v. Whether the mutation can be ordered by the
local body in favour of a person, who has not
filed any application for mutation?
8. It would be apposite for this Court to refer to
Sd/- 15/5
Tax. Supdt."
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9. On closer examination of the rebuttal evidence
led in by the defendant, more particularly, Ex.D9, it is
forthcoming that the defendant's mother-Siddamma
contested the application filed by the plaintiff's father -Omar
Hussain seeking mutation to the property extract. In her
objection, she has stated that she is residing in the house
since three generations and during this period, no person has
claimed title and ownership over the suit schedule property.
In the objections, she has also asserted that she has
perfected her title by adverse possession. These objections
were entertained by the CMC and an order was passed
rejecting the application filed by the plaintiff's father. Having
rejected the plaintiff's father's request to mutate, the
defendant's mother's name was duly reflected in the
property extract and that continued till filing of the suit. The
records therefore disclose that the defendant's mother made
a public claim to ownership through a paper publication on
19.09.1994 and the CMC issued a corresponding public
notice on 22.09.1994. The plaintiff's father being aware of
the said notice submitted an application for mutation which
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was objected by the defendants' mother, asserting that she
had perfected her title by adverse possession. The CMC,
after due consideration, rejected plaintiff's father's
application and mutated the name of defendant's mother on
17.12.1994. This order is never challenged until present suit
in 2006.
10. It is now well settled under Article 65 of the
Limitation Act, the period of limitation for suit for possession
based on title is 12 years from the date when the possession
of the defendant becomes adverse to the plaintiff. The
Hon'ble Apex Court in catena of judgments has explained
that adverse possession is a negative and hostile form of
possession, which must be open, continuous and hostile to
the true owner. The burden is squarely on the person
asserting adverse possession to prove that his possession
was actual, open and continuous.
11. In mutation proceedings before the local authority
i.e., CMC, the plaintiff's father's application requesting to
mutate the name is out rightly rejected by the authority.
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This rejection is in the year 1994. Thus, plaintiff and his
predecessor were put on notice of the hostile claim as early
as in 1994. In fact, objections and affidavit tendered by
defendant's mother asserts possession prior to 1994
proceedings. She has claimed that they are in possession
since 60 years and there are no rival claims to the suit
property.
12. From the rebuttal evidence led in by the
defendant, the defendant has succeeded in demonstrating
that his mother was in settled possession adverse to the
plaintiff's title, if any, prior to 1994. In view of cogent and
clinching rebuttal evidence led in by the defendant, the Trial
Court unnecessarily ventured into deciding the title of the
plaintiff. The core issue that was required to be addressed
and adverted to was as to whether plaintiff's right to seek
declaration and consequentially possession is hit by Section
27 of the Limitation Act conjointly read with Article 65 of the
Limitation Act.
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13. Since the rebuttal evidence clearly established
that the defendant's mother did dispute the plaintiff's title
way back in the year 1994 in mutation proceedings and
asserted possession much prior to 1994, plaintiff's father
ought to have filed suit seeking declaration of title within
three years. The consequential relief of possession squarely
depends upon establishment of plaintiff's title over the suit
schedule property. Since the plaintiff's father did not seek
declaration within three years, the present suit is clearly hit
by Article 58 of the Limitation Act. Moreover, since the
defendant has succeeded in substantiating that his mother
has succeeded in perfecting her title, the relief of possession
is also clearly hit by Article 65 of the Limitation Act.
14. Even if plaintiff succeeds in establishing his right
by way of inheritance through his grandfather- Chanda
Hussain, the fact that possession was lost much prior to
1994 and plea of adverse possession was raised for the first
time in 1994 though in mutation proceedings, there is clear
inaction on the part of plaintiff's father in instituting proper
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proceedings seeking redressal of his rights over the suit
schedule property.
15. All these crucial aspects are not at all dealt by the
Trial Court. Therefore, finding recorded by the Trial Court on
additional issue No.3 suffers from perversity and does not
advert to the mandate provided under Section 27 read with
Article 65 of the Limitation Act. The Trial Court has also not
adverted to Article 58 of the Limitation Act. Since the order
of the CMC vide Ex.D9 has in fact relegated the parties to
approach the Civil Court. This order is of the year 1994.
While plaintiff who is the son has made a feeble attempt by
instituting a suit in 2006.
16. Therefore, firstly there is no cause of action to
institute the present suit. Secondly, the suit filed by the
plaintiff is clearly barred by limitation. The rebuttal evidence
led in by the defendant clearly establishes that his mother
has perfected her title by way of adverse possession.
Therefore, the substantial questions of law Nos.(i) and (vi)
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do not survive for consideration. Substantial questions of law
Nos.(ii) to (v) are answered in affirmative.
17. For the foregoing reasons, appeal is devoid of
merits and accordingly, dismissed.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
NB
CT:SI
