accepted.
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34. As far as the question relating to the limitation to file a suit for rectification of the title deed is concerned, this Court is of the view that the relief of rectification of the title deed sought in this case is not the main relief. The main relief is the declaration of title and possession. Since this is the suit for possession based on the title, governed by Article 65 of the Limitation Act, this Court is of the view that the relief of rectification of the sale deed is only an ancillary relief, in the facts and circumstances of this case.
35. Once the court holds that the plaintiff is the owner and that the defendant has not acquired title by way of adverse possession and passes a decree for possession, the prayer for rectification of the survey number in the sale deed is a logical consequence flowing from the decree declaring the title of the plaintiff. The same cannot be denied on the premise that the suit for rectification of the survey number is filed beyond 3 years from the date of registration of the sale deed. Moreover, the cause of action for the suit to 29 seek rectification of the sale deed arose only in the year 1988 when the property was surveyed. Then the plaintiff realized that the property purchased by the plaintiff is wrongly mentioned as Sy.No.116/3 in the sale deed instead of Sy.No.116/2. Thus the prayer for rectification of the sale deed is also within time even if the limitation is construed as three years under Article
113. Since the suit is filed within three years from the date of cause of action which arose in 1988, the contention that the prayer for rectification of the sale deed is not in time is not tenable.
36. Since, this Court has concluded that the plaintiff is the owner of the property and this Court has concluded that the 1 stdefendant has encroached the extent of 16 guntas and that he has not acquired the title by way of adverse possession, the decree for possession granted by the Courts below in favour of the plaintiff has to be affirmed and 1st defendant has to vacate the suit property to the extent of 16 guntas as indicated in the report of the Commissioner. 30 Consequently, there has to be the rectification of the sale deed dated 01.07.1976 as prayed.
37. For the aforementioned reasons, this Court is of the view that the substantial questions of law framed on 16.09.2009 and 18.10.2022 are answered in favour of the respondent and against the appellant.
38. Hence, the following:
ORDER The appeal is dismissed. The impugned judgments and decrees dated 23.08.2006 passed by the Civil Judge (Sr.Dvn.), Channarayapatna in R.A.No.143/2002 and that of the Civil Judge (Jr.Dvn.), Channarayapatna dated 08.07.1999 in O.S.385/1988 are confirmed.
Sd/-
JUDGE BRN