Sri Gullu G Talreja Alias Prakash G ... vs Sri Sanjay Abbas Khan
2025 Latest Caselaw 210 Kant

and 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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against 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.

- 18 -

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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15 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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view 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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injunction. 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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requirements 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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Deed 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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Mr. 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?

- 25 -

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

- 26 -

Deeds. 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

- 27 -

(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

- 28 -

knowledge 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

- 29 -

dated 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.

- 30 -

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'

- 31 -

schedule 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

- 32 -

properties 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

- 33 -

property. 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

- 34 -

CPC, 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

- 35 -

mainly 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

- 36 -

hold 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 -

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

- 38 -

not 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 -

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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claim 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 -

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

- 42 -

claimant 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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way 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:

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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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decades 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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P22 - 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

- 47 -

(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

 

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