(PER: THE HON'BLE MR. JUSTICE C M JOSHI)
First Appellate Court in R.A.No.32/2007 dated 26.02.2009.
2. The factual matrix that is necessary for the purpose
3. On service of summons, the defendants appeared
a. They denied that the plaintiff-Gangavva had
purchased the suit schedule property in her individual capacity.
b. It is submitted that one Jambaiah had two wives
namely, Sanna Akkamma and the plaintiff. Sanna Akkamma was
since she had no independent income. There were similar other
the said Jambaiah. It is contended that neither Sanna Akkamma
the properties.
c. They further contended that the defendants are in
been paying their municipal taxes. It is contended that plaintiff
never raised any claim about the ownership. The defendant No.2
believed that suit property belongs to her exclusively. Therefore,
property. After demise of Sanna Akkamma, defendant No.2
succession. Therefore, it was contended that defendant No.2 has
such, they have perfected the title. They contended that the
dismissed. They also contended that the valuation of the suit is
not proper and correct.
d. In their additional written statement, they contended
daughters also. Therefore, the suit suffers from non-joinder of
4. On the basis of the above contentions, the Trial Court
6. Whether the 1st Defendant proves that the suit is
not properly valued?
7. What order or decree?
Whether the suit is bad for non-pleading of
necessary parties?"
"1. Whether additional issue has to be raised
regarding adverse possession?
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2. Whether finding of the trial court that plaintiff
has proved her title in the Suit Schedule Property is
correct?
3. Whether finding of the trial court that, court fee
paid by the plaintiff is correct?
4. Whether judgment of the trial court calls for
interference?
5. What Order?"
8. Answering them in favour of the appellants, it
reversed the judgment of the Trial Court and dismissed the suit.
Being aggrieved, the plaintiffs are before this Court in appeal. At
the time of admission, this Court has framed the following
substantial questions of law:
Substantial questions of law:
"i. Whether the First Appellate Court has committed
a serious error in reversing the judgment and
decree of the trial Court, the moment title is
established by the plaintiff and no adverse
possession being pleaded and proved by the
defendant?
ii. Whether the First Appellate Court has committed
a serious error in ignoring the material evidence on
record, more particularly, the entries found in the
revenue records and in not drawing a presumption
under Section 133 of Karnataka Land Revenue Act
and Section 114 of the Evidence Act, and thus the
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judgment and decree of the First Appellate Court is
perverse?"
9. The arguments by learned counsel appearing for the
appellants and the learned counsel for the respondents were
heard.
ARGUMENTS:
10. The learned counsel appearing for the appellants
submits that the ingredients of adverse possession were not
pleaded in the written statement of the defendants. The date
from which the possession of the defendants became adverse is
also not pleaded in the written statement and therefore, the First
Appellate Court erred in holding that the defendants have
perfected the title.
11. It is further contended that the records in respect of
the suit schedule property, particularly the municipal records
stand in the name of the plaintiff and therefore, there is a
presumption under Section 133 of the Karnataka Land Revenue
Act, 1964 which can be applied to the case on hand mutatis
mutandis and therefore, the inferences drawn by the First
Appellate Court are not proper and correct. It is submitted that
the property was purchased by Gangavva and therefore, such
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property acquired in her name becomes her absolute property. It
is not open for the defendants to go behind the purchase in the
name of Gangavva and find the source of such purchase. It may
be true that certain other properties were purchased in the joint
name of the plaintiff and Sanna Akkamma -the mother of the
defendants. But that would not help the defendants in any way
to draw a presumption that the suit schedule property is also the
joint property of the plaintiff and Sanna Akkamma. It is
contended that though it is true that plaintiff and Sanna
Akkamma were the two wives of Jambaiah, that would not lead
to an inference that the property belongs to the plaintiff as well
as Sanna Akkamma. Therefore, the inferences drawn by the First
Appellate Court are not sustainable in law.
