Karnataka High Court
Kumari Stephani Lobo vs Kum. Sobina Lobo on 29 May, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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RSA No. 15 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
REGULAR SECOND APPEAL NO. 15 OF 2013 (DEC/INJ)
BETWEEN:
1. KUM. STEPHANI LOBO
D/O LATE XEVIER LOB,
AGED ABOUT 76 YEARS,
R/AT PADAVU HOUSE,
MOODU PERAR VILLAGE,
MANGALORE TALUK
SINCE DEAD BY LR'S
1(a) MR. OSWALD LOBO
S/O. LATE JOHN LOBO
AGED ABOUT 48 YEARS
R/O. MOODU PERAR VILLAGE
MIDDLE GARDEN HOUSE
MANGALURU TALUK
DISTRICT D.K. - 574 166
Digitally signed 1(b) ANGELINE RODRIGUES
by
NARAYANAPPA W/O. FELIX HILARI D'SOUZA
LAKSHMAMMA R/O. MODDUSHEDLE
Location: HIGH VAMANJU VILLAGE
COURT OF MANGALURU TALUK
KARNATAKA
DISTRICT D.K. - 574 166.
...APPELLANTS
(BY SRI. G BALAKRISHNA SHASTRY, ADVOCATE)
(VIDE ORDER DATED 08.04.2015 ))
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RSA No. 15 of 2013
AND:
1. KUM. SOBINA LOBO,
D/O LATE PETER LOBO,
AGED ABOUT 77 YEARS,
SINCE DEAD BY LR's.
2. KUM. FLORINE LOBO,
D/O LATE PETER LOBO,
AGED ABOUT 71 YEARS,
3. MR. ELIAS WILLIAM LOBO,
S/O LATE PETER LOBO,
AGED ABOUT 64 YEARS,
ALL ARE R/AT SWEET HOME,
BADAGAULLPADY N.G.MUTT POST,
MANGALURU TALUK D.K.
...RESPONDENTS
( R2 AND R3 SERVED AND UNREPRESENTED
VIDE ORDER DATED 07.06.2016,
R2 AND R3 TREATED AS LR's OF R-1)
THIS RSA IS FILED UNDER SECTION 100 OF C.P.C.
AGAINST THE JUDGEMENT AND DECREE DATED 17.04.2012
PASSED IN R.A.NO.477/2004 ON THE FILE OF III
ADDITIONAL DISTRICT JUDGE, D.K., MANGALORE,
DISMISSING THE APPEAL FILED AGAINST THE JUDGEMENT
AND DECREE DTD 21.12.1996 PASSED IN OS.NO.216/1990
ON THE FILE OF IV ADDITIONAL MUNSIFF, MANGALORE.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 15 of 2013
JUDGMENT
1. The appellants, who are the plaintiffs in
O.S.No.216/1990 are before this Court seeking for
the following relief:
Wherefore, it is prayed that this Hon'ble Court may
be pleased to the set-aside the judgment and
decree dated 17.04.2012 in RA.No.477/2004 on
the file of the III Additional District Judge, D.K,
Mangaluru confirming the judgment and decree
dated 21.12.1996 in passed in OS.No.216/1990 on
the file of IV Additional Munsiff at Mangaluru,
O.S.No.216/1990 be decree as prayed for and this
appeal be allowed with costs throughout.
2. The above appeal was admitted on 21.01.2020 for
consideration of the following substantial questions
of law:
1. Whether in the light of the judgment
rendered by the Hon'ble Apex Court in the
case of Ravinder Kaur Grewal Vs.Manjit Kaur
reported in (2019) 8 SCC 729, the deceased
plaintiff and his legal heirs have established
that they had perfected their title to the suit
property by way of adverse possession?
2. Whether the Courts below properly
appreciated the evidence on record to
determine the suit reliefs claimed in the plaint?
3. The appellant's who was the plaintiff in the suit
contended that the schedule property, which is
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adjoining the land owned by the plaintiff in
Sy.No.87/2 was in the possession and enjoyment of
the plaintiff. She had planted coconut plants,
cashew plants, Mango plants, jack fruit plants,
lemon plants and other fruits etc. as also cultivated
various seasonal crops. She being in possession of
the said property, it is alleged that the defendant's
were falsely representing that the said property has
been settled on the defendants in a settlement
deed dated 19.05.1976, on which basis, the
defendants were shown to be the registered owners
of the scheduled property. It is contended that all
the claims of the defendant's were false and not
substantiated either on fact or law and as such on
that basis, the aforesaid reliefs were sought for.
4. The defendants on appearance filed their written
statement denying all the averments and
allegations made in the plaint ascertaining that the
defendants were the owners of the property, they
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have not abandoned any of the rights in the said
property. The plaintiff was in the possession of the
property as a care taker, who had been appointed
to take care of the said trees. The defendants
continued to be the real and lawful owners of the
said land and as such they continued to be in both
lawful and symbolic possession of the said land. On
these basis, it is contended that relief for adverse
possession sought for, cannot be granted.
5. Evidence having been led, arguments having been
advanced, the trial Court vide its judgment dated
21.12.1996 dismissed the said suit holding that the
plaintiff was not able to make out any grounds for
adverse possession. The plaintiff having come into
possession of the property under certain documents
in a permissive manner as a care taker could not
claim adverse possession against the lawful owner.
The plaintiff has not exercised any rights and have
contended contrary to the rights of the lawful owner
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establishing the requirements of a claim for adverse
possession and on that basis, even the
consequential relief of injunction was rejected
holding that the plaintiff was not able to establish
adverse possession.
6. The first Appellate Court in R.A.No.477/2004 again
held that the plaintiff had not established the
requirements of adverse possession and there is
nothing to show that plaintiff's possession of the
property was hostile to the true owner.
7. In so far as possession is concerned, the first
Appellate Court came to a conclusion that from the
material available before the Court it can only be
construed that the possession of the plaintiff was
permissive in nature and not more than that. The
first Appellate Court also dismissed the appeal on
the ground that no adverse possession was made
out. It is challenging the said concurrent finding
that the appellant is before this Court. It is in the
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above background, I answer the substantial
questions of law framed by this Court on
21.01.2020 as under:
8. Substantial Question of Law No.1: Whether in
the light of the judgment rendered by Hon'ble
Apex Court in the case of Ravinder Kaur
Grewal vs. Manjit Kaur reported in (2019) 8
SCC 729, the deceased plaintiff and his legal
heirs have established that they had perfected
their title to the suit property by way of
adverse possession?
8.1. The Hon'ble Apex Court in Ravinder Kaur
Grewal's case categorically came to a
conclusion that for establishment of adverse
possession, the plaintiff has to plead that the
property is owned by a third party. Further
plead that the statute of limitations has
expired and that he has perfected his title by
adverse possession and then thereafter seek
for declaration of title on the basis of the
adverse possession.
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8.2. The classic requirement for establishment of a
claim for adverse possession being nec vi, nec
clam and nec precario It is required for a
person claiming adverse possession to establish
that the entry of such person into possession
was adverse and hostile to that of a true owner.
Such person is required to exercise ownership
rights over the property adverse to the
knowledge of the true owner and that the true
owner did not take any action against such
person in hostile possession for a period of
limitation and thereafter, that is for a period of
12 years or more.
8.3. In terms of all the above, it is clear that for a
plaintiff to claim title to a property by way of
adverse possession it is required for such
plaintiff to firstly state that the plaintiff is not
the owner of the property. Secondly, to admit
the ownership of the said property by the
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defendant and thereafter, however to make
averments to satisfy the requirements of being
nec vi, nec clam and nec precario as afore
detailed.
8.4. In the present case, a reading of the plaint
would indicate that the plaintiff herself has
categorically stated that the claim of title of
the defendant is false. She has asserted
ownership of the property as her own right
and further contended that the alleged
settlement of the property in favour of the
defendant under settlement deed is false and
unsubstantiate. Thus, though the plaintiff
claims to be in possession of the land in
question, she does not accept the ownership
of the defendant. Therefore, the question of
plaintiff asserting her possession over the
property in a hostile manner and adverse
manner against the plaintiff would not arise.
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The plaintiff having failed at the very first
instance in recognising the defendant to be the
owner of the property and ascertaining a title
adverse to that of the defendant, the question
of considering any further requirement to
satisfy the essentials of a claim for adverse
possession would not arise.
8.5 Thus, I answer substantial question of law No.1
by holding that the requirements for claim of
adverse possession as laid down by the Hon'ble
Apex Court in catena of decisions including that
in Ravinder Kaur Grewal's case have not
been satisfied and both the Trial Court and the
first Appellate Court were right in coming to a
conclusion that the claim for adverse
possession has not been established by the
plaintiff.
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9. Substantial question of law No. 2: Whether the
Courts below properly appreciated the
evidence on record to determine the suit reliefs
claimed in the plaint?
9.1 The prayer sought for in OS No.216/1990
having been extracted hereinabove, it is
seen that, apart from the claim of
declaration, title by way of adverse
possession, there is a further claim for
protecting the possessory right of the
plaintiff. There is no counter claim which
was filed by the defendant, nor any other
suit filed by the defendant seeking for
possession of the property.
9.2 Though both the Court of original
jurisdiction i.e., the trial Court and the first
Appellate Court have categorically come to
the conclusion that the plaintiff has been
unable to make out a case for adverse
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possession and I have also upheld the
same. The fact remains that the both the
courts have come to a conclusion that the
plaintiff is in possession contending to be
permissive possession.
9.3 Once a litigant is in possession of the
property is whether permissive or
otherwise, such possession would have to
be protected by grant of order of injunction
since such protection cannot be disturbed
without complying with the due
requirements of law.
9.4 It is trite law that even possession of a
trespasser in a property would have to be
protected and cannot be disturbed without
following the due process of law. The
Hon'ble Apex Court in Rame Gowda (D)
by L.Rs vs. M.Varadappa naidu (D) by
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L.Rs and another1 has dealt the said
issue, more particularly in para 9, which is
reproduced hereunder for easy reference:-
9. It is the settled possession or effective
possession of a person without title which would
entitle him to protect his possession even as
against the true owner. The concept of settled
possession and the right of the possessor to protect
his possession against the owner has come to be
settled by a catena of decisions. Illustratively, we
may refer to Munshi Ram v. Delhi Admn. [AIR 1968
SC 702 : (1968) 2 SCR 455 : 1968 Cri LJ 806] ,
Puran Singh v. State of Punjab [(1975) 4 SCC 518
: 1975 SCC (Cri) 608] and Ram Rattan v. State of
U.P. [(1977) 1 SCC 188 : 1977 SCC (Cri) 85] The
authorities need not be multiplied. In Munshi Ram
case [AIR 1968 SC 702 : (1968) 2 SCR 455 : 1968
Cri LJ 806] it was held that no one, including the
true owner, has a right to dispossess the
trespasser by force if the trespasser is in settled
possession of the land and in such a case unless he
is evicted in the due course of law, he is entitled to
defend his possession even against the rightful
owner. But merely stray or even intermittent acts
of trespass do not give such a right against the
true owner. The possession which a trespasser is
entitled to defend against the rightful owner must
be settled possession, extending over a sufficiently
long period of time and acquiesced to by the true
owner. A casual act of possession would not have
the effect of interrupting the possession of the
rightful owner. The rightful owner may re-enter
and reinstate himself provided he does not use
more force than is necessary. Such entry will be
viewed only as resistance to an intrusion upon his
possession which has never been lost. A stray act
of trespass, or a possession which has not matured
into settled possession, can be obstructed or
1 AIR 2004 SC 4609
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removed by the true owner even by using
necessary force. In Puran Singh case [(1975) 4
SCC 518 : 1975 SCC (Cri) 608] the Court clarified
that it is difficult to lay down any hard-and-fast rule
as to when the possession of a trespasser can
mature into settled possession. The "settled
possession" must be (i) effective, (ii) undisturbed,
and (iii) to the knowledge of the owner or without
any attempt at concealment by the trespasser. The
phrase "settled possession" does not carry any
special charm or magic in it; nor is it a ritualistic
formula which can be confined in a straitjacket. An
occupation of the property by a person as an agent
or a servant acting at the instance of the owner will
not amount to actual physical possession. The
Court laid down the following tests which may be
adopted as a working rule for determining the
attributes of "settled possession"
(i) that the trespasser must be in actual physical
possession of the property over a sufficiently long
period;
(ii) that the possession must be to the knowledge
(either express or implied) of the owner or without
any attempt at concealment by the trespasser and
which contains an element of animus possidendi.
The nature of possession of the trespasser would,
however, be a matter to be decided on the facts
and circumstances of each case;
(iii) the process of dispossession of the true owner
by the trespasser must be complete and final and
must be acquiesced to by the true owner; and
(iv) that one of the usual tests to determine the
quality of settled possession, in the case of
culturable land, would be whether or not the
trespasser, after having taken possession, had
grown any crop. If the crop had been grown by the
trespasser, then even the true owner, has no right
to destroy the crop grown by the trespasser and
take forcible possession.
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9.5 In the present case, the plaintiff being in
physical possession of the suit property
though permissive, in the event of the
defendant wanting to take over the said
possession, the defendant would have to take
recourse to law and file necessary proceedings
seeking for possession of the property from
the hands of the court having competent
jurisdiction.
9.6 In that view of the matter, both the trial Court
and the first Appellate Court having come to a
conclusion that the plaintiff is in permissive
possession neither the trial Court nor the first
Appellate Court could have deprived the relief
of injunction to the plaintiff. The said finding
not having been challenged by the defendant
in any proceeding.
9.7 I therefore, answer substantial question No.2
by holding that the courts have not
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appreciated the law applicable to the law of
injunction in respect of a person in settled
possession of a property. In that view of the
matter, I pass the following:
ORDER
i) The appeal is allowed in part.
ii) The judgement and decree dated
31.12.1996 passed in OS No.216/1990
stands modified by granting an order of
injunction in favour of the plaintiff against
the defendants restraining the defendants
from interfering with the possession of the
plaintiff in respect of the suit schedule
property, otherwise than, in accordance
with law.
Sd/-
JUDGE
AG/PRS
