Karnataka High Court

Shri Bhadra S/O Krishna Kamble vs Smt Sharada W/O Ganapati Naik on 6 November, 2024

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                                                           NC: 2024:KHC-D:16240
                                                           RSA No. 900 of 2007




                                IN THE HIGH COURT OF KARNATAKA,
                                        DHARWAD BENCH

                            DATED THIS THE 6TH DAY OF NOVEMBER, 2024

                                               BEFORE

                             THE HON'BLE MRS JUSTICE K.S.HEMALEKHA

                                  RSA NO. 900 OF 2007 (DEC/INJ)

                      BETWEEN:

                      1.     SHRI BHADRA S/O. KRISHNA KAMBLE
                             SINCE DEAD BY HIS LRS.,

                      1A. SMT. LAXMI W/O. LATE BHADRA KAMBLE,
                          AGE: 60 YEARS, OCC. HOUSEHOLD,
                          R/O. HARWADA, TQ. ANKOLA,
                          DIST. UTTAR KANNADA-581316.

                      1B. SHRI MANJUNATH S/O. LATE BHADRA KAMBLE,
                          AGE: 42 YEARS, OCC. FISHERMAN,
                          R/O. HARWADA, TQ. ANKOLA,
                          DIST. UTTAR KANNADA-581316.
         Digitally
         signed by
         VISHAL
VISHAL   NINGAPPA
NINGAPPA PATTIHAL
PATTIHAL Date:
                      1C. VINAYAKA S/O. LATE BHADRA KAMBLE,
         2024.11.13
         11:27:10
         +0530
                          AGE: 40 YEARS, OCC. FISHERMAN,
                          R/O. HARWADA, TQ. ANKOLA,
                          DIST. UTTAR KANNADA-581316.

                      1D. SMT. VIDYA VIGNESH CHOPDEKAR,
                          AGE: 37 YEARS, OCC. HOUSEHOLD,
                          R/O. H.NO.469, TALPONA,
                          POINGUINIM CANACONA,
                          SOUTH GOA, GOA-403702.

                      1E.    NETRAVATI NITIN ANKOLEKAR
                             AGE: 35 YEARS, OCC. PRIVATE SERVICE,
                             R/O. HOUSE NO.2007 A/7,
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                                     NC: 2024:KHC-D:16240
                                     RSA No. 900 of 2007




     PADBHANABHANAGAR,
     BAAD NANDANGADDA, TQ. KARWAR,
     DIST. UTTAR KANNADA-501304.
                                          ... APPELLANTS
(BY SRI. NARAYAN V YAJI, ADVOCATE)

AND:

1.   SMT. SHARADA W/O. GANAPATI NAIK,
     AGE: ABOUT 45 YEARS, OCC. HOUSEHOLD,
     R/O. HARWADA, TQ. ANKOLA,
     DIST. UTTARA KANNADA.

2.   SMT. JAYANTI
     W/O. SHIVA NAIK,
     AGE: 72 YEARS, OCC. ROYT AND HOUSEHOLD,
     R/O. HARWADA, TQ. ANKOLA,
     DIST. UTTARA KANNADA.

3.   SHRI ANANDU
     S/O. LOKU NAIK, AGE: 53 YEARS,
     OCC. RYOT, R/O. HARWADA,
     TQ. ANKOLA, DIST. UTTARA KANNADA.

                                         ... RESPONDENTS

(BY SRI. T M NADAF, ADVOCATE FOR R1 AND R2;
R3-ABATED)

     THIS RSA IS FILED U/S 100 CPC AGAINST THE
JUDGMENT AND DECREE DATED 27.02.2007 PASSED IN
RA.NO. 11/2006 ON THE FILE OF THE CIVIL JUDGE
(SR.DN.), KUMTA, PARTLY ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
19.12.2003 PASSED IN OS.NO. 78/2002 ON THE FILE OF
THE CIVIL JUDGE (JR.DN.), ANKOLA.

     THIS APPEAL, COMING ON FOR FURTHER HEARING,
THIS DAY JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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                                                   NC: 2024:KHC-D:16240
                                                   RSA No. 900 of 2007




                         ORAL JUDGMENT

(PER: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA)

Assailing the illegality and correctness of the

judgment and decree in R.A. No.11/2006 dated

27.02.2007 (hereinafter referred to as the 'First Appellate

Court', for short), dismissing the suit and reversing the

judgment and decree in O.S No.78/2002 dated

19.12.2003 (hereinafter referred to as the 'trial Court', for

short), the plaintiff is before this Court in regular second

appeal.

2. This Court while admitting the appeal framed

the following substantial question of law on 04.04.2007:

"Whether the lower appellate Court was justified in reversing the judgment and decree of the trial Court on the ground the plaintiffs have not admitted the ownership of the defendants to the suit schedule property and, therefore, they are not entitled to the declaration they have perfected their title by adverse possession?