12. In this regard, he placed reliance on the judgment in
the case of T. Anjanappa and others V/s. Somalingappa
and another1, where the Hon'ble Apex Court has laid down the
ingredients of adverse position in paragraph Nos.12 and 15, it
was observed as below:
"12. The concept of adverse possession
contemplates a hostile possession i.e. a possession
(2006) 7 SCC 570
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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 the
other's rights but denies them. The principle of law is
firmly established that a person who bases his title on
adverse possession must show by clear and unequivocal
evidence that his possession was hostile to the real
owner and amounted to denial of his title to the property
claimed. For deciding whether the alleged acts of a
person constituted adverse possession, the animus of
the person doing those acts is the most crucial factor.
Adverse possession is commenced in wrong and is aimed
against right. A person is said to hold the property
adversely to the real owner when that person in denial
of the owner's right excluded him from the enjoyment of
his property.
13. xxxx
14. xxxx
15. An occupation of reality is inconsistent with the
right of the true owner. Where a person possesses
property in a manner in which he is not entitled to
possess it, and without anything to show that he
possesses it otherwise than an owner (that is, with the
intention of excluding all persons from it, including the
rightful owner), he is in adverse possession of it. Thus, if
A is in possession of a field of B's, he is in adverse
possession of it unless there is something to show that
his possession is consistent with a recognition of B's
title. (See Ward v. Carttar) Adverse possession is of two
kinds, according as it was adverse from the beginning,
or has become so subsequently. Thus, if a mere
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trespasser takes possession of A's property, and retains
it against him, his possession is adverse ab initio. But if
A grants a lease of land to B, or B obtains possession of
the land as A's bailiff, or guardian, or trustee, his
possession can only become adverse by some change in
his position. Adverse possession not only entitles the
adverse possessor, like every other possessor, to be
protected in his possession against all who cannot show
a better title, but also, if the adverse possessor remains
in possession for a certain period of time produces the
effect either of barring the right of the true owner, and
thus converting the possessor into the owner, or of
depriving the true owner of his right of action to recover
his property and this although the true owner is ignorant
of the adverse possessor being in occupation.
(See Rains v. Buxton)"
13. He also relied on the judgment in the case of R.
Prakash and another V/s. Smt.G. P. Marthamma2, where
also the ingredients of adverse possession are discussed.
14. Per contra, learned counsel appearing for the
respondents submits that the plaintiff-Gangavva was never in
possession of the suit schedule property and it is Sanna
Akkamma and the defendants who are residing in the suit
schedule property. He submits that after collapse of the old
house, the defendants have put up a house in the suit schedule
ILR 2000 KAR 1223
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property. It is contended that after death of mother of the
defendants, the defendants have continued to be in possession
under the impression that they have inherited the property of
their mother-Sanna Akkamma. The mother of the defendants
died in the year 1992 and therefore, the starting point of the
adverse possession is from the year 1992. It is contended that
the First Appellate Court has rightly considered the contentions
of the respondents herein, particularly on issue No.1 and 7. He
submits that the testimony of PW1 shows that he was unaware
of the fact about the purchase of the property in the name of
Gangavva and there is no evidence to show that his mother had
got independent income to purchase the suit schedule property
in the year 1953. From the year 1992 to 2005 there was no
interference in the enjoyment of the property by anybody and
therefore, the defendants have perfected their title to the suit
schedule property. It is submitted that all the ingredients of the
adverse possession have been established by the defendants and
when the possession is uninterrupted and continuous from the
year 1992 to till 2005, the necessities of proving adverse
possession have been complied by them. It is submitted that
when the contention of the defendants is that the property was
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purchased in the name of Gangavva by Jambaiah, the
defendants being none other than the children of the second wife
of Jambaiah, they are entitled to raise the question as to
whether the source for purchase of the property by Gangavva
was out of her own income or by the joint family or by the
income of Jambaiah. Therefore, it is submitted that the
impugned judgment is proper and correct. To establish that the
defendants are in possession and enjoyment of the property, he
relies on the revenue entries and submits that the presumption
under Section 133 of the Karnataka Land Revenue Act, 1964 is a
rebuttable presumption and when the evidence on record show
otherwise than the revenue entries, the impugned judgment
cannot be interfered with.
