Karnataka High Court

Smt Puttagangamma vs Sri Rangaraju on 6 January, 2023

Bench: Sachin Shankar Magadum

                             1


      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 6TH DAY OF JANUARY, 2023

                          BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

            R.S.A.NO.506 OF 2007 (DEC & INJ)
BETWEEN:

1. SMT. PUTTAGANGAMMA
SINCE DEAD BY LRS

A). SMT. SUBBALAKSHAMMA
W/O H N JAYRAJU,
AGED ABOUT 56 YRS, R/AT NO.104, B BLOCK,
ISRO QUARTERS, VIJAYANAGAR, 2 STAGE,
BANGALORE-40

2. SRI M C NARAYANA RAJU
S/O LATE CHIKKA MUNISWAMY RAJU
AGED ABOUT 51 YRS

3. SRI M. C GOVINDARAJU
S/O LATE CHIKKAMUNISWAMY RAJU
AGED ABOUT 39 YRS

4. SRI M C VASANTHA RAJU
S/O LATE CHIKKAMUNISWAMY RAJU
AGED ABOUT 37 YRS

APPELLANTS NO.2 TO 4 ARE
R/O MYLANAHALLI VILLAGE,
JALA HOBLI, BANGALORE NORTH TALUK.
                                              ...APPELLANTS
(BY SRI.NITHESH.K.N, ADVOCATE FOR SRI.K V NARASIMHAN,
ADVOCATE)
                              2


AND:

RANGARAJU
DEAD BY LRS.

A. SRI.RAMESH RAJU,
S/O LATE RANGA RAJU,
AGED ABOUT 52 YEARS

B. SRI.SRINIVASA RAJU,
S/O LATE RANGA RAJU,
AGED ABOUT 48 YEARS

BOTH ARE R/AT MYLANAHALLI VILLAGE
JALA HOBLI, BANGALORE NORTH TALUK.

C. SMT.RAJALAKSHMI,
W/O LAKSHMIPATHI RAJU,
AGED ABOUT 46 YEARS,
R/AT DODDABAJANEMANE ROAD,
CHICKBALLAPURA TOWN.

(AMENDED V/C/O DTD: 28.02.2018)
                                           ...RESPONDENTS
(BY SRI.S.K.NAGARATHNA, ADVOCATE FOR R1(A-C))

     THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT    &  DECREE    DATED 31.10.2006     PASSED    IN
R.A.NO.31/2006 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) &
JMFC, DEVANAHALLI, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGEMENT AND DECREE DATED: 15.1.2005 PASSED IN
OS.NO.276/1992 ON THE FILE OF THE ADDL.CIVIL JUDGE (JR.DN.)
& JMFC, DEVANAHALLI.

    THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                        3


                                JUDGMENT

The captioned second appeal is filed by the plaintiffs

feeling aggrieved by the judgment and decree of the Courts

below wherein plaintiff's suit seeking relief of declaration and

possession is dismissed by both the Courts.

2. For the sake of brevity, the parties are referred to

as per their rank before the trial Court.

3. This Court deems it fit to refer to the family tree as

it is relevant for effective adjudication of the controversy

between the parties. The family tree is as under:

Muluvagilu Raju |

-------------------------------------------------------------------------

| | | | Puttamma Doddamuniswamy Raju Chikkamuniswamy Raju Narasimharaju | |

-----------------------------------------------------

      |               |                           |
Rangamma         Rangaraju          Puttarangamma(Pltf No.1)
                (Defendant)         W/o Chikkamuniswamy Raju
                                                   |

------------------------------------------------

                                    |                     |               |
                             Narayana Raju         Govindaraju Vasantharaju
                             (Pltf No.2)          (Pltf No.3)      (Pltf No.4)

4. The plaintiff No.1 and defendant Rangaraju are

brother and sister. Both are children of one Puttamma. The

plaintiff No.1 is given in marriage to the brother of Puttamma.

The present plaintiffs have filed the suit seeking possession

which is based on title. The plaintiffs contended that the suit

land was owned by Chikkamuniswamy Raju and after his

death, the plaintiffs being the only class-I heirs i.e., widow

and children have inherited the property left behind by

Chikkamuniswamy Raju. It is the specific case of the plaintiffs

that after death of Chikkamuniswamy Raju, plaintiff No.1

delivered possession to defendant who is none other than her

brother on a condition that he would handover the suit land as

and when demanded. The plaintiffs alleged that the defendant

having misused the trust reposed by the plaintiff No.1, got his

name mutated to the revenue records and started acting

adversely to the interest of plaintiffs in the month of April

1992 and hence, the present suit.

5. The defendant, on receipt of summons, tendered

appearance and filed written statement and set up adverse

title contending that he has perfected his title by way of

adverse possession.

6. The plaintiffs and defendant to substantiate their

respective claim led in oral and documentary evidence.

7. The trial Court referring to the evidence on record,

drew adverse inference against the plaintiffs that though

defendant's name was mutated to the revenue records,

plaintiffs have not chosen to question those mutations. The

trial Court was of the view that if plaintiff No.1 has given a

statement indicating that her husband has given 33¼ guntas

to the defendant and if they have submitted no objection to

change the katha, the Court was of the view that having

regard to the conduct of plaintiffs in not securing any

document to substantiate their stand that defendant is in

permissive possession, the trial Court concluded by holding

that defendant has succeeded in proving his title by way of

adverse possession. Consequently, suit was dismissed.

8. Feeling aggrieved by the judgment and decree of

the trial Court, plaintiffs preferred appeal before the Appellate

Court.

9. The Appellate Court referring to the material on

record was of the view that plaintiffs have admitted that

possession was handed over to defendant two years after the

death of first plaintiff's husband. Therefore, Appellate Court

was of the view that if plaintiff's husband died in 1967 and if

possession was delivered to defendant in 1969, the suit for

possession filed by the plaintiffs after 22 years is barred by

Article 64. The Appellate Court was also of the view that relief

of declaration is covered by Article 58 of Limitation Act. The

Appellate Court was of the view that cause of action accrued

to the plaintiff in 1985 and therefore, plaintiffs ought to have

brought into action by approaching the Court within three

years as stipulated under Article 58 of Limitation Act. The

Appellate Court though did not concur with the findings of the

trial Court in regard to plea of adverse possession, however,

proceeded to dismiss the suit on the ground that plaintiff's

relief of possession squarely falls under Section 6 of the

Specific Relief Act and therefore, the present suit is hit by

Article 64 of the Limitation Act. On these set of reasonings,

the Appellate Court having partially concurred with the

findings of the trial Court has proceeded to dismiss the appeal.

10. This Court vide order dated 24.04.2009 was

pleased to admit the appeal on the following substantial

questions of law:

"1) When admittedly the plaintiff's husband was the owner of the property, in the absence of any registered document under which the title of the property is transferred to the defendant, whether the Courts below were justified in declining to grant the relief of declaration in favour of the plaintiff?

2) When admittedly the defendant has set up a plea of permissive possession by virtue of mutation

entry and voluntary statement made by the plaintiff and her children, whether the defendant's plea of adverse possession is sustainable in the facts of the case?"

11. Heard learned counsel appearing for the plaintiffs

and learned counsel appearing for the defendant. Perused the

concurrent judgments rendered by both the Courts below. I

have also given my anxious consideration to the judgment

cited by the learned counsel appearing for the plaintiffs.

12. The plaintiffs have instituted the present suit

seeking relief of declaration and consequential relief of

possession. The plaintiffs assert and claim to be the absolute

owners of the property. It is the specific case of the plaintiffs

that suit property measuring 33¼ guntas was admittedly

owned by Chikkamuniswamy Raju who is the husband of

plaintiff No.1 and father of plaintiff Nos.2 to 4. The plaintiffs

traced title by contending that agricultural land bearing

Sy.No.77/1 was totally measuring 1 acre 26½ guntas and that

husband of plaintiff No.1 - Chikkamuniswamy Raju and his

brother Narasimha Raju jointly purchased under registered

sale deed dated 18.04.1963. The plaintiffs further pleaded

that there was a partition between first plaintiff's husband and

his brother and first plaintiff's husband was allotted 33¼

guntas which is the subject matter of the present suit. The

plaintiffs are asserting possession by contending that

defendant is in permissive possession.

13. The defendant has set up a plea of adverse

possession. Para 9(ii) and 9(iii) would be relevant and the

same is culled out as under:

"(ii) In the year 1967 the first plaintiff's husband died and after his death, the land was held by said brothers transferred by I.H.R. proceedings into the joint names of first plaintiff and Narasimha Raju. In the year 1969-70 the joint family has been divided the suit schedule land fallen to the share of Chikkamuniswamy Raju and another half has been taken by Narasimha Raju. The plaintiffs have gave the suit schedule lands to the defendant since the defendant and his mother were brought to their family

and lived as members of the said family as the defendant and his mother were also intended to live separately. Since then the defendant is in lawful possession and enjoyment of the suit schedule lands as owner thereof. In the year 1972 the defendant and Narasimha Raju intended to dig open well in the middle of the total land held by them by taking loan from the P.L.D. Bank, Devanahalli. Since the khata of the said land was in the joint names of first plaintiff and Narasimha Raju, the loan records are prepared in their names only. After taking loan, defendant and Narasimha Raju dig a well and utilised the water equally and also paid the loan amount equally and loan gets discharged;

(iii) In the year 1985, the plaintiffs and the defendant intends to transfer the khata of the suit schedule lands into the name of the defendant and made application to that effect. The Revenue Officer i.e., the Tahsildar, Devanahalli, after recording the statements of the plaintiffs and Narasimha Raju and after drawing mahazar, changed the khata of the entire land measuring 1 acre and 26 ½ guntas in Sy.No.77/1 of Mylanahalli Village into the joint names of defendant and Narasimha Raju. Since from 1985 and onwards all the revenue records such as R.T.C., Tax Paid Receipts, etc., are standing in the joint

names of defendant and Narasimharaju. Defendant submits that even though he was in peaceful possession and enjoyment of the suit schedule land earlier to 1985, i.e., from the date of his separation, the revenue records were stood in the joint names of first plaintiff and Narasimha Raju. But the defendant is in actual possession as owner thereof and paid the loan amount and land revenue in respect of the suit schedule lands without interference whatsoever either from plaintiffs or any other persons."

14. If the averments made in para 9(ii) and 9(iii) are

meticulously examined, then this Court is of the view that

possession of defendant is clearly a gratuitous possession. As

per his own version in the written statement, what can be

gathered is that plaintiff No.1 who is the sister delivered

possession to defendant. At para 9(ii), defendant claims that

he was in lawful possession and enjoyment over the suit

schedule property.

15. The concept of adverse possession in India is more

than a century old concept of law which is primarily based on

three fundamental principles. Firstly, competing rights of

ownership between the actual owner and the person taking

care of the land. Right of a person taking care of the land and

making highest and best use of the land would prevail over

the actual title holder of the land who does not take care of

the land. Secondly, the title of the land should not be kept in

abeyance for a long period of time i.e., a situation should not

arise in which the title holder of the land is not known.

Thirdly, it is presumed that the actual title holder has

abandoned his possessory rights despite knowing that some

other person is claiming hostile possession over his land but

he chooses to keep quite and not taking any action against the

said person as provided under the law.

16. Non-use of the property by the owner even for a

long time won't affect his title. But the position will be altered

when another person takes possession of the property and

asserts a right over it. Adverse possession is a hostile

possession by clearly asserting hostile title in denial of the title

of true owner. It is a well-settled principle that a party

claiming adverse possession must prove that his possession is

'nec vi, nec clam, nec precario' that is, peaceful, open and

continuous. The possession must be adequate in continuity in

publicity and in extent to show that their possession is adverse

to the true owner. It must start with a wrongful disposition of

the rightful owner and be actual, visible, exclusive, hostile and

continued over the statutory period.

17. The concept of adverse possession has been well

settled by the judicial committee of the Privy Council in 1907

in Perry v Clissold1, wherein it was held that:

"It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period of prescribed by the provisions of the statue of Limitation applicable to the case, his right is forever

(1907) A.C. 73

extinguished and the possessory owner acquires an absolute title."

18. The decision of the Privy Council though not binding

on the Supreme Court but still the said decision was upheld by

three Judges of the Hon'ble Supreme Court in the case of Nair

Service Society vs. K.C. Alexander reported in AIR 1968

SC 1165. The Hon'ble Apex Court in the case of

P.T.Munichikkanna Reddy and Others vs. Revamma and

Others2 further laid down certain guidelines regarding the

enquiry to be held by the Courts while deciding the plea of

adverse possession. The Hon'ble Apex Court has held that;

"Therefore, to assess a claim of adverse possession, two-pronged enquiry is required;

1. Application of limitation provision thereby jurisprudentially "willful neglect" element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.

(2007) 6 SCC 59

2. Specific Positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distances from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property."

19. Plea of adverse possession is not a pure question of

law but a blended one of fact and law. Whenever the plea of

adverse possession is projected, inherent in the plea is that

someone else was the owner of the property therefore, the

plea on title and adverse possession are mutually inconsistent

and the latter does not begin to operate until the former is

renounced. In DAGADABAI (DEAD) BY LRS V ABBAS @

GULAB RUSTUM PINJARI3, the Hon'ble Apex Court held that

a person, who acquires title by adverse possession, has to first

admit the ownership of the true owner over the property

before claiming ownership on the strength of adverse

possession.

(2017) 13 SCC 705

20. If defendant has to assert hostile animus, it is

equally important to ascertain whether plaintiff has willfully

neglected and had abandoned his rights over the suit schedule

property despite knowing that defendant was asserting hostile

possession. Then the Court has to examine and ascertain

whether there was any positive intention on the part of the

defendant to dispossess which would effectively shift the title

already distanced from the paper owner to the adverse

possessor.

21. In the light of the principles discussed supra, now

let me examine as to whether defendant has succeeded in

making out that he has perfected his title by way of adverse

possession. From bare reading of the averments made in the

written statement which are culled out supra, two things

emerge. One is, defendant admits that property was owned

by the husband of plaintiff No.1. All that he has stated in the

above culled out paragraph in the written statement is that

plaintiffs themselves have given the suit land to the defendant

as defendant and his mother lived as family members with the

plaintiffs. If these relevant pleadings are looked into, then the

requisite ingredients of adverse possession are found to be

totally missing in the present case on hand. The physical act

of exclusion, possession and animus possidendi to hold as a

owner in exclusion to the actual owner are totally found

missing in the present case on hand.

22. It is in this background, this Court would find that

Appellate Court erred in holding that relief of declaration

sought by plaintiffs is barred by limitation. What is lost sight

is that there is absolutely no dispute insofar as title of

plaintiffs is concerned. The defendant apart from setting up

plea of adverse possession has admitted in unequivocal terms

that suit land was owned by first plaintiff's husband. This

Court is also unable to understand as to how Appellate Court

would have unilaterally applied Section 64 of Limitation Act.

The present suit for possession is based on title and plaintiffs

title is not in dispute. Therefore, the Appellate Court erred in

applying Article 64 while non-suiting the plaintiff. The

plaintiffs never claimed that they were dispossessed by

defendant highhandedly. It is their specific case that after

the death of first plaintiff's husband, possession was delivered

to defendant and that defendant is in permissive possession,

while defendant claims that he has perfected his title by way

of adverse possession.

23. It is trite law that mere possession irrespective of

the length of time would not in itself constitute adverse

possession. To prove adverse possession, defendant has to

also place on record to indicate that plaintiffs who are true

owners have abandoned their right acknowledging the hostile

animus attitude of the defendant. All these significant details

and requisite ingredients are found missing in the present case

on hand. The finding of the trial Court that defendant is in

exclusive possession and enjoyment in his own right and since

plaintiffs have not chosen to challenge the mutation, would

clearly establish that defendant has perfected his title by way

of adverse possession, is not only palpably erroneous but the

said conclusion arrived at by the trial Court suffers from

serious perversity. The principles governing the plea of

adverse possession is not properly considered by the trial

Court as well as by the Appellate Court.

24. It is also trite law that a litigant cannot assert title

based on entries in the revenue records. Mere entry in the

revenue records will also not constitute an act of adverse

possession. Having regard to proximity in regard to the

relationship between plaintiff No.1 and defendant, what

emerges is that under absolute trust and faith, the plaintiff

No.1 who had unfortunately lost her husband at a tender age

has fallen back on her brothers shoulder and this trust is

conveniently exploited and misused by the defendant. These

aspects are not dealt by both the Courts below. In that view

of the matter, the substantial question of law framed by this

Court have to be answered in the negative and against the

defendant.

25. For the foregoing reasons, I pass the following:

ORDER

(i) The second appeal is allowed;

(ii) The judgment and decree passed by the Appellate Court dated 31.10.2006 in R.A.No.31/2006 and judgment and decree passed by the trial Court dated 15.01.2005 in O.S.No.276/1992 are set aside. Consequently suit is decreed;