NC: 2024:KHC-D:16240

3. Learned counsel for the appellants and the

learned counsel appearing for the respondents have been

heard on the substantial question of law framed by this

Court.

4. Suit of the plaintiff is for declaration declaring

that he is the owner of the suit property by way of adverse

possession and for consequential relief of permanent

injunction. Suit property is Sy.No.334A Hissa 16

measuring 6 acres 8 annas situated at Harawada Village in

Ankola Taluka, Uttar Kannada District by letters 'ABC 'in

the hand sketch map. According to the plaintiff he

purchased the suit property under a registered sale deed

dated 15.07.1981 from defendant No.3, and he is in actual

possession and enjoyment of the suit property. It is stated

by the plaintiff that his name has been entered in revenue

records as per ME No.3483 and he is in possession of the

same. Further, from the year 1985-86 plaintiff's name was

deleted, since then for more than 20 years he has been in

possession continuously adverse to the knowledge of the

NC: 2024:KHC-D:16240

defendants and thus, the plaintiff has perfected his title

over suit property by way of adverse possession.

5. Defendant Nos.1 and 2 filed written statement

inter alia denying the plaint averments and specifically

contended that defendant No.3 had no absolute right over

the suit property to execute sale deed in favor of the

plaintiff, sale deed executed is null and void. Defendants

No.1 and 2 denied the possession of the plaintiff over the

suit property and about any construction as contended by

the plaintiff. The case of the defendants is that the plaintiff

requested defendant Nos.1 and 2 to permit him to stay in

the suit property, as his property was acquired by the

Indian Navy for Sea Bird project and on humanitarian

grounds, the defendants permitted the plaintiff to stay in

the suit property by constructing a house in some portion

of the suit land.

6. The trial Court based on the pleadings framed

necessary issues. In order to substantiate his claim, the

plaintiff examined himself as PW1 one witness as PW2 and

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marked documents at Exs.P1 to P13. On the other hand,

defendant No.1 examined as DW1 and marked documents

at Exs.D1 to D10.

7. The trial Court arrived at a conclusion that the

plaintiff has established that he has become the owner of

the suit property by way of adverse possession and

restrained the defendants from interfering with the

possession of the plaintiff by granting relief of permanent

injunction.

8. Feeling aggrieved, the defendants preferred

appeal before the First Appellate Court. The First Appellate

Court, while re-appreciating the entire oral and

documentary evidence, reversed the judgment and decree

of the trial Court and held that the plaintiff has failed to

prove his title by way of adverse possession and dismissed

the suit of the plaintiff. Aggrieved, the plaintiff is before

this Court.

NC: 2024:KHC-D:16240

9. The claim of the plaintiff is based on a

registered sale deed said to have been executed by

defendant No.3 on 27.11.1979. The plaintiff contends that

he has been in possession of the suit property since more

than 20 years continuously adverse to the knowledge of

defendants. When a party sets up a plea of adverse

possession, he has to admit the title of the other side. In

the instant case, the plaintiff claims title under a document

which is a sale deed and adverse possession, which are

contrary to each other. The claim of adverse possession

can be set up only when he gives up his claim of

ownership, over the suit property.

10. The suit of the plaintiff is for the relief of

declaration of title by way of adverse possession. In order

to establish the plea of the adverse possession, the

principles and essential ingredients necessary are that:

(a) Possession must be open, clear, continuous and

hostile to the claim or possession of the other party.

(b) The essential ingredients must co-exist

NC: 2024:KHC-D:16240

(i) nec vi i.e., adequate in continuity

(ii) nec clam i.e., adequate in publicity

(iii) nec precario i.e., adverse to a competitor, in

denial of title and knowledge, which means the adverse

possession is proved only when possession is peaceful,

open, continuous and hostile, and merely a long period of

possession, does not translate into a right of adverse

possession.

11. Mere continuous possession for a long period of

time does not confer any title in favour of the plaintiff to

be held that he is in possession of the property adverse to

the knowledge of the defendants. The defendants

specifically contended that the plaintiff is in permissive

possession of the suit property, in light of the request

made by the plaintiff, the plea set up by the plaintiff is

adverse possession. The possession has to be pleaded by

stating in the plaint, as to when possession of plaintiff

becomes adverse to the knowledge of defendants, the

pleadings are totally silent about the said aspect. The trial

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Court totally fell in error in arriving at a conclusion that the

plaintiff has established his title by way of adverse

possession, without appreciating that the pleadings to

satisfy the ingredients of adverse possession are totally

absent in the plaint.

12. The First Appellate Court, while re-appreciating

the material on record being the last fact finding Court,

arrived at a conclusion that the ingredients necessary to

prove adverse possession had failed to be established by

the plaintiff. As stated supra the ownership and plea of

adverse possession cannot go together as held by the Apex

Court in the case of Narasamma & Ors. vs. A.