ANALYSIS AND CONCLUSIONS
15. A perusal of the pleadings of the defendants in their
written statement show that they contend that ever since the
purchase of the suit property by Jambaiah in the name of the
plaintiff-Gangavva, the defendants have been in possession and
enjoyment of the suit property. They averred in the written
statement that it is the second defendant who has been
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continuously paying municipal taxes and he had no knowledge
that it was purchased in the exclusive name of the plaintiff-
Gangavva. Plaintiff also had not raised any claim in respect of
the suit property which could override the belief of the defendant
No.2. It is averred that throughout the defendants asserted their
exclusive ownership and possession. After the demise of Sanna
Akkamma i.e.,the mother of the defendants, the second
defendant has inherited the suit property from his mother. Sanna
Akkamma died in the year 1992 and since then, he believed he is
successor in possession and enjoyment. Therefore, it is
contended that the defendant has perfected his title by adverse
possession as the sole heir of Sanna Akkamma. The construction
of the house is also one of the circumstance which shows that
the defendant had asserted his title.
16. As noted in the case of T. Anjanappa and others
referred supra, to establish adverse possession, the occupation
of reality is to be inconsistent with the right of the true owner. It
is necessary that the intention to possess the property as an
owner is essential and such intention to possess the property as
owner has to be with the full knowledge of the true owner. In
addition to that, the person claiming adverse possession should
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establish that such possession adverse to the interest of the true
owner is continuous and uninterrupted for 12 years. The hostility
of the possession to the true owner is a sine-qua-non of
establishing adverse possession. If we examine the pleadings, it
shows that the animus of asserting title over the suit schedule
property as against the true owner i.e., the plaintiffs is not
forthcoming. The written statement mentions that such adversity
to the true owner commenced when Sanna Akkamma died.
Obviously, as narrated in the written statement, Sanna
Akkamma had died in the year 1992. But nowhere, the written
statement states as to since when such adverse animus was
brought to the knowledge of the plaintiff- Gangavva or her
children.
17. A perusal of the testimony of the DW1- Katigi
Hanumanthappa, who is none other than the defendant No.2
would show that he has reiterated the averments of the written
statement in his examination in chief. It is pertinent to note that
he had no knowledge that it was purchased in the name of
Gangavva. If he had no knowledge that the property was
purchased in the name of Gangavva, and he went on paying the
taxes without ascertaining in whose name the property was
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standing and for what reason it was standing in the name of
Gangavva, it is difficult to draw an inference that the animus to
hold the property as owner against the title of Gangavva was
asserted by him. In cross-examination, he denies that Gangavva
had purchased the property on 17.06.1953 from Bharmavva and
Hulagamma. He denies that the vendors had handed over the
possession to the plaintiff- Gangavva. He denies that the
property is standing in the name of Gangavva. In his cross-
examination, he asserts that he obtained the property from his
father and it was the property acquired by his father. He denies
that Commissioner of the Municipality had issued a notice to him
on 22.02.2005 to stop the construction. He denies that any
police complaint was filed by Gangavva and others against DW1.
Therefore, the testimony of the DW1, does not show that he had
asserted his title over the suit schedule property and to the
knowledge of the plaintiff- Gangavva or her legal heirs.
18. The testimony of DW2, who is a neighbour, shows
that he does not know that the suit property was belonging to
Gangavva. He pleads that he does not know about the vendors
of the plaintiff- Gangavva and about the sale transaction. He
pleads that he does not remember that Gangavva purchased the
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property in the year 1953 and thereafter, she resided there for
about 5 years. He admits that he used to lend money to the
DW1. Therefore, his testimony in so far as it relates to the
possession of the property by the defendants become doubtful.
19. DW3 is another neighbour and he reiterates that the
defendants are residing in the property. In the cross-
examination, he admits that the Gangavva had purchased the
property in the year 1953. But denies that the vendors
Hulgamma and Bharmavva resided in the suit schedule property
till their death, even after they sold the property to Gangavva.
He denied that the house had become dilapidated and it had
fallen down in rain. Therefore, his testimony though to some
extent establish the possession of the defendants, does not
establish that such possession was adverse to the interest of the
plaintiff.
20. The cross-examination of PW1 -Katagi
Jambulingappa shows that he admits that Jambaiah was the
manager of the family, but denies that Jambaiah had purchased
the property in the name of Gangavva. Though he states that
Gangavva used to have obtain the contract of harvesting the
tamarind trees, no such documentary evidence is produced by
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the plaintiff. He denies that Sanna Akkamma was residing in the
suit property till her death. He admits that in the year 2004, he
paid the tax for 15 years at once. He denies that the defendants
have obtained loan by mortgaging the suit schedule property.
Thus, the oral testimony of the witnesses shows that the
adversity of the title and possession of the defendants was not
brought to the notice of either Gangavva or the PW1. Nowhere, it
is admitted by PW1 that the defendants were asserting that they
were the owners in title of the suit schedule property. What has
been contended is that the defendants obtained it from their
father- Jambaiah and therefore, it is to be presumed that their
possession was adverse to the interest of the plaintiffs.
21. The second aspect to be noticed is that the revenue
records which are basically the municipal records show the name
of Gangavva as the owner. Though DW1 states that he has been
paying the taxes continuously, he never bothered to verify as to
why the name of Gangavva appears in the records. The tax
receipts produced by the defendants at Exs.D13 to D17 relate to
the year 1983-1988, 1988-1990, 1997 and 2006. Whereas, the
tax receipts produced by the plaintiff are for the year 1991, 1992
to 2001, 2002 and it was paid at once in the year 2004. It was
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based on the self-assessment. Therefore, the tax receipts do not
establish anything about the assertion of the title by the
defendants. The fact remains that the property stands in the
name of Gangavva.
22. Thus, the oral testimony and the documentary
evidence available on record does not show the date from which
the hostility of the title to the plaintiff was made known to the
plaintiffs. It has come in the evidence that the plaintiffs were
residing elsewhere, and despite their resistance, the house was
constructed by the defendants. Obviously, the building
permission to construct the house is not obtained. If at all the
defendants were in possession and enjoyment adverse to the
interest of the plaintiffs, the DW1 would have known that the
name of Gangavva appears in the municipal records and that he
obtains the building permission for construction of the house.
Thus, it has to be inferred that the construction of the house was
despite the resistance by the plaintiffs as contended by them. Till
the year 2004, there is nothing on record to show that the
defendants had asserted their title over the suit schedule
property. In that view of the matter, the essential ingredients of
the adverse possession were not established by them.
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23. Coming to the impugned judgments, the Trial Court
in paragraph No.13(q), notices the tax payment receipts and
holds that they were pertaining to a different property. The Trial
Court considers the contention of the adverse possession in
detail and comes to the conclusion that plaintiffs have proved
their case. It also notices that the defendants had never
admitted the title of the plaintiff, which was an essential
ingredient of adverse possession. All along it is the case of the
defendants that they believe that the property belongs to
Jambaiah and Sanna Akkamma, and they have inherited the
property from Jambaiah and Sanna Akkamma. On this account,
the Trial Court holds that the adverse possession has not been
proved.
24. The First Appellate Court in considering the above
aspect, holds that the suggestion to the DW1 and DW2 that
vendors of Gangavva had continued to be in possession of the
property till their death is an admission by the plaintiffs and
holds that there are admissions by PW1 in this regard. In
paragraph No.17, the First Appellate Court holds as below:
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"17. On the other hand, the learned counsel for
the respondents/plaintiffs has argued that, plaintiffs
have filed the suit for declaration and possession of the
Suit Schedule Property, Suit schedule property was
purchased by late Gangamma in the year 1953. The
court has made an order of status quo. The defendants
have completed the building during the time of status-
quo order. The conduct of the defendants is to be
considered in appreciating the case of the defendants.
The application Filed U/O 1. R.10 CPC is not tenable as
there is no cause to implead the party in this appeal.
Even if there is a cause, that cause may be a separate
cause for them to file a suit. There is no evidence that,
Jambaiah had two wives. Framing of additional issue
regarding adverse possession is totally unnecessary in
view of the fact that, both the parties have understood
their case and let in their evidence. The trial court
considering the evidence of both the parties has
decided the claim of the plaintiffs. Therefore, it is
totally unnecessary to raise an additional issue in this
appeal. The appellants are at liberty to file an
application before the trial court, if there was no issue
framed regarding pleading of adverse possession. No,
such application is made by the present appellants,
when the suit was pending before the trial court. Now
they filed an application to raise additional issue only
with an intention to remand the case for fresh disposal
and to cause unnecessary delay in disposal of the
case. Therefore, there are no grounds to interfere in
the judgment and decree of the trial court. The suit is
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filed by the plaintiff based on title. Therefore, the
Article that is applicable to the case of the plaintiff is
Article 65 of the Limitation Act and not Article 64 of
the Limitation Act. Therefore, the suit filed by the
plaintiff is well within time."
25. It is pertinent to note that the First Appellate Court
holds that the right to claim the title has been lost. Evidently,
such conclusion is based on the fact that the vendors of the
plaintiff were permitted to reside in the suit schedule property
even after the sale. It is worth to note that the First Appellate
Court does not mention as to since when the possession became
hostile to the right of the plaintiffs. Therefore, the impugned
judgment of the First Appellate Court does not consider the
appreciation of the evidence by the Trial Court.
26. It is worth to note that the manner in which the
evidence has to be appreciated is succinctly dealt by the Hon'ble
Apex Court in the case of Santosh Hazari V/s. Purushottam
Tiwari3. The First Appellate Court has to traverse the line of
appreciation as is done by the Trial Court to the extent possible
and then point out where the Trial Court has gone wrong. In the
case on hand, the First Appellate Court has replaced its own
(2001) 3 SCC 179
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findings and reasonings to that of the Trial Court. Obviously, the
First Appellate Court didn't have the advantage of seeing the
demeanor of the witnesses and as such, it had to traverse the
line of conclusions traversed by the Trial Court and then point
out where it has gone wrong. Obviously, the First Appellate Court
has not done this exercise and by holding that the vendors of the
plaintiff had continued in possession till their death, holds that it
would adversely affect the title of the plaintiff. While coming to
such conclusion, it doesn't give a finding as to since when the
possession of the defendants became adverse to the title of the
plaintiff. Therefore, the conclusion of the First Appellate Court
that the defendants had perfected the title by adverse
possession is not sustainable in law.
27. Coming to the second question of law, it would not
hold this Court for much longer. The entries that were found in
the revenue records show that the property was standing in the
name of Gangavva. It is not known why the DW1 while paying
the taxes to the municipality didn't notice that it was standing in
the name of Gangavva. It has to be kept in mind that the
defendants are none else than the children of Sanna Akkamma,
who was the second wife of Jambaiah. Plaintiff-Gangavva was
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the first wife. Therefore, when the property was standing in the
name of Gangavva, the defendant No.2 had full knowledge of the
same. The First Appellate Court did not draw any inference
regarding the name of Gangavva appearing in the records.
Therefore, it appears that it overlooked the records of the
Municipality in coming to the conclusion that the defendants
have perfected their title.
28. In the light of the above discussions, both the
substantial questions of law framed by this Court are answered
in the 'affirmative'.
29. The last aspect to be considered by this Court is
about the question whether the Courts are permitted to go
beyond the sale deed standing in the name of a female Hindu
and find out who had financed such purchase. Even if we hold
that Jambaiah had spent the money for purchasing the suit
schedule property, by virtue of Section 14 of the Hindu
Succession Act, it becomes the absolute property of the woman.
There can't be any question regarding the source of the income
for purchasing the property by a woman and whatever may be
the source, the property becomes the absolute property of lady.
The judgment of a coordinate bench of this Court in the case of
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Gowramma Vs. Rangappa4 makes it very clear that the
properties standing in the name of a female member can't be
treated as a joint family property. It was observed as below:-
"It is to be noted here that when the properties
were purchased by plaintiff 1 along with the
defendant, to the extent of the half share, those
properties became absolute properties of plaintiff
1 and even the doctrine of blending is also not
applicable to the properties of female member of
the joint family. It is no doubt true that during the
course of cross-examination of PW.1, she was
testified as to what was her independent income
at the time of purchasing the property jointly with
the defendant. It was also suggested that the
family owned the other properties when the suit
schedule properties were purchased jointly by
plaintiff 1 and the defendant. Therefore, both the
Courts inferred that the properties purchased
under the registered Sale Deed of the year 1956
were also the joint family properties and upheld
the oral partition between plaintiff 1 and
defendant. Even if it is presumed that the joint
family by investing its funds has purchased a
property in the name of female member of the
family, such property becomes absolute property
of the female member and the other members of
the family have no right to ask such female
RSA No.3090/2007 dtd. 7.1.2015
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member to put the property into common
hatchpot seeking partition in respect of the
property between the members of the family. This
legal aspect has been completely overlooked by
both the Courts below."
30. The provisions of Section 14 of the Hindu Succession
Act reads as below:-
""14. Property of a female Hindu to be her
absolute property.―(1) Any property possessed
by a female Hindu, whether acquired before or
after the commencement of this Act, shall be held
by her as full owner thereof and not as a limited
owner."
31. Thus, it is very clear that whenever a property is held
by a female Hindu, it has to be treated as her own property and
the source is irrelevant. The decision of the Apex Court in the
case of Marabasappa (Dead) by LRs and Others Vs.
Ningappa (Dead) By Lrs and Others5, in paragraph No.20
and 24 observes as below:-
"20. Stridhana belonging to a woman is a property of
which she is the absolute owner and which she may
dispose of at her pleasure, if not in all cases during
(2011) SCC 451
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coverture, in all cases during widowhood. Since the
plaintiffs have proved that Parwateva had not
alienated the property by executing a will in favour of
defendant 5 during her lifetime, the property is the
absolute property of Parwatevva and would not be
available for partition among the members of joint
family since it does not partake the character of joint
family property.
xxxxxxxx
24. Section 14 of the Hindu Succession Act, 1956 clearly
mandates that any property of a female Hindu is her
absolute property and she, therefore, has full ownership.
The Explanation to sub-section (1) further clarifies that a
Hindu woman has full ownership over any property that
she has acquired on her own or as stridhana. As a
consequence, she may dispose of the same as per her
wish, and that the same shall not be treated as a part of
the joint Hindu family property."
32. Thus, from the perusal of the above judgment of the
Apex Court, it is clear that the individual property of a female
Hindu doesn't partake the character of the joint family property.
Therefore, the mandate of Section 14 of the Hindu Succession
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Act can't be taken away by a contention that the said property
was financed by Jambaiah.
33. When the property stands in the name of a female
Hindu, it has to be presumed that it is her self-acquired property
whatever the source may be. In that view of the matter, the
defendants could not have raised the contention that Jambaiah
had purchased the property in the name of Gangavva. For these
reasons, the impugned judgment of the First Appellate Court is
not sustainable in law. In the result, the appeal deserves to be
allowed and the judgment of the Trial Court needs to be
restored. Hence the following:
ORDER
i. The appeal is allowed.
ii. The impugned judgment of the First Appellate
Court in R.A.No.32/2007 is hereby set aside.
iii. The judgment of the Trial Court in
O.S.No.132/2005 is thereby confirmed.
SD/-
(C M JOSHI)
JUDGE
RKM, CT:PA
LIST NO.: 1 SL NO.: 53
