Karnataka High Court
Sri Gullu G Talreja Alias Prakash G ... vs Sri Sanjay Abbas Khan on 15 May, 2025
Author: K. Somashekar
Bench: K. Somashekar
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RFA No. 869 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF MAY, 2025
PRESENT
THE HON'BLE MR JUSTICE K. SOMASHEKAR
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
REGULAR FIRST APPEAL NO.869 OF 2024 (DEC/INJ)
BETWEEN:
1. SRI GULLU G. TALREJA
@ PRAKASH G. TALREJA,
S/O SRI GELARAM TALREJA,
AGED ABOUT 70 YEARS,
2. SMT. SARALA P. TALREJA,
W/O GULLU G. TALREJA
@ PRAKASH G. TALREJA,
AGED ABOUT 66 YEARS
NO.1 AND 2 ARE RESIDING AT
FLAT NO.122 AND 123,
12TH FLOOR, TOWER NO.4,
PEBBLE BAY, A-11,
1ST MAIN ROAD,
RMV 2ND STAGE,
DOLLARS COLONY,
BENGALURU - 560094.
3. SMT. ASHA UTTAM CHANDANI,
D/O SRI GELARAM TALREJA,
AGED ABOUT 74 YEARS,
NO.4, II FLOOR, KAVERI APARTMENTS,
BETWN 7TH AND 8TH CROSS,
8TH MAIN, MALLESWARAM,
BENGALURU - 560003.
...APPELLANTS
(BY SRI. P.D. SURANA A/W SRI. RAJU S., ADVOCATES.)
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RFA No. 869 of 2024
AND:
SRI SANJAY ABBAS KHAN
S/O LATE SIDHIQUE ALI KHAN,
AGED ABOUT 82 YEARS,
NO.11, SILVER BEACH,
AB NAIR ROAD, JUHU,
MUMBAI - 400 049.
ALSO ADDRESSED AT
SURVEY NO.27/1 TO 27/4,
NAGARUR VILLAGE PANCHAYAT,
DASANAPURA HOBLI,
BANGALORE NORTH TALUK,
BANGALORE URBAN DISTRICT.
...RESPONDENT
(BY SRI. S.S. NAGANAND, SENIOR COUNSEL A/W
SRI. VIJAY KUMAR DESAI, ADV. FOR RESPONDENT.)
***
THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED 12.01.2024
PASSED IN OS NO.337/2017 ON THE FILE OF ADDITIONAL SENIOR
CIVIL JUDGE, NELAMANGALA, DISMISSING THE SUIT FOR
DECLARATION, MANDATORY INJUNCTION AND RECOVERY OF
POSSESSION.
THIS REGULAR FIRST APPEAL, HAVING BEEN HEARD AND
RESERVED ON 28.03.2025, COMING ON FOR PRONOUNCEMENT,
THIS DAY, VENKATESH NAIK T., J, PRONOUNCED THE
FOLLOWING:
CORAM: HON'BLE MR JUSTICE K. SOMASHEKAR
and
HON'BLE MR JUSTICE VENKATESH NAIK T
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RFA No. 869 of 2024
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE VENKATESH NAIK T.) This appeal is filed by the appellants/plaintiff Nos.1 to 3 challenging the judgment and decree dated 12.01.2024 passed by the learned Additional Senior Civil Judge and JMFC, Nelamangala (herein after referred to as 'the trial Court', for brevity) in O.S.No.337/2017.
For the purpose of convenience, the parties are referred to as per their ranking before the trial Court. The appellants are plaintiff Nos.1 to 3 and respondent is the defendant.
The brief facts of the case are that, the plaintiffs filed a suit for declaration, mandatory injunction and for recovery of possession. It is the case of the plaintiffs that one Smt. Vijayalakshmi and Sri.S.R.Yogananda purchased suit schedule item No.1 of 'A' schedule property, land bearing Survey No.20 situated at Nagarur Village, Dasanapura Hobli, Nelamangala Taluk, measuring 8 acres 11 guntas from Channagiriyappa under a registered sale deed dated 31.01.1969 and suit schedule item No.2 of 'A' schedule bearing survey No.28 situated at Nagarur Village, measuring -4- RFA No. 869 of 2024 8 acres 11 guntas from Sri.S.R.Yogananda under a registered sale deed dated 13.12.1978. The boundaries as per the sale deed dated 13.12.1978 shows only towards North, South and East, but, towards West, no boundary is mentioned, however, in the subsequent sale deeds, the boundaries are correctly shown.
It is contended that suit schedule item No.3 of 'A' schedule property was purchased by plaintiff No.3 under a registered sale deed dated 12.4.1990 from Sri.V.C.Channappa. Suit item No.4 of 'A' schedule was purchased by plaintiff No.3 under registered sale deed dated 27.09.1990 from Sri.H.D.Shivakumar. Suit item No.5 of 'A' schedule was purchased by plaintiff No.3 under a registered sale deed dated 22.09.1990 from Sri.H.D.Gangaraju. Suit Item No.6 of 'A' schedule was purchased by plaintiff No.3 under a registered sale deed dated 25.09.1990 from Sri.H.D.Shivaprakash. Suit Item No.7 of 'A' schedule was purchased by plaintiff No.3 under a registered sale deed dated 21.09.1990. Plaintiff No.1 is the absolute owner of suit item No.8 of 'A' schedule property land bearing Survey No.28/2, measuring an extent of 3 acres situated at Nagarur -5- RFA No. 869 of 2024 Village, which was converted for non agricultural purpose vide order dated 21.05.1993 and 01.12.1993 under a registered sale deed dated 07.10.1994 executed by G.P.A holder of plaintiff No.3, which is confirmed by confirmation deed dated 27.06.2016 and plaintiff Nos.2 and 3 have purchased Item No.9 of suit 'A' schedule property, which is converted for residential purpose under Order dated 25.01.1993 and 01.12.1993 from G.P.A holder of plaintiff No.3 under a registered sale deed dated 30.03.1996, which is confirmed as per confirmation deed dated 27.06.2016.
The sale transactions in respect of land bearing Survey Nos.20, 28, 28/2 and 28/1 are as under:
'A' Schedule Property SSP "A" Date of Survey Name of the Name of the Items Registration of Number owner Purchaser Sale Deeds and extent 1(Ex.P2) 31.01.1969 Sy.No.28 Channagiriyappa a) Smt. Vijayalakshmi 8 acres 11 and guntas b) S.R. Yogananda 2(Ex.P3) 13.12.1978 Sy.No.28 a) Smt. B.C. Chinnappa 8 acres 11 Vijayalakshmi guntas through her Power of Attorney Smt. Ramadevi and
b) S.R. Yogananda 3(Ex.P4) 12.04.1990 Sy.No.28/2 B.C. Chinnappa Smt. Asha Uttam 8 acres 11 Chandani (Plaintiff guntas No.3) -6- RFA No. 869 of 2024 4(Ex.P5) 27.09.1990 Sy.No.28/1 H.D. Shivakumar Smt. Asha Uttam 2 acres Chandani (Plaintiff No.3) 5(Ex.P6) 22.09.1990 Sy.No.28/1 H.D. Gangaraju Smt. Asha Uttam 2 acres Chandani (Plaintiff No.3) 6(Ex.P7) 25.09.1990 Sy.No.28/1 H.D. Shivaprakash Smt. Asha Uttam 2 acres Chandani (Plaintiff No.3) 7(Ex.P8) 21.09.1990 Sy.No.28/1 H.D. Vijaykumar Smt. Asha Uttam 2 acres 28 Chandani guntas (Plaintiff No.3) 8(Ex.P9) 07.10.1994 Sy.No.28/2 Smt. Asha Uttam Sri Gullu G. and confirmation 3 acres Chandani Talreja(formerly (Ex.P10) deed dated (Plaintiff No.3) known as Prakash G. 27.06.2016 Through her GPA Talreja) holder Miss Rinku (Plaintiff No.1) P. Talreja 9(Ex.P11) 30.03.1996 Sy.No.28/2 Smt. Asha Uttam Sri Gullu G. and confirmation and 28/1 Chandani Talreja(formerly (Ex.P12) deed dated 12 acres 1 (Plaintiff No.3) known as Prakash G. 27.06.2016 gunta Through her GPA Talreja) holder Miss Rinku (plaintiff No.1) P. Talreja and Smt. Sarala P. Talreja (plaintiff No.2) 'B' Schedule Property SSP "B" Survey Number and Remarks Item extent Suit a. Sy.No.28/2 According to plaintiffs, they schedule 1 acre 15 guntas are owners of suit schedule "B" including 35 guntas B property, which forms Property converted for residential part and parcel of survey purpose. Nos.28/1 and 28/2 of Nagarur Village.
b. Sy.No.28/1 1 gunta According to plaintiffs, B converted for residential schedule property has been purpose encroached by the defendant and it is in Total - 1 acre 16 possession of the guntas defendant.
It is contended that, Survey No.28/1 described as suit item Nos.4 to 7 totally measuring 8 acres 28 guntas and -7- RFA No. 869 of 2024 property bearing Sy.No.28/2 described as item No.3 totally measuring 8 acres 11 guntas was owned by plaintiff No.3 and she has converted an extent of 6 acres 35 guntas in Sy.No.28/2 and sold the same in favour of plaintiff Nos.1 and 2 and accordingly, plaintiff Nos.1 and 2 are the absolute owners of property purchased and they are in peaceful possession and enjoyment over the same by transfer of khatha and revenue records.
It is contended that plaintiffs Nos.1 and 2 in order to obtain financial assistance, mortgaged their properties by deposit of title deeds dated 25.11.2015 i.e., the properties purchased by them to M/s.India Bulls Housing Finance Limited, which is duly registered before the Office of Sub-Registrar, Rajajinagar, however, they continued their possession and enjoyment over suit schedule property.
8. It is contended that, in the year 2014, the Tahsildar, Bengaluru North Taluk had issued notice to the plaintiffs stating that they have encroached 1 acre 23 guntas in Sy.No.29 situated at Nagarur Village, Dasanapura Hobli, Bengaluru North Taluk and accordingly, they are in unauthorized possession over the property encroached. In this regard, The Range Forest -8- RFA No. 869 of 2024 Officer, Yelahanka Division also issued notice dated 14.03.2015 to the plaintiffs alleging encroachment with respect to forest land, hence, they were asked to furnish their title deeds.
9. It is contended that the plaintiffs were nowhere in possession or occupation over Sy.No.29 and they are in possession over Sy.Nos.28/1 and 28/2 and in that regard, they responded to the notice issued by the authorities and also furnished relevant documents, but, the Tahsildar rejected their claim and held that boundaries furnished by the plaintiffs are incorrect and they are in possession to an extent of 1 acre 3 guntas in Sy.No.29, which belongs to the Forest Department and accordingly, the authorities evicted the plaintiffs from the forest land by demolishing the compound wall and buildings which were in possession of the plaintiffs.
10. It is contended that, immediately after handing over possession of alleged encroached area to the Forest Department, the plaintiffs have approached the Tahsildar, Bengaluru North Taluk, Bengaluru to conduct survey with respect to properties bearing Sy.No.28/1 measuring 8 acres 28 guntas and Sy.No.28/2 measuring 8 acre 12 guntas situated at Nagarur Village in the year 2015 and accordingly, survey -9- RFA No. 869 of 2024 was conducted. The plaintiffs again requested the Tahsildar to conduct haddubastu survey in the year 2017 and accordingly, haddubastu survey was conducted, wherein sketch goes to show that an extent of land measuring 1 acre 15 guntas in Sy.No.28/2 and an extent of land measuring 1 gunta in Sy.No.28/1 is located towards West of PWD Road, which is described as suit 'B' schedule property.
11. It is contended that, after receipt of survey report, the plaintiffs came to know that the boundaries of Sy.No.28/1 and Sy.No.28/2 are incorrect and thereafter, they brought the alleged encroachment to an extent of 1 acre 16 guntas to the notice of defendant, who is an adjacent land owner of property bearing Sy.No.27/4, and stated that he has encroached portion in Sy.Nos.28/1 and 28/2, which belongs to the plaintiffs and the defendant in pursuance to their request had promised to settle the same, but he was prolonging the same and for that reason, the plaintiffs have approached the jurisdictional police, but the Police Officers have failed to take action against the defendant.
12. It is contended that the defendant had attempted to put up fence over suit 'B' schedule property and for that
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RFA No. 869 of 2024reason, they have lodged complaint before the jurisdictional Police on 03.07.2017, but they have failed to take any action and hence, the plaintiffs have filed the present suit for declaration, mandatory injunction and possession.
13. After service of summons, the defendant appeared through his counsel and filed written statement, wherein, he has contended that one Sri.B.C.Channappa, S/o Sri.Gangadharappa was the absolute owner of land bearing Sy.No.28/2 measuring 8 acres 11 guntas situated at Nagaruru Village, Dasanapura Hobli, Bengaluru North Taluk and he has executed registered sale deed dated 12.04.1990 in favour of plaintiff No.3 with boundaries towards East: Alur Village, West:
Makali to Yadalu Road, North: Survey No.28 and South:
Gomala.
14. Further, prior to execution of the sale deed, Sri.B.C.Chinnappa had executed an Agreement of sale dated 02.08.1987 in favour of Smt.Zahar Begum, which came to be canceled with consent of Smt.Zahar Begum with boundary towards West as Makali Yadalu Road. Further, the sale deed in favour of plaintiff No.3 clearly establishes that towards West of land bearing Sy.Nos.28/1 and 28/2, there is Makali Yadalu road
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RFA No. 869 of 2024and the road bifurcates the property of the plaintiffs and the defendant.
15. The defendant further contended that Smt.Zahar Begum had purchased the land bearing Sy.Nos.26 and 27 under registered sale deed dated 14.05.1990 executed by Sri.B.C.Chinnappa and after Sy.No.27 was phoded and re-numbered as Sy.No.27/1 to Sy.No.27/4 with boundaries towards East: Makali to Yadalu Road, West: Sy.No.26/1, North:
land of Dr.P.Venkatappa, South: Nagarur Road and said property is now owned by M/s.Essakay properties.
16. It is contended that the boundaries in the sale deed of plaintiff No.3 clearly goes to show that property of Smt.Zahar Begum towards East and Makali-Yadalu road towards West and for that reason, the said road bifurcates property of plaintiff No.3 and Smt.Zahar Begum, which is clearly reflected in the sale deed of plaintiff No.3 and Smt.Zahar Begum.
17. Further, M/s.Essakay properties is in possession as per boundaries of sale deed dated 14.05.1990, which includes suit 'B' schedule property and the same is within the knowledge of plaintiff No.3, but till now, she has not taken any steps.
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RFA No. 869 of 2024M/s.Essakay properties have already fenced suit 'B' schedule property by investing huge amount and also there is existence of trees for more than 27 years, which are within the knowledge of plaintiffs and they had kept quiet for long period and now they have created a story that the Tahsildar and the Forest Department have conducted survey etc., which are all false and not tenable under the law.
18. Further, it is contended that, the suit 'B' schedule property is part and parcel of property purchased by Smt.Zahar Begum as per boundaries of sale deed dated 14.05.1990 and in order to prove the same, they have produced the rough sketch, which goes to show the topography of land of plaintiff No.3 and Makali-Yadalu road, which bifurcates the same from the property of the defendant.
19. Further, Smt.Zahar Begum was the absolute owner of suit 'B' schedule property and she along with the defendant and 5 other members had constituted registered a partnership firm on 30.03.1994 as M/s.Essakay properties and investment, which was later converted as joint stock company registered under the Companies Act, 1956 and for that reason, without
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RFA No. 869 of 2024including M/s.Essakay Properties, the suit is bad for non-joinder of necessary parties.
20. Further, the plaintiffs have no manner of right, title or interest over suit 'B' schedule property and illegally they are interfering with their possession and accordingly, the defendant had lodged a police complaint before Madhanayanakanahalli Police Station against the plaintiffs and in this regard, a case is registered against the plaintiffs and in spite of that, the plaintiffs by creating stories and survey documents have filed a false suit.
21. Further, after amendment i.e., after conversion order dated 01.12.1993 with respect to Sy.Nos.28/1 and 28/2, the plaintiffs demanded possession of suit 'B' schedule property from the defendant in the month of April, 1994 and the same was rejected by the defendant and the plaintiffs have failed to take any steps and for that reason he is in continuous possession to the knowledge of plaintiffs for more than 23 years and for that reason he has perfected his title over suit schedule property by way of adverse possession. On the other hand, the plaintiffs filed a rejoinder denying the amended
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RFA No. 869 of 2024written statement averments as false and hence, the defendant prayed for dismissal of the suit.
22. On the basis of above pleadings, the trial Court framed the following issues and additional issue:
1. Whether defendant proves that the suit is bad for non-joinder of necessary parties?
(deleted as per order dated 21.02.2023)
2. Whether defendant proves that the suit is barred by limitation?
3. Whether defendant proves that the jurisdiction of the court is barred under provisions of Karnataka Land Revenue Act?
4. Whether defendant proves that the court fee paid by plaintiffs is insufficient?
5. Whether plaintiffs prove that the suit schedule 'B' property is part of land in Sy.No.28/1 and Sy.No.28/2 of Nagarur Village, Nelamangala Taluk?
6. Whether plaintiffs prove that they are absolute owners of suit schedule 'B' property?
7. Whether plaintiffs prove that the defendant has encroached over suit schedule 'B' property and has put unauthorized fencing to it?
8. Whether plaintiffs are entitled for the relief of declaration, possession and mandatory injunction as claimed in plaint?
9. What order or decree?
Additional Issues dated 16.09.2021.
1. Whether defendant proves that he has perfected
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RFA No. 869 of 2024title over suit schedule 'B' property by way of adverse possession?
23. The plaintiffs in order to prove their case, got examined their G.P.A holder Sri.Vinod C. as PW.1 and got marked 30 documents as per Exs.P1 to P30. The plaintiffs also got examined one witness by name Sri.B.C.Suman Chandra as PW2. The defendant by name Sanjay Abbas Khan got examined as DW1 and got marked in all 38 documents as per Exs.D1 to D38.
24. The trial Court after recording the evidence and considering the oral and documentary evidence, answered issue Nos.1 to 8 and additional issue No.1 in the negative and consequently, dismissed the suit of the plaintiffs. The plaintiffs aggrieved by the judgment and decree passed by the trial Court has preferred this appeal.
25. Learned counsel for the appellant Sri.P.D.Surana for Sri Raju S. contended that the judgment and decree passed by the trial Court is contrary to law and on facts. The trial Court has not at all considered the pleadings and evidence properly and erroneously proceeded to pass the impugned judgment by dismissing the suit of the plaintiffs
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RFA No. 869 of 2024and declined to grant the relief of declaration, possession and permanent injunction.
26. It is contended that one Sri Channagiriyappa was the owner of the suit schedule property bearing Sy.No.28, measuring 8 acre 11 guntas, sold to Smt.Vijayalakshmi and Sri.S.R.Yogananda under registered sale deed dated 31.01.1969 (Ex.P2). In turn, Smt.Vijayalakshmi through her G.P.A holder Smt.Ramadevi and Sri.Yogananda sold the 'A' schedule property to Sri.B.C.Chinnappa under registered sale deed dated 13.12.1978 (Ex.P3), who in turn sold the same to plaintiff No.3 under registered sale deed dated 12.04.1990 (Ex.P4). Thus, the entire property was sold and purchased by appellant No.3. The Western boundary of Sy.No.28/2 as shown in Ex.P2 dated 31.01.1969, wherein, it is mentioned as "West by Sy.No.27 and Kodipalya Village line excluding the road running in Sy.No.28". It is clear that the Western boundary in Ex.P3 dated 13.12.1978 and Ex.P4 dated 12.04.1990 was wrongly mentioned/omitted. The trial Court without reference to the title of the original vendor held that "Yadalu-Makalu Road" bifurcates the property in Sy.No.27 and property in Sy.No.28 of Nagarur Village and the same is
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RFA No. 869 of 2024against the oral and documentary evidence produced before the trial Court.
27. It is contended that the trial Court failed to note that, in para No.4 of the plaint, it is clearly explained that suit schedule 'B' property was then measured, surveyed and land measuring 8 acres 11 guntas excluding the road passing through the schedule property was the subject matter of the sale deed dated 31.01.1969 (Ex.P2). Thus, the finding of the trial Court that suit schedule 'B' property is not part of Sy.No.28/2 of Nagarur Village and the road bifurcated the property in Sy.Nos.28/2, 28/1 and 27, is contrary to the evidence on record. Further, the defendant in his written statement contended that the appellants were put in possession only to the extent of 7 acres 16 guntas of land and not 8 acre 11 guntas in Sy.No.28 as mentioned in the sale deed. The vendor of the appellants has retained the remaining portion with him and he is in possession of the same from the year 1990. Under such circumstances, the trial Court ought to have decreed the suit holding that the defendant has been in unlawful possession of schedule 'B' property.
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RFA No. 869 of 2024
28. The counsel further contended that as per sketch (survey details)-Ex.P22, Makali-Yadalu road passes through Sy.Nos.28/1 and 28/2 of Nagarur Village. Initially, the sketch was disputed by the defendant, subsequently, by virtue of the order passed by learned Single Judge in WP No.9480 of 2019, the same has become an admitted document. Therefore, as per Ex.P22 - sketch (survey details) Makali-Yadalu road passes through Sy.No.28/2 and portion of the said survey number is on the Western side of the said road, which is schedule 'B' property. But the trial Court has given wrong finding that, the road separates Sy.Nos.28/2 and 27 of Nagarur Village, the said finding is against the evidence. It shows that the trial Court has not properly appreciated Ex.P22-sketch (survey details).
29. It is contended that the trial Court failed to appreciate Ex.D25-rough sketch, which is produced by the defendant. In Ex.D25, the plaintiffs' property in Sy.No.28/2 measures 6 acre 36 guntas on the Eastern side of Makali- Yadalu road. On the Western side of the said road, in the same survey number, there is property measuring 1 acre
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RFA No. 869 of 202415 guntas in Sy.No.28/2. These two properties are in Sy.No.28/2 and the same is separated by Makali-Yadalu road and the same comes to 8 acres 11 guntas. Therefore, Ex.D25
- sketch clearly shows five guntas of land in Sy.No.28/1 on the Western side of Makali-Yadalu road. This extent tallied with the extent shown in Ex.P2, Ex.P3 and Ex.P4 and in the rough sketch at Ex.D25, which is clearly mentioned in schedule 'B' property. On the Eastern side of schedule 'B' property, the property of defendant in Sy.No.27/4 is shown. It is clear that Makali-Yadalu road is passing through Sy.No.28/2 and it does not separate Sy.No.27 and Sy.No.28/2. It is also clear that the defendant has encroached on the portion of the property in Sy.No.28/2 shown in schedule 'B' property and thus, the trial Court ought to have decreed the suit in favour of the plaintiffs. Further, the appellants' title deeds and revenue sketch clearly establish the fact that the defendant has encroached upon schedule 'B' property, on which, he has no right, title and interest, on the other hand, 'B' schedule property exclusively belongs to the appellants. It is contended that the initial mistake in mentioning the boundary in Ex.P3 dated 13.12.1978 has resulted in all subsequent mistake/errors. In
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RFA No. 869 of 2024view of the fact that the boundary was wrongly mentioned in Exs.P3 and P4 and the same is reason for wrong mentioning of boundary in the conversion order-Ex.D2. But the trial Court has not considered this factual and legal aspect and it has proceeded to dismiss the suit.
30. Hence, on these grounds, learned counsel prays to set aside the judgment and decree passed by the trial Court and also prayed to decree the suit of the plaintiffs.
31. Per contra, Sri S.S. Naganand, learned Senior Counsel appearing for Sri Vijay Kumar Desai, learned counsel for the respondent, vehemently contended that the plaintiffs have failed to prove that suit schedule 'B' property is part of the land in Sy.Nos.28/1 and 28/2 of Nagaruru Village, Nelamangala Taluk, and they are the absolute owners of suit schedule 'B' property and the defendant has encroached over suit schedule 'B' property and has put up unauthorized fencing to it. Hence, the trial Court considering the oral evidence of PWs.1 and 2, DW1, Exhibited documents at Exs.P1 to P30 and Exs.D1 to D38, dismissed the suit of the plaintiffs and consequently, the trial Court declined to grant the relief of declaration, possession and mandatory
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RFA No. 869 of 2024injunction. Learned counsel further contended that none of the plaintiffs were examined on oath to prove their case. However, their G.P.A holder- one Sri.Vinod C. was examined on oath as PW1. Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. Hence, he relied upon the decision of the Hon'ble Supreme Court in the case of MOHINDER KAUR vs. SANT PAUL SINGH reported in (2019) 9 SCC 358. Further, he submits that no proper verification of plaint was done by the original plaintiffs. Suit was filed by the appellants/plaintiffs through their Power of Attorney Holder Sri G. Mathiraj, and he is not examined before the trial Court and the alleged General Power of Attorney is not produced and marked in the case. So there is no proper verification of the plaint, which is bad under Order VI, Rule 15 of CPC.
32. Learned counsel further submits that the appellants have filed an application before this Hon'ble Court to permit them to produce certain additional documents. The said application is misconceived and does not satisfy the
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RFA No. 869 of 2024requirements as contemplated under Order 41, Rule 27 of CPC and hence cannot be entertained. The affidavit filed in support of their application is very bald and no satisfying reasons are assigned as to why they could not produce the said documents earlier. Even otherwise, the additional documents sought to be produced are inconsequential. Official Survey Report at Ex.P22 produced by the appellants was marked by the trial Court and the trial Court has duly considered the said Survey Report as per the direction of this Hon'ble Court in W.P.No.25960/2023. The trial Court dismissed the suit filed by the appellants after consideration of the said Survey Report. In the light of official Survey Report at Ex.P22 having been considered by the trial Court, all other documents, which the appellants are now seeking to introduce under Order 41, Rule 27 of CPC, carry no meaning and are inconsequential and said application deserves to be rejected. Besides, the additional documents sought to be introduced by the appellants have no bearing upon the legal issue involved viz., that the boundaries will always prevail over the area and extent. The law laid down by the Hon'ble Supreme Court of India in this regard is binding. There cannot be any departure from the same. The Rectification
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RFA No. 869 of 2024Deed dated 10.08.2023, which the appellants are seeking to introduce by invoking Order 41, Rule 27 of CPC, is purely an afterthought to withdraw admissions in cross-examination and it is a created document and does not carry any meaning in view of the categorical admission by Mr. B C Suman Chandra (PW2) in his cross-examination that "Western boundary shown as road is the correct boundary". The admissions of PW1 and PW2 cannot be withdrawn and duly recorded evidence before the trial Court cannot be discarded. Said Rectification Deed cannot be used to build a new edifice where none existed earlier. Besides, Mr. B C Suman Chandra (PW2) did not disclose in his affidavit evidence dated 09.10.2023 regarding the alleged Rectification Deed and he clearly suppressed it. Similarly, even the appellants also suppressed the purported document viz., Rectification deed with malicious intent and they did not reveal it in their evidence affidavit. Further, when the respective Sale Deeds viz., Ex.P4 dated 12.04.1990 and Ex.D27 dated 14.05.1990 were executed by a common vendor viz., Mr. B C Chinnappa, there cannot be any doubt that the intention of the parties to the said Sale Deeds with respect to boundaries will prevail. The said intention of the original vendor viz.,
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RFA No. 869 of 2024Mr. B C Chinnappa, cannot be altered and substituted by merely executing a Rectification Deed by a legal representative viz., Mr. B C Suman Chandra (PW2), who has categorically admitted in the cross-examination that the Western boundary shown as road is the correct boundary. It is well established that the legitimate occasion for application of Order 41, Rule 27 of CPC, is when, on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, not where a discovery is made, of fresh evidence and the application is made to import it. Hence, he prays that for the aforesaid reasons, the application for additional evidence does not arise for consideration and accordingly, prays for dismissal of the appeal.
33. In view of the submissions made by the learned counsel for both parties, the points that would arise for our consideration are:
I. Whether the appellants / plaintiffs proved that suit schedule 'B' property is part of land in Sy.Nos.28/1 and 28/2 of Nagarur village, Nelamangala taluk and plaintiffs are the absolute owners of 'B' schedule property?
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II. Whether the plaintiffs proved that the defendant has encroached 'B' schedule property and has put up unauthorized fencing to it, hence, they are entitled for the reliefs as sought for?
III. Whether the plaintiffs proved that the judgment and decree passed by the trial Court requires to be interfered with?
34. In this case, it is the specific case of the plaintiffs that they are the absolute owners of the suit schedule properties bearing Sy.Nos.28/1 and 28/2, which is shown as 'A' suit schedule property. The defendant encroached a portion of the land in 'A' suit schedule property, which is 'B' suit schedule property and the defendant is in possession of the same.
35. Learned counsel for the appellants contended that Exs.P2-Sale Deed dated 31.01.1969 was executed by Sri.Channagiriyappa, S/o. Sri.Govinda Gowda, in favour of Sri.S.R. Yogananda and Smt.Vijaya. Under Ex.P2, an extent of 8 acre and 11 guntas of land, being the Southern half portion of Sy.No.28 of Nagaruru Village, is sold. In Ex.P2, the boundaries of properties were clear, but due to mistake, Western boundary was not mentioned in Exs.P3 and P4-Sale
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RFA No. 869 of 2024Deeds. Hence, it is just and necessary to ascertain the boundaries given in Exs.P2 to P4-Sale Deeds, which are as follows:
1. Exh.P2 - Sale Deed dated 31.01.1969 executed by Channagiriyappa S/o Govinda Gowda, in favour of Sri S.R. Yogananada and Smt. Vijaya. Under this Sale Deed, an extent of 08 acres 11 guntas of land, being southern half portion of Sy.No.28 of Nagaruru village is sold. The boundaries given in the said Sale Deed are as follows:
North by : Northern half of Sy.No.28
belonging to Smt.Nanjamma and
her family members
South by : Gomala land in Sy.No.28.
East by : Aluru village boundary.
West by : Sy.No.27, Kodipalya Village
Boundary line Excluding the
road running in Sy.No.28.
This property is described as item No.1 in the Schedule-A of the plaint.
2. Exh.P.3: Sale Deed dated 13.12.1978 executed by Vijayalakshmi and Yoganananda in favour of Sri B.C.Chinnappa. Under this Sale Deed, 08 acres 11 guntas of land purchased in Ex+h.P.2 is sold in favour of B.C.Chinnappa. In this Sale Deed, the schedule is shown as follows:-
North by: Northern half portion of Sy.No.28 South by:Sy.No.27.
East by: Aluru village boundary line
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(Note: the western boundary is not Stated in the Sale Deed).
For clarity purpose, the property covered under this Sale Deed is mentioned as item No.2 of the suit Schedule-A property.
NOTE:
Item No.1 in the Schedule-A property and item No.2 in the Schedule-A property and item No.3 in the Schedule- A property are all relating to one and the same properties i.e. relating to 08 Acres 11 guntas of land on Nagaruru Village. The schedules are given sale deed- wise.
3. Exh.P.4 - Sale Deed dated 12.04.1990 -
Sri B.C.Chinnappa the purchaser in Exh.P.3, has executed a Sale Deed in favour of Sri Asha Uttam Chandani, in respect of 08 acres 11 guntas of land in Sy.No.28/2. The boundaries in this Sale Deed are mentioned as follows:
East by: Aluru village boundary.
West by: Makali road to Yadalu (this is the mistake Occurring in the Sale Deed).
North by: Land in Sy.No.28.
South by: Government gomala land.
This Sale Deed relates to 08 acres 11 guntas of land being southern portion of Sy.No.28 and which was numbered as 'Sy.No.28/2'. Thus, for clarity purposes the property which is the subject-matter of Exh.P4 is described as item No.3 in the Schedule-A to the plaint.
36. Learned counsel for the appellants contended that the defendant by misusing the error crept in Exs.P2 to P4- Sale Deeds has encroached 'B' schedule property, which is a portion of 'A' schedule property and this aspect came to the
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RFA No. 869 of 2024knowledge of the appellants only when they received notice with respect to encroachment of Government land and thus, they approached the jurisdictional Tahsildar and made representation and as such, Haddubastu survey was conducted. After conducting the survey, it was found that the defendant encroached the portion of 'A' schedule property, which is described as 'B' schedule property. Thus, the plaintiffs had approached jurisdictional Police, but they did not take any action. More importantly, the plaintiffs have also requested the defendant to handover the possession, but the defendant failed to do so.
37. In the instant case, we have perused the boundaries depicted in Exs.P2 to P4-Sale Deeds. It is clear that towards Western side of 'B' schedule property, there is Survey No.27, which is the property of the defendant and thereafter, there is boundary of Kodipalya Village.
38. The plaintiffs got examined the son of the vendor of the plaintiffs, who has stated that, his father, Sri.B.C. Chinnappa, had purchased the property under Sale Deed dated 13.12.1978, but due to oversight, the Western boundary was left out. He has also stated that the Sale Deed
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RFA No. 869 of 2024dated 31.01.1969 clearly shown towards Western boundary, Sy.No.27 and Kodipalya Village boundary line excluding the road running in Sy.No.28. In the cross-examination of PW1, he has categorically admitted that towards Western portion of schedule in Ex.P4-Sale Deed, it is shown as Makali Road, however, he volunteered that said entry was wrong. He further admitted that towards Western of 'A' schedule property, there is Makali Road, vide Ex.D2A. Further, as per Ex.D3(a)-Sale Deed dated 14.05.1999, towards Western side of 'A' schedule property, there is Makali Road. However, the appellants have taken a plea that such entry had been crept in wrongly in the Sale Deed. If at all, said entry in the Sale Deed was wrong, the Authorities must have shown different location in Ex.D2-copy of conversion order. It is pertinent to note that Ex.D2-copy of conversion order establishes that there is Makali Road towards Western side of 'A' schedule property. From the perusal of the material available on record, the plaintiffs had knowledge about the mentioning of Western boundary, more particularly, Makali-Yadalu Road, which is abutting to 'A' schedule property. Now, after expiry of almost 40 years, the plaintiffs are now claiming that entry has been wrongly crept in the Sale Deeds.
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RFA No. 869 of 2024
39. However, in the cross-examination, he admitted that Makali Road has been shown towards Western side as per Ex.D3. He also admitted that Makali-Yadalu Road shown in Ex.P4-Sale Deed dated 12.04.1990 is correct, which shows that there is a road from Makali to Yadalu towards Western side of 'A' schedule property. Hence, there is nothing on record to prove that 'B' schedule property is part of Sy.Nos.28/1 and 28/2.
40. Further it is the specific contention of the plaintiffs that as per Ex.P2, which is the original registered sale deed dated 31.01.1969 executed by Sri.Yogananda and Smt.Vijaya in favour of Sri.Channagiriyappa vendor of plaintiffs that towards Western side, the schedule was correctly stated and in the later sale deeds, due to mistake, boundaries towards Western side is not stated properly and in order to appreciate said aspect, if we peruse Ex.P2 - original sale deed dated 31.01.1969, wherein, the schedule of sale deed towards Western boundary, there is property bearing Sy.No.27 and Kodipalya Village boundary line excluding the road running in Sy.No.28 are seen. Now the question would arise as to whether the road is running after Sy.No.27 and Kodipalya Village or the road bifurcates Sy.No.27 from Sy.No.28/1 and Sy.No.28/2, which is described as suit 'B'
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RFA No. 869 of 2024schedule property.
41. Further in order to appreciate the same, it is worthwhile to refer the survey report, which is marked as Ex.P21 and Ex.P22. Further, it is pertinent to note that earlier the order of survey was challenged by the defendant before this Court in WP No.9480/2019 dated 13.03.2019, which is marked as Ex.D9. Learned counsel for the plaintiffs had produced memo dated 12.12.2023 along with certified copy of the order in WP No.9480/2019 dated 24.11.2023, which goes to show that the defendant has withdrawn the said writ petition. In W.P. No.25960/2023 dated 29.11.2023, this Court has held that in view of withdrawal of WP No.9480/2019, the Court can rely on Exs.P21 and P22 and can appreciate the same according to the law.
42. Further Ex.P22 which is the survey sketch goes to show property bearing Sy.No.28/1 in yellow colour and below the same Sy.No.28/2 is shown in blue colour and towards West, there is a boundary of Kodipalya Village and below Kodipalya Village, there is property bearing Sy.No.27. In between Sy.Nos.28/1 and 28/2 and boundary of Kodipalya Village and Sy.No.27, there is thin dotted line which bifurcates both
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RFA No. 869 of 2024properties and the same is nothing but the road, which separate both properties. In the sketch, the surveyor has not stated anything about encroachment by owner of Sy.No.27 and also he has not mentioned any extent by owner of Sy.No.27 or any other adjacent property owners and hence, the documents produced by the plaintiffs itself goes to show that there is a road which separates Sy.No.28/1 and Sy.No.28/2 from Sy.No.27 and Kodipalya Village and hence, if at all the defendant has to encroach any portion in Sy.No.28/1 or Sy.No.28/2, then he has to encroach the road and thereafter the property of the plaintiffs.
43. In this case, the burden of proof lies with the plaintiffs, but they have failed to prove that suit 'B' schedule property is part of the land in Survey Nos.28/1 and 28/2 of Nagaruru Village, Nelamangala Taluk, and they are the absolute owners of suit 'B' schedule property and the defendant has encroached over the suit 'B' schedule property and has put up unauthorized fencing to it. The official survey report at Ex.P22 produced by the appellants clearly establishes that towards western side of 'A' schedule property, there is Makali-Yadalu Road, but the plaintiffs have taken contention that, the entry was wrongly made towards western side of 'A' schedule
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RFA No. 869 of 2024property. In fact, the boundaries always prevail over the area and extent. Even in the cross-examination of PWs.1 and 2, they have categorically admitted that 'western boundary' shown as road is the correct boundary. The admissions of PWs.1 and 2 cannot be withdrawn.
44. In this appeal, the appellants have filed interim application under Order 47, Rule 23 of CPC along with Rectification Deed executed by PW2. We have perused the Rectification Deed, however, PW2-B.C. Suman Chandra did not disclose in his evidence regarding alleged Rectification Deed and he had clearly suppressed it. Even the plaintiffs also suppressed this purported document and they did not reveal it in their evidence. In fact, Ex.P4 and Ex.D27-Sale Deeds were executed by a common vendor, by name, B.C. Chinnappa. Therefore, there cannot be any doubt that the intention of the parties to the Sale Deeds with respect to boundaries will prevail. The intention of original vendor Sri B.C. Chinnappa cannot be altered and substituted by merely executing a Rectification Deed by his legal representative (PW2). Further, PW2 has admitted that western boundary shown as road is the correct boundary. Therefore, it is well established principle of law that while allowing application filed under Order 41, Rule 7
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RFA No. 869 of 2024CPC, there must be some inherent lacunae or defect becomes apparent, under such circumstances, a fresh evidence is required, whereas in this case, since PW2 admitted the western boundary by referring the contents of Ex.P2 and Ex.D27, the question of grant of permission to lead evidence under Order 41, Rule 7 of CPC does not arise.
45. In this case, more importantly, the possession of suit 'B' schedule property was never handed over to the plaintiffs by their vendors. The boundary towards western side is shown as Makali Road. Hence, for three to four decades, it was not an issue between the parties and now, since the Department of Forest issued notice and conducted survey, the plaintiffs came to know about the decrease in the extent of their land.
46. In order to prove the contentions of the plaintiffs, the plaintiffs did not enter the witness box, but their GPA, Vinod C., was examined as PW1. Where a party to the suit does not appear in the witness box and states his own contentions on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct.
47. In the instant appeal, the respondent/defendant
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RFA No. 869 of 2024mainly contended that the defendant has perfected his title by adverse possession in respect of 'B' schedule property.
48. The Hon'ble Apex Court in the case of SMT. PILLA AKKAYYAMMA AND OTHERS vs. CHANNAPPA, SINCE DEAD BY L.RS. AND ANOTHER, reported in ILR 2015 KAR 3841 has discussed in detail about the title by adverse possession. The relevant paragraph read as under:
"26. The expression 'title by adverse possession' is not merely an equitable but a complete legal title. The law creates and confers the title arising from adverse possession. It does not flow from a contract between the parties which could be reduced to writing and put on record. There is no privity between the possessor and him, who is dispossessed, and the right of the former does not result from any act of the latter, but is the effect given by the law to his possession.
49. 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 others' rights but denies them. Possession implies dominion and control and the consciousness in the mind of the person having dominion over an object that he has it and can exercise it. Mere possession of the land would not ripen into possessory title. Possessor must have animus possidendi and
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RFA No. 869 of 2024hold the land adverse to the title of the true owner. Occupation only implies bare use of the land without any right to retain it. In order to constitute adverse possession, there must be actual possession of a person claiming as of right by himself or by persons deriving title from him. To prove title to the land by adverse possession, it is not sufficient to show that some acts of possession have been done. The possession required must be adequate in continuity, in publicity and in extent to show that it is adverse to the owner. In other words, the possession must be actual, visible, exclusive, and hostile and continued during the time necessary to create a bar under the statute of limitation.
28. In T. ANJANAPPA AND OTHERS v.
SOMALINGAPPA AND ANOTHER [(2006) 7 SCC 570] , the Apex Court has held that mere possession however long does not necessarily mean that it is adverse to the true owner and the classical requirement of acquisition of title by adverse possession is that such possessions are in denial of the true owner's tide. It has been held thus:
"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
- 37 -RFA No. 869 of 2024
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."
50. An owner is the person, who holds legal title to the property. The ownership consists of a bundle of rights over some property. Ownership grants the owner three fundamental rights, namely, right to possession, right to enjoy and right to dispose. The owner of the property is not only entitled to possess, but also has the right to exclude all others from the possession or enjoyment of it. If the owner is wrongly deprived possession, he has a right to recover possession from any person, who may possess it. But an absolute owner may deprive himself of such right by an assignment, e.g., grant of lease, and may thereby become a limited owner. The right to possession may be limited or restricted in various ways, either by a voluntary act or involuntarily. An owner who has, however, suffered a limitation in respect of his right to possession can hardly be regarded as an absolute owner.
51. In a suit falling under Article 65 of the Limitation Act, plaintiff must establish his title to the property. He need
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RFA No. 869 of 2024not prove that he was in possession within 12 years. If he fails to prove his title, the suit fails, and the question of adverse possession does not arise in such a case. When the plaintiff has established his title to a land, the burden of proving that he has lost that title by reason of the adverse possession of the defendant lies upon the defendant. If the defendant fails to prove that he has been in adverse possession for more than 12 years, the plaintiff is entitled to succeed simply on the strength of his title. A person alleging that he has become owner of immovable property by adverse possession must establish that he was in possession of the property peaceably, openly and in assertion of a tide hostile to the real owner. Stricter proof is required to establish acquisition of title by adverse possession for the statutory period.
31. In ANNAKILI vs. A. VEDANAYAGAM AND OTHERS [(2007) 14 SCC 308], the Apex Court has held that when a suit is for possession based on title and the defendant resisting the suit on the basis of hostile title, burden of proof lies on the defendant to show that he/she was in possession of the said property on the basis of hostile title since past 12 years which has resulted in extinguishing the title of plaintiff. It has been held thus:
"It was not obligatory on the part of the respondent-plaintiff's seeking possession to file a suit for declaration of their title also. As the title of the respondents in the suit property had already been adjudicated upon, a suit for recovery of possession on the basis of the said title attracted Article 65 of the
- 39 -RFA No. 869 of 2024
Schedule appended to the Limitation Act, 1963. In terms of the said provision, it was for the appellant- defendant to show that she and her predecessor had been in possession of the suit property on the basis of the hostile title and as a result whereof the title of the respondent-plaintiffs stood extinguished."
It has been further held as under:
"24. Claim by adverse possession has two elements:
(1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well-settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in the said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more does not ripen into a title."
52. It is also settled that plea of adverse possession is not a pure question of law, but a mixed question of fact and law. Therefore, a person, who claims adverse possession should plead and establish on what date he came into possession, what was the nature of his possession, whether factum possession was known to the other party, how long his possession has continued and his possession was open and undisturbed. However, declaration of ownership of land on the basis of adverse possession cannot be sought by the plaintiffs. But the
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RFA No. 869 of 2024claim of ownership by adverse possession can be made by way of defence when arrayed as defendant in the suit against him.
34. In DR. MAHESH CHAND SHARMA vs. RAJ KUMARI SHARMA (SMT) AND OTHERS [(1996) 8 SCC 128], the Supreme Court has held that the plea of adverse possession is not a pure question of law but a mixed question of fact and law. The party pleading adverse possession must state with sufficient clarity as to when his adverse possession commenced and the nature of his possession. 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 the facts necessary to establish his adverse possession.
36.The same position has been reiterated in D.N. VENKATARAYAPPA AND ANOTHER vs. STATE OF KARNATAKA AND OTHERS [(1997) 7 SCC 567]. It has been held that the petitioners were required to plead and prove that they disclaimed the title under which they came into possession, set up adverse possession with necessary animus of asserting open and hostile title to the knowledge of the true owner and the owner allowed them, without any let or hindrance, to remain in possession and enjoyment of the property adverse to his interest until the expiry of the prescribed period. That having not been done, plea of adverse possession cannot be held to be proved.
37. In KARNATAKA BOARD OF WAKF vs. GOVERNMENT OF INDIA AND OTHERS [(2004) 10 SCC 779], the Apex Court has again held that a person pleading adverse possession has no equities in his favour and since such a person is trying to defeat the rights of the true owner, it is for him to clearly plead and establish necessary fact; to establish his adverse possession. It has been held thus:
"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 wont 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
- 41 -RFA No. 869 of 2024
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. Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish ail facts necessary to establish his adverse possession"
It has been further held as under:
"A plaintiff, filing a title suit, should be very clear about the origin of title over the property. He must specifically plead it. The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced ............In this case, the respondent obtained title under the provisions of the Ancient Monuments Act. But, the alternative plea of adverse possession by the respondent is unsustainable. The element of the respondent's possession of the suit property to the exclusion of the appellant with the animus to possess it is not specifically pleaded and proved. So are the aspects of earlier title of the appellant or the point of time of disposition."
38. In CHATTI KONATI RAO AND OTHERS vs. PALLE VENKATA SUBBA RAO [(2010) 14 SCC 316], it has been held that in a claim of adverse possession, there are no equities in favour of claimant. Therefore, the
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RFA No. 869 of 2024claimant must clearly plead and establish all facts necessary to establish adverse possession. It has been held as under:
"15. Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner. duration of possession and that possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. The plea of adverse possession is not a pure question of law but a blended one of fact and law."
(emphasis supplied by me)
39. Recently, the Hon'ble Supreme Court in GURDWARA SAHIB vs. GRAM PANCHAYAT VILLAGE SIRTHALA AND ANOTHER [(2014) 1 SCC 669], has held that even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to that effect. Only if the proceedings are filed against it, it can use this adverse possession as a shield/defence. It is held thus:
"8. There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence."
53. In the instant case, in the written statement, the defendant has taken the plea that he has perfected his title by
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RFA No. 869 of 2024way of adverse possession and he is in peaceful possession over 'B' Schedule property. Defendant has also taken contention that the plaintiffs approached him in the year 1993 and 1996 and demanded possession of 'B' schedule property, but he refused to deliver the same. If this statement is taken for consideration as admission on the part of the defendant, it would be clear that there is encroachment by the defendant in respect of 'B' schedule property. However, if we peruse the written statement entirely for consideration, it appears that, the defendant has taken alternative plea and hence, this is not clear admission on the part of the defendant and it does not help to the case of plaintiffs to any extent, so as to prove that 'B' schedule property is part of Sy.No.28/1 and Sy.No.28/2 and the defendant has encroached the 'B' schedule property. Therefore, the plaintiffs cannot succeed on the weakness of the defendant and use such weakness as trump card to the case of the plaintiffs.
54. Sofar as exact location of the 'B' schedule property is concerned, the plaintiffs described 'B' schedule which is as follows:
- 44 -RFA No. 869 of 2024
East : road West : Sy.No.27 and Kodipalya village boundary line North : Kodipalya village boundary line South : Sy.No.29 and road providing access to the lands
55. From perusal of the above boundaries, it appears that towards Western side of 'B' schedule property, there is Sy.No.27, which is the property of the defendant and thereafter, there is a boundary of Kodipalya village. In the cross examination of PW1, he has admitted that "towards Western portion of schedule in Ex.P4, it is shown as Makali road". PW1 has voluntarily stated that said entry is wrong. He further admitted that in Ex.D2(a), Ex.D3(a), towards West, there is a Makali road. However, PW1 voluntarily stated that said entry had been wrongly crept in Ex.D2 and Ex.D3. According to the plaintiffs, said entries were wrongly entered in sale deeds. However, it is pertinent to note that Ex.D2 conversion order clearly show about existence of Makali road towards Western side. It is admitted fact that in order to secure conversion order, the competent authority would conduct survey. If the Survey Authorities had conducted survey, then the plaintiffs would have had knowledge about the encroachment portion, but the plaintiffs after lapse of four
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RFA No. 869 of 2024decades claimed that entry has been wrongly crept in the sale deeds. Therefore, PW1 as well as the plaintiffs have made improvement in order to overcome the recitals made in Ex.D2 and it amounts to self serving statement.
56. In order to substantiate the contentions of the plaintiffs, they examined PW2 - Sri.B.C. Suman Chandra, who is none other than the son of vendor of the plaintiffs. He has stated that his father had purchased the property under the sale deed dated 13.12.1978, however, due to oversight, Western boundary is left out and the sale deed dated 31.01.1969 clearly reveals that towards Western boundary, there is land bearing Sy.No.27 and Kodipalya village, excluding the road running in Sy.No.28, however, in the cross examination, he admitted that as per Ex.D3, there is Makali road shown towards Western side in the schedule. He further admitted that Makali - Yadalu road shown in Ex.D4 is correct. It clearly establishes that there is a road from Makali to Yadalu towards Western side of 'B' schedule property. We have perused Ex.P2 original sale deed dated 31.01.1969, wherein in the schedule, towards Western boundary, there is property bearing Sy.No.27 and Kodipalya village boundary line, excluding the road running in Sy.No.28. We have perused Exs.P21 and
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RFA No. 869 of 2024P22 - Survey sketch and report. As per survey sketch, it clearly shown that property bearing Sy.No.28/1 in yellow color and below Sy.No.28/2 is shown in blue color and towards West, there is a boundary of Kodipalya village and below Kodipalya village, there is property bearing Sy.No.27. In between land bearing Sy.Nos.28/1 and 28/2 and boundary of Kodipalya village and Sy.No.27, there is thin dotted line which bifurcates both properties and it is road, which separate both properties. In Ex.P22, the Surveyor has not stated anything about encroachment by owner of Sy.No.27 and the Surveyor has not mentioned any extent by owner of Sy.No.27 or any other adjacent property owners. Hence, it clearly establishes that, there is a road which separates Sy.Nos.28/1 and 28/2 from Sy.No.27 and Kodipalya village.
57. In this case, none of the plaintiffs entered the witness box and adduced evidence. They got examined their power of attorney. Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to the cross examined by the other side, a presumption would arise that the case set up by him is not correct. Similar ratio is laid down by the Hon'ble Apex Court in the case of Mohindar Kaur Vs. Sant Paul Singh reported in
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RFA No. 869 of 2024(2019) 9 SCC 358.
58. In view of the foregoing discussion, it is clear that the plaintiffs have failed to prove that the defendant encroached 'B' schedule property. The trial Court has discussed the oral evidence of the parties and perused exhibited documents and passed a well reasoned judgment, thus, it do not require any interference by this Court. Accordingly, the appeal filed by the appellants is liable to be dismissed. Accordingly, it is dismissed.
No order as to costs.
Sd/-
(K.SOMASHEKAR) JUDGE Sd/-
(VENKATESH NAIK T) JUDGE MN