Krishnappa (Dead) through LRs.1 (Narasamma) has

taken a similar view that when the plaintiff claiming title

over the property must specifically plead when such a plea

of adverse possession is projected, it is inherent in the

nature of it that someone else is the owner of the property.

In the instant case, the plaintiff avers in the plaint that he

AIR 2020 SC 4178

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has purchased the property under registered sale deed,

when there is a claim of ownership, he has to disown this

plea and then state his possession is adverse to the

knowledge of the true, which is a condition precedent to

establish his plea of adverse possession. To claim adverse

possession, the person must provide clear evidence that the

title was hostile to the true owner. It is a well established

principle of law that until ownership is given up, the

possession will never turn into adverse possession and the

person who bases his title by adverse possession must

show by clear and unequivocal evidence that his title was

hostile to the true owner and amounted to denial of his

title. The Apex Court in the case of Narasamma has held

at para No.16, 29, 31, 32, 33, 36 and 37, which read as

under:

"16. That brought the High Court to the main aspect which resulted in the appeal being allowed i.e. the failure of the appellants herein on their plea of adverse possession. Once again, there is an elaborate discussion on the various judicial pronouncements of this Court on the plea of

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adverse possession, emphasizing that the success of this plea requires the person claiming the same to prove that he is in possession and 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 dispossession of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period."

29. We may also note that on the one hand, the appellants herein have sought to take a plea of bar of limitation vis-à-vis the original defendant claiming that possession came to them in 1976, with the suit being filed in 1989. Yet at the same time, it is claimed that the wife had title on the basis of these very documents. The claim of title from 1976 and the plea of adverse possession from 1976 cannot simultaneously hold. On the failure to establish the plea of title, it was necessary to prove as to from which date did the possession of the wife of the defendant amount to a hostile possession in a peaceful, open and continuous manner. We fail to appreciate how, on the one hand the appellants claimed that the wife of the original defendant, Appellant 1 herein, had title to

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the property in 1976 but on their failure to establish title, in the alternative, the plea of adverse possession should be recognised from the very date.

31. The question which confronts us is not the aforesaid, but whether simultaneously a plea can be taken of title and adverse possession i.e. whether it would amount to taking contradictory pleas. In this behalf, we may refer to the four judgments cited by the learned counsel for the respondent herein, which succinctly set forth the legal position.

32. In Karnataka Board of Wakf case, it has been clearly set out that a plaintiff filing a title over the property must specifically plead it. When such a plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property. In that context, it was observed in para 12 that"... The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced...."

33. The aforesaid judgment in turn relied upon the judgment in Mohan Lal (Deceased) Thr. LRs, which observed in para 4 as under:

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"4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor-in-title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e. up to completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-

A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."

36. The possession has to be in public and to the knowledge of the true owner as adverse, and this is necessary as a plea of adverse possession seeks to defeat the rights of the true owner. Thus, the law would not be readily accepting of such a case

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unless a clear and cogent basis has been made out.

37. We may also note another judicial pronouncement in Ram Nagina Rai v. Deo Kumar Rai (Deceased) by LRs and anr. dealing with a similar factual matrix i.e. where there is permissive possession given by the owner and the defendant claims that the same had become adverse. It was held that it has to be specifically pleaded and proved as to when possession becomes adverse in order for the real owner to lose title 12 years hence from that time."

13. The Apex Court in the case of Karnataka

Board of Wakf vs. Government of India & others2

has considered the essential ingredients that are

necessary for establishing the plea of adverse

possession and also held that the plea based on title of

the suit schedule property and plea of adverse

possession are mutually, exclusive, inconsistent and the

latter does not begin to operate until the former is

renounced and at para Nos.11 to 13 has held as under:

(2004)10 SCC 779

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"11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina, Parsinni v. Sukhi and D.N. Venkatarayappa v. State of Karnataka.) 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

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known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma']

12. A plaintiff filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. (See S.M. Karim v. Bibi Sakina) In P. Periasami v. P Periathambi this Court ruled that:

"Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property."

The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar that is similar to the case in hand, this Court held:

"4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest

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and that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e. up to completing the period his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."

13. As we have already found, the respondent obtained title under the provisions of the Ancient Monuments Act. 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. Consequently, the alternative plea of adverse possession by the respondent is unsustainable. The High Court ought not to have found the case in their favour on this ground."

14. The First Appellate Court has rightly held that

the plaintiff is not entitled for declaration by way of

adverse possession, the substantial question of law framed

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by this court is answered against the appellant. The

manner in which the first appellate court has considered

the entire oral and documentary evidence, this court is of

the considered view that the same does not warrant any

interference in this appeal, accordingly, this Court pass the

following: