[Cites 19, Cited by 0]
Karnataka High Court
Lambani Teekya Naik vs Lambani Neelya Naik By His Lrs on 6 April, 2026
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RSA No. 5140 of 2008
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 6TH DAY OF APRIL 2026
BEFORE
THE HON'BLE MRS JUSTICE GEETHA K.B.
REGULAR SECOND APPEAL NO. 5140 OF 2008 (-)
BETWEEN
LAMBANI TEEKYA NAIK,
SINCE DECEASED BY HIS LR
LAMBANI BHOJYA NAIK,
S/O. LAMBANI TEKKYA NAIK,
AGE: 29 YEARS, OCC: AGRICULTURE,
R/O. TUMBINAKERI DODDATANDA,
TQ: HADAGALI, DIST: BALLARI-583216.
...APPELLANT
(BY SRI. MAHESH WODEYAR, ADVOCATE)
AND
LAMBANI NEELYA NAIK
BY HIS LRS
Digitally signed
by BHARATHI
HM
Location: HIGH
COURT OF
KARNATAKA,
1. SMT. LAMBANI KESALI BAI,
DHARWAD
BENCH W/O. LAMBANI NEELYA NAIK,
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O. TUMBINAKERI DODDATANDA,
TQ: HADAGALI, DIST: BALLARI-583216.
2. SMT. LAMBANI GANGALIBAI,
W/O. LAMBANI HEMLYA NAIK,
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O. GOVINDPUR THANDA,
TQ: HADAGALI, DIST: BALLARI-583216.
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RSA No. 5140 of 2008
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3. LAMBANI VALYA NAIK,
S/O. LATE NEELYA NAIK,
SINCE DECEASED BY HIS LR'S
3(A) SMT. SUSHILABAI
W/O. LAMBANI VALYA NAIK,
AGE: 55 YEARS, OCC: HOUSEHOLD,
R/O. TUMBINAKERI DODDATANDA,
TQ: HADAGALI, DIST: BALLARI-583216.
3(B) KRISHNA NAIK
S/O. LAMBANI VALYA NAIK,
AGE: 35 YEARS, OCC: BANK MANAGER,
R/O. TUMBINAKERI DODDATANDA,
TQ: HADAGALI, DIST: BALLARI-583216.
3(C) VINOD
S/O. LAMBANI VALYA NAIK,
AGE: 33 YEARS, OCC: DOCTOR,
R/O. TUMBINAKERI DODDATANDA,
TQ: HADAGALI, DIST: BALLARI-583216.
3(D) LATHA
D/O. LAMBANI VALYA NAIK,
AGE: 30 YEARS, OCC: HOUSEHOLD,
R/O. TUMBINAKERI DODDATANDA,
TQ: HADAGALI, DIST: BALLARI-583216.
3(E) CHETAN
S/O. LAMBANI VALYA NAIK,
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O. TUMBINAKERI DODDATANDA,
TQ: HADAGALI, DIST: BALLARI-583216.
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RSA No. 5140 of 2008
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3(F) MEGHARAJ
S/O. LAMBANI VALYA NAIK,
AGE: 26 YEARS, OCC: BUSINESS,
R/O. TUMBINAKERI DODDATANDA,
TQ: HADAGALI, DIST: BALLARI-583216.
4. LAMBANI NANYA NAIK,
S/O. LAMBANI NEELYA NAIK,
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O. TUMBINAKERI DODDATANDA,
TQ: HADAGALI, DIST: BALLARI-583216.
...RESPONDENTS
(BY SRI. H.M. DHARIGOND, ADVOCATE FOR
SRI. RAVI HEGDE, ADVOCATE FOR R1 & R4;
SRI. VINAYKUMAR BHAT, ADVOCATE FOR R3(A-F);
NOTICE TO R2 IS HELD SUFFICIENT)
THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING
TO CALL FOR THE RECORDS; SET ASIDE THE JUDGMENT AND
DECREE DATED 30.07.2008 PASSED BY THE PRL. CIVIL JUDGE
(SR. DN.) AND JMFC HOSPET IN R.A. NO.26/2007 AND
CONSEQUENTLY CONFIRM THE JUDGMENT AND DECREE DATED
20/12/2006 PASSED BY THE CIVIL JUDGE (JR.DN.) HADAGALI
IN O.S.NO.74/1997 IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 01.04.2026 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, DELIVERED THE
FOLLOWING:
CORAM: THE HON'BLE MRS JUSTICE GEETHA K.B.
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RSA No. 5140 of 2008
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CAV JUDGMENT
This is the appeal filed under Section 100 of the Code
of Civil Procedure by the appellant/plaintiff praying for
setting aside the judgment and decree dated 30.07.2008 in
R.A.No.26/2007 on the file of Principal Civil Judge (Sr.Dvn)
and J.M.F.C., Hospet; consequently to confirm the judgment
and decree dated 20.12.2006 passed in O.S.No.74/1997 on
the file of Civil Judge (Jr.Dvn) and J.M.F.C., Hadagalli.
2. Parties would be referred with their ranks, as
they were before trial Court for sake of convenience and
clarity.
3. Plaintiff has filed the suit before trial Court
praying for the relief of declaration that he is the absolute
owner of suit schedule property; for possession of suit
schedule property directing defendants to deliver vacant
possession of suit schedule property in favour of plaintiff;
for mesne profits at ₹800/- per annum against defendants
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from 1993, till handing over possession to plaintiff for Court
costs and for such other reasons.
4. The case of plaintiff before trial Court in nutshell
is that, plaintiff has purchased the suit schedule property
bearing Sy.No.147-A measuring 4 acres 95 cents situated at
Thumbinakeri Village within the jurisdiction of Hadagalli
village under the registered sale deed dated 03.01.1968
from its previous owner Chigateri Imambee, wife of
Hussainsab, resident of Hirehadagali. Defendant No.1
admitted and signed as witness to said registered sale deed.
Plaintiff all along is in possession and enjoyment of suit
schedule property from the date of purchase i.e. from 1993.
Plaintiff has got right, title and interest in or over suit
schedule property. Defendant Nos.1 and 2 have no manner
of right, title and interest in or over the suit schedule
property, but they are illegally and high handedly occupied
the suit schedule property since three years and high
handedly illegally taking crops every year worth ₹.800/-,
excluding costs; therefore, defendant Nos.1 and 2 are liable
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to repay the mesne profits. Plaintiff has filed criminal case
in private complaint No.16/96 against defendant Nos.1 and
2 and one Kesali Bai which is pending for consideration. On
08.09.1992, defendant No.1, clandestinely got his name
entered in register of sale deed and record of rights and
purchased the suit land from one Sri.Huchi Dodda
Guddappa, who is not the real owner of suit schedule
property. Defendants are not in possession of suit schedule
property at any time, till 1992. The alleged sale deed of
defendant No.1 is not binding on plaintiff as he is not party
to it. The first defendant's name appeared in record of
rights nominally without hearing an enquiry by the revenue
authorities. Thus, those entries are not binding on plaintiff.
Hence, the suit for appropriate reasons.
5. After filing the suit, defendant Nos.1 and 2
appeared through their counsel and defendant No.2 filed his
written statement, which is being adopted by defendant
No.1. In the written statement, defendant No.2 has denied
the entire plaint averments including the purchase of suit
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schedule property by plaintiff in the year 1968, he is one of
the attestors to it, etc. He contended that, at no point of
time, plaintiff is in possession of suit schedule property up
to 1993 as contended by him. Defendant No.1 has
purchased suit schedule property and Sy.No.147-B
measuring 3 acres 90 cents which are situated in one block
from the erstwhile owner Sri.Huchi Dodda Guddappa for a
sum of ₹.600/- under a registered sale deed dated
06.03.1961. Soon after such purchase, Patta Book is
mutated into the name of defendant No.1. Defendant Nos.1
and 2 have all along enjoying the suit schedule property in
their own right, title and interest. In the subsequent
partition, defendants have got these two properties to their
share. The government recognized their rights and issued a
Patta Receipt Book. The record of rights also revealed that,
defendants are in possession of it. The plaintiff has not
asserted his right over suit schedule property before
defendants and never demanded possession with
defendants. Even though, plaintiff contended that, he has
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purchased the suit schedule property, he has not made any
efforts to get its possession. He has not prayed for change
of mutation or RTCs' into his name, till 1992. Only in the
year 1992, plaintiff got changed suit schedule property into
his name in revenue records, which is challenged by
defendants in Appeal No.44/1992 before the Assistant
Commissioner who has set aside the matter and remanded
for fresh disposal to Tahasildar Hadagalli. The proceedings
before Tahasildar are closed after plaintiff instituted the
present suit. The change of Patta under No.6/92 and entry
of name of plaintiff in record of rights is null and void.
Defendants are in actual possession and enjoyment of suit
schedule property since 06.03.1961, openly, exclusively to
the knowledge of all including the plaintiff as of right and
thereby acquired right, title and interest over suit schedule
property even by law of adverse possession. Plaintiff was
not in possession of suit schedule property within twelve
years prior to filing of the suit and no steps were taken for
declaration of his alleged right, within the prescribed period.
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Thus, the suit is barred by law of limitation. Earlier plaintiff
has filed O.S.No.151/1994 against one Nanyanaik and
against these defendants for the relief of declaration of his
alleged right over suit schedule property and to deliver
vacant possession of portion of the lands from defendants.
Later plaintiff has withdrawn said suit with liberty to file
fresh suit. Plaintiff contended in said suit that defendant
Nos.1 and 2 are in illegal occupation of portion of the
property since 1993 and they were taking yields worth
₹.800/-. Plaintiff is not definite about the declaration of
alleged right either in respect of suit schedule property or a
portion of it. The suit is bad for non-joinder of necessary
parties. All along plaintiff is aware about possession of
defendants' over suit schedule property, since from the date
of sale deed dated 06.03.1961 in their own right, title and
interest. Hence, prayed for dismissal of suit with costs.
6. Based on these pleadings, the trial Court has
framed the following issues:
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1. Whether the plaintiff proves that his title
and ownership over the suit property?
2. Whether the plaintiff proves that he was
dispossessed from the suit property prior to
3 years from the date of suit?
3. Whether the plaintiff proves that the
defendants are liable to pay mesne profits
of Rs.800/- per year?
4. Whether plaintiff proves that the sale deed
obtained by 1st defendant from one Hucha
Dodda Guddappa is not binding on him as
pleaded in para No.7 and 8 of the plaint?
5. Whether the plaintiff is entitled for the
relief's sought for?
6. Whether the 2nd defendant proves that the
1st defendant is the owner of suit property
and in the partition, the suit property fell to
the share of 2nd defendant as pleaded in
para 5 of his written statement ?
7. Whether the 2nd defendant proves that
defendants have perfected their title over
the suit property by adverse possession as
pleaded in para No.7 and 8 of written
statement?
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8. What is the effect of O.S.No.151/94 as
pleaded in para 9 of written statement?
9. To what relief the parties are entitled to?
10. What order or decree?
7. After framing of issues, recording evidence and
hearing arguments, the trial Court has partly decreed the
suit declaring that plaintiff is the absolute owner of suit
schedule property directing defendants to deliver possession
of suit schedule property to plaintiff within 30 days from the
date of judgment and further held that plaintiff is entitled
for mesne profits from the date of suit, till delivery of
possession to be ascertained under Order XX Rule 12 C.P.C.
8. During pendency of the suit, plaintiff and
defendant No.2 died and their legal representatives are
brought on record.
9. Aggrieved by said judgment and decree,
defendants have filed R.A.No.26/2007. After hearing
arguments of both sides, the First Appellate Court allowed
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the appeal and reversed the judgment and decree of trial
Court and thereby, dismissed the suit of plaintiffs.
10. Aggrieved by the same, legal representatives of
plaintiff/appellant have filed the present appeal.
11. After filing the appeal, at the time of admitting
this appeal, following substantial question of law would
arose:
Whether the finding recorded by the Trial
Court that the defendants have perfected their
title to the suit property by adverse
possession is contrary to the law laid down by
the Supreme Court in T. Anjanappa Vs.
Somalingappa [(2006) 7 SCC 570]?.
12. Heard argument of both sides.
13. The substantial question of law is reformulated
as follows:
"What would be the nature of possession of
defendants who entered into possession under
invalid deed of transfer (sale deed of 1961) and if
such person continues possession for a period more
than 12 years i.e., prescribed limitation to file a suit
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for possession, whether such person would acquire
title by adverse possession?"
14. After reformulation of substantial question of law,
heard arguments of both sides.
15. The main contention of plaintiff/appellant is that
plaintiff is the owner of suit schedule property having
purchased the same under registered sale deed dated
03.01.1968 from its erstwhile owner Chigateri Imambee.
Said Chigateri Imambee has purchased the same under
registered sale deed dated 05.01.1953 from its owner
Lambani Nanya Naik. Since from the date of purchase, the
plaintiff was in possession of suit schedule property.
Defendant No.1 contended that, he purchased the same
from its erstwhile owner Sri.Huchi Dodda Guddappa under
registered sale dated 06.03.1961. However, both trial Court
and First Appellate Court held that the said Huchi Dodda
Guddappa had no right, title or interest in or over suit
schedule property to convey the same to defendant No.1.
Further, defendant No.1 or his legal representatives and
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defendant No.2 have not filed Counter-Claim or Cross-
Objection or Cross-Appeal to the second appeal. Thus, the
ownership of plaintiff is established. Once the ownership of
plaintiff is established, the possession of defendants over
suit schedule property would be that of trespasser and he
will not have any right, title and interest over suit schedule
property. Defendants have taken alternative plea of adverse
possession in the written statement. Even though they have
taken such plea, defendant No.1 and 2 never admitted the
ownership of plaintiff over suit schedule property. Without
admitting the ownership of plaintiff, defendants cannot
claim the relief of adverse possession.
16. Furthermore, D.W.2-defendant No.2 in his
examination-in-chief has deposed that plaintiff does not
know about the cultivation by defendants and even the
villagers also do not know it. Thus, allowing the appeal by
the First Appellate Court and dismissing the suit is
erroneous.
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17. Only through Exs.P.15 and P.18, for the first
time, plaintiff came to know about possession of defendants
over suit schedule property. Hence, from the date of
knowledge, suit is filed within 12 years and thus, suit is not
barred by Article 65 of the Limitation Act, 1963.
18. Further, the finding of the First Appellate Court
that suit is bad for non-joinder of necessary parties is
incorrect. Earlier suit is filed against 4 defendants and it
was withdrawn with a liberty to file fresh suit as defendant
Nos.1 and 2 are in possession, the plaintiff has filed the suit
only against defendant Nos.1 and 2 and thus, the finding of
the First Appellate Court that the suit is bad for non-joinder
of necessary parties is also erroneous. In this regard,
learned counsel for appellants relied on following citations:
1) T. Anjanappa and others Vs.
Somalingappa and another reported in
(2006) 7 SCC 570
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2) Neelam Gupta and others Vs. Rajendra
Kumar Gupta and another reported in
2024 SCC OnLine SC 2824
3) Karnataka Board of Wakf Vs.
Government of India and others
reported in (2004) 10 SCC 779
4) Hemaji Waghaji Jat Vs. Bhikhabhai
Khengarbahi Harijan and others
reported in (2009) 16 SCC 517
5) State of U.P. through Estate Officer Vs.
1st Addl. District Judge, Lucknow and
others reported in 2013 SCC OnLine All
13736
19. Learned counsel for respondents Sri. H. M.
Dharigond would submit that since 1961, defendant Nos.1
and 2 are in possession of suit schedule property based on
the sale deed executed by Sri.Huchi Dodda Guddappa in
favour of defendant No.1. RTCs. were standing in the name
of defendant No.1 from the date of the said sale.
Furthermore, the said sale by Huchi Dodda Guddappa is
entered in the Encumbrance Certificate. Thus, in the year
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1961, defendant No.1 was put in possession of the suit
schedule property by Huchi Dodda Guddappa; Whether
rightly or wrongly, defendant No. 1 was put in possession of
the said property. Defendant No.2 is none other than the
son of defendant No.1, and in the partition, the said
property was fallen to the share of defendant No.2. The
plaintiff is aware of the possession of defendants in the suit
schedule property. Moreover, registration of a document is
notice to everyone, including the plaintiff and his vendor.
20. Within 12 years from 1961, plaintiff and his
vendor have not filed any suit to claim possession of the
suit schedule property. As per Section 27 of the Limitation
Act, 1963, the right, if any, of the plaintiff is extinguished,
and he cannot file any suit for possession of the suit
schedule property after 12 years from dispossession.
However, in the instant case, plaintiff was never put in
possession of the suit schedule property because, according
to the plaintiff, he purchased it in the year 1968, whereas
defendant No.1 was in continuous possession of the
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property from 1961 onwards. Hence, vendor of the plaintiff
never put plaintiff in possession of the suit schedule
property. Therefore, the suit is apparently barred by
limitation.
21. In this regard, he relied on the judgment of a
Coordinate Bench of this Court reported in the case of M.
Abdul Rasheed vs. Shivappa1 and prayed for dismissal of
the appeal.
22. With this background, the contentions raised by
both sides are to be analysed.
23. The contention of plaintiff is that he has
purchased suit schedule property under registered sale
deed dated 03.01.1968 from its erstwhile owner Chigatery
Imamabee. Both the trial court and first appellate court
have concurrently held that plaintiff has purchased the
property from its erstwhile true owner and defendants failed
to establish their contention that the vendor of defendant
HCR 2011 Kant 624
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No.1 Huchi Dodda Gudappa was the real original owner of
the property to sell the same to defendant No.1.
24. The basic principle of law is that the seller can
sell/alienate the rights which he possesses on the property
to purchaser. He cannot sell the title better than what he
possesses.
25. Defendants contended that from the date of sale
in favour of defendant No.1, the suit schedule property was
mutated into the name of defendant No.1 and his name
continued in the RTCs. till there was partition between
defendant Nos.1 and 2. After such partition, revenue entries
continued in the name of defendant No.2, till 1992. In the
year 1992, plaintiff has raised the revenue dispute
regarding change of mutation and thus, some revenue
proceedings have taken place and for a limited period,
name of plaintiff entered in revenue records only after 1992
and not prior to that. However, they have produced RTCs.
from 1985-86 onwards and not from 1961 onwards to
substantiate their above contention.
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26. Furthermore, plaintiff has prayed for possession
of suit schedule property from defendants contending that
since 3 years prior to filing of the suit, defendants have
trespassed into suit schedule property and take its
possession. However, no document is produced to show
that at the time, what resistance plaintiff has made for
dispossessing him.
27. According to plaintiff, his vendor Chigateri
Imambee has purchased suit schedule property from
erstwhile owner Neelya Naik.
28. Defendants contended that they have purchased
suit schedule property along with another survey number
property from one Huchi Dodda Guddappa in the year 1961.
Since then, they are in possession of it. However,
defendants do not know anything about the title of the
vendor of D.W.1. How the vendor of defendant No.1 got suit
schedule property is not known to defendants. Even though,
defendants have taken this plea that they are in possession
of suit schedule property since 1961, they have not
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established the same by producing RTCs since 1961
onwards. On the other hand, they have produced RTCs
only from 1985-86 onwards.
29. Defendants have taken the plea of adverse
possession. However, contrary to said plea, D.W.2 has
deposed in his examination-in-chief that the cultivation by
defendants is not known to plaintiff or villagers.
30. D.W.2 is the son of defendant No.1. However,
he personally does not know anything about the sale. His
evidence is that defendants are the absolute owners of suit
schedule property. When it is the contention and evidence
of defendants that they are absolute owners of suit
schedule property based on the sale deed of 1961 and failed
to establish the ownership of their vendor; definitely, they
cannot be declared as owners of suit schedule property . At
the same time, they have failed to establish the adverse
possession.
31. The plaintiff has filed the suit earlier to present
suit against defendant Nos.1 and 2 and others and has
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withdrawn it with a liberty to file fresh suit and then, he has
filed the present suit against defendant Nos.1 and 2
contending that it is defendant Nos.1 and 2 are in
possession of it and not the other defendants of the earlier
suit.
32. Defendants have taken the plea of adverse
possession and they have taken it only as an alternative
plea. Their plea is that, they have purchased the property
from Huchi Dodda Guddappa and thus, they are the owners
of the property. Thus, defendants have not at all admitted
that plaintiff or his vendor Chigateri Imambee was owner of
suit schedule property at any point of time. The defendants
at one stretch claim that they are the owners of the
property and at another stretch claim that they have
perfected their title by law of adverse possession.
33. With this background, the citations relied by both
sides are to be looked into. The citations relied by learned
counsel for appellants are as follows:
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34. The judgment of the Hon'ble Apex Court in T.
Anjanappa and others Vs. Somalingappa and
another2, in paragraph Nos.12, 14, 19 and 20, reads as
follows:
"12. 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 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
(2006) 7 SCC 570
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owner's right excluded him from the enjoyment
of his property.
14. Adverse possession is that form of
possession or occupancy of land which is
inconsistent with the title of the rightful owner
and tends to extinguish that person's title.
Possession is not held to be adverse if it can be
referred to a lawful title. The person setting up
adverse possession may have been holding
under the rightful owner's title e.g. trustees,
guardians, bailiffs or agents. Such persons
cannot set up adverse possession:
19. In Halsbury's Laws of England, 1953
Edn., Vol. I it has been stated as follows:
"At the determination of the statutory
period limited to any person for making an
entry or bringing an action, the right or title of
such person to the land, rent or advowson, for
the recovery of which such entry or action
might have been made or brought within such
period is extinguished and such title cannot
afterwards be reviewed either by re-entry or by
subsequent acknowledgment. The operation of
the statute is merely negative, it extinguishes
the right and title of the dispossessed owner
and leaves the occupant with a title gained by
the fact of possession and resting on the
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infirmity of the right of the others to eject
him."
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 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."
35. The judgment of the Hon'ble Apex Court in
Neelam Gupta and others Vs. Rajendra Kumar Gupta
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and another3, in paragraph Nos.43 and 45, reads as
follows:
"43. In the case on hand, the evidence on
the part of the defendants/appellants herein
would reveal that instead of establishing
'animus possidendi' under hostile colour of title
they have tendered evidence indicating only
permissive possession and at the same time
failed to establish the time from which it was
converted to adverse to the title of the plaintiff
which is open and continuous for the
prescriptive period.
44. In M. Siddiq's case (supra) paragraphs
1142 and 1143 assume relevance and they, in
so far as relevant to this case, run as under: -
"1142. A plea of adverse possession is
founded on the acceptance that ownership
of the property vests in another against
whom the claimant asserts a possession
adverse to the title of the other. Possession
is adverse in the sense that it is contrary to
the acknowledged title in the other person
against whom it is claimed. Evidently,
therefore, the plaintiffs in Suit 4 ought to
2024 SCC OnLine SC 2824
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be cognizant of the fact that any claim of
adverse possession against the Hindus or
the temple would amount to an acceptance
of a title in the latter. Dr Dhavan has
submitted that this plea is a subsidiary or
alternate plea upon which it is not
necessary for the plaintiffs to stand in the
event that their main plea on title is held to
be established on evidence. It becomes
then necessary to assess as to whether the
claim of adverse possession has been
established.
1143. A person who sets up a plea of
adverse possession must establish both
possession which is peaceful, open and
continuous possession which meets the
requirement of being nec vi nec claim and
nec precario. To substantiate a plea of
adverse possession, the character of the
possession must be adequate in continuity
and in the public because the possession
has to be to the knowledge of the true
owner in order for it to be adverse. These
requirements have to be duly established
first by adequate pleadings and second by
leading sufficient evidence. Evidence, it is
well settled, can only be adduced with
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reference to matters which are pleaded in a
civil suit and in the absence of an adequate
pleading, evidence by itself cannot supply
the deficiency of a pleaded case."
45. Upon considering the evidence on the
part of the appellants herein (the defendants),
we have no hesitation to hold that the
requirements to co-exist to constitute adverse
possession are not established by them. So
also, it can only be held that the reckoning of
the period of limitation from the date of
commencement of the right of ownership of the
plaintiff over the suit land instead of looking
into whether they had succeeded in pleading
and establishing the date of commencement of
adverse possession and satisfaction regarding
the prescriptive period in that regard, was
rightly interfered with, by the High Court."
36. The judgment of the Hon'ble Apex Court in
Karnataka Board of Wakf Vs. Government of India
and others4 in paragraph No.11, reads as follows:
(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 reported in
(1997) 7 SCC 567)] Physical fact of exclusive
possession and the animus possidendi to hold as
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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 all
facts necessary to establish his adverse possession.
[Mahesh Chand Sharma (Dr.) v. Raj Kumari
Sharma reported in (1996) 8 SCC 128] "
37. The judgment of the Hon'ble Apex Court in
Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbahi
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Harijan and others5 in paragraph Nos.29 and 30, reads as
follows:
"29. We deem it proper to reproduce the
relevant portion of the judgment in Revamma
case: (SCC p. 79, paras 51-52)
"51. Thereafter the applicants moved the
European Commission of Human Rights (ECHR)
alleging that the United Kingdom law on
adverse possession, by which they lost land to
a neighbour, operated in violation of Article 1
of Protocol 1 to the Convention for the
Protection of Human Rights and Fundamental
Freedoms ('the Convention').
52. It was contended by the applicants
that they had been deprived of their land by
the operation of the domestic law on adverse
possession which is in contravention with
Article 1 of Protocol 1 to the Convention for the
Protection of Human Rights and Fundamental
Freedoms ('the Convention'), which reads as
under:
'Every natural or legal person is entitled
to the peaceful enjoyment of his possessions.
No one shall be deprived of his possessions
(2009) 16 SCC 517
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except in the public interest and subject to the
conditions provided for by law and by the
general principles of international law.
The preceding provisions shall not,
however, in any way impair the right of a State
to enforce such laws as it deems necessary to
control the use of property in accordance with
the general interest or to secure the payment
of taxes or other contributions or penalties.' "
30. Reverting to the facts of this case,
admittedly, the appellants at no stage had set
up the case of adverse possession, there was
no pleading to that effect, no issues were
framed, but even then the trial court decreed
the suit on the ground of adverse possession.
The trial court judgment being erroneous and
unsustainable was set aside by the first
appellate court. Both the first appellate court
and the High Court have categorically held that
the appellant has miserably failed to establish
title to the suit land, therefore, he is not
entitled to the ownership. We endorse the
findings of the first appellate court upheld by
the High Court."
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38. The judgment of the Hon'ble Apex Court in State
of U.P. through Estate Officer Vs. 1st Addl. District
Judge, Lucknow and others6 in paragraph Nos.163 and
164, reads as follows:
"163. In Maharaja Sir. Kesho Prasad
Singh Bahadur (AIR 1937 PC 69) (supra), it
was held that in order to obtain a favourable
finding of adverse possession, one must have
to satisfy all the qualities of adequacy,
continuity and exclusiveness. Reliance was
placed on Kuthali Moothavur v. P.
Kunharankutty, (AIR 1922 PC 181).
164. Looking the matter in hand in the
light of discussion, binding precedents and
exposition of law, as referred to and discussed
above, in my view, by no stretch of
imagination, it can be said that either there
existed appropriate pleadings to attract plea of
adverse possession or that requisite facts to
attract period of limitation so as to confer title
upon respondents 3 and 4 or their ancestors
are there on record. The very necessity of
proving possession nec vi nec clam nec
2013 SCC OnLine All 13736
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precario is absent. Respondents 3 and 4
nowhere have pleaded that possession was
hostile to the owner of the property in question
and they had intention to hold the land in
question with an intention to possess him
against interest of true owner. The plea of
adverse possession is not a pure question of
law but a blended one of fact and law as held
in Karnataka Board of Wakf (supra). The
person claiming adverse possession should
show:--
(a) On what date he came into
possession,
(b) What was the nature of his
possession,
(c) Whether factum of possession
was known to other party.
(d) How long has his possession
has continued.
(e) His possession was open,
undisturbed and hostile to
the owner.
165. A person pleading adverse
possession has no equities in his favour. Since
he is trying to defeat the rights of true owner,
therefore, it was for him to clearly plead and
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establish all facts necessary to establish his
adverse possession. It is of utmost importance
that one has to plead and prove that his
possession was adverse to the true owner."
39. The learned counsel for respondents relies on the
judgment of Hon'ble Apex Court in Alla Baksh Vs. Mohd.
Hussain7 in paragraph Nos.9 and 10, reads as follows:
9. Section 27 of the Limitation Act
provides that on the determination of the
period hereby limited to any person for
instituting a suit for possession of any
property, his right to such property shall be
extinguished. A perusal of the Section per se
reveals that this Section applies and controls
the operation of the right to the property in
cases, where the period of limitation over suit
for possession of the property expires and suit
is not filed. It provides that right to property of
person shall be extinguished when it provides,
as to when the right of the person to his
property shall extinguish and in what cases it
shall extinguish. The earlier part of the Section
reveals that if there is a cause of action for a
I.L.R. 1996 KAR 1340
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person to file a suit for possession and the suit
for possession is not filed by him either on the
basis of title or on the basis of possession and
later dispossession, if the period of limitation
prescribed hereof expires without suit being
filed, then the right, title and interest of that
therein shall extinguish. This Section provides
an exception to the general principle of law
that limitation bars the remedy only, but, does
not extinguish the right, but, so far as Section
27 is concerned, it expressly provides that
when there exists a cause of action in favour of
a person to file a suit for possession, then, if
the suit is not filed within a period of limitation
prescribed, and the period of limitation stands
determined, then not only period of limitation
come to an end, but, his right will also comes
to an end and it is to stand extinguished. The
cases, where, the possession of the defendant
becomes adverse to the plaintiff, it means that
title of the owner of the property would
extinguish on the expiry of the period of 12
years, in cases covered by Article 65, if the suit
for possession had not been filed by the
plaintiff, that is, the owner of the property for
possession within that period. The question is,
when can the possession be said to be
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adverse? This has been dealt with in many
cases.
10. Simply possession for 12 years may
not become adverse. The possession must for
12 years be continuous possession and it must
be hostile in its nature."
40. The learned counsel for respondents relies on the
judgment of Hon'ble Apex Court in Jose Vs.
Ramakrishnan Nair Radhakrishnan and others8 in
paragraph No.11, reads as follows:
"11. We may in this connection point out
that Ext. B3 was executed in the year 1959.
Suit was instituted only in the year 1982, after
more than 23 years praying for recovery of
possession. Claim was resisted stating that the
suit itself was barred by law of limitation.
Counsel for the plaintiff submitted that the suit
is not barred by law of limitation since first
defendant obtained possession of the property
2003 SCC OnLine Ker 301
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only in 1974. Reference was also made to the
decision in Kumara Pillai v. Velappan
Pillai (1968 Ker LT 695). Period of limitation to
file the suit starts from the date of Ext. B3. We
have already held that Chempakakutty Amma
was in possession of the property and therefore
Ext. B3 was validly executed. This is a case
where first defendant and the assignee are in
possession of the properties for more than two
decades and have effected valuable
improvements in the property. Since the
property was already parted with under Ext. B3
the period of limitation has to be reckoned from
the date of Ext. B3, that is 19-9-1959 and
hence the suit is barred by law of limitation.
Further since Ext. B3 was executed by the
female daughter she is incompetent to execute
Ext. A1 settlement deed dated 19-11-1959 and
therefore to be ignored. Consequently we are
of the view plaintiffs are not entitled to any of
the reliefs prayed for in the suit. We therefore
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allow the appeal, set aside the judgment of the
Court below. Parties would bear their
respective costs."
41. The facts and circumstances of the present case
and said case differ.
42. The learned counsel for respondents relies on the
judgment of Co-Ordinate Bench of this Court in M. Abdul
Rasheed Vs. V.L. Shivappa9 in paragraph No.17, reads as
follows:
"17. Now, coming to the question with
regard to the limitation, it is the contention of
the learned counsel for the plaintiffs that Article
65 of the Limitation Act applies to and that suit
has been filed within the limitation period. As
could be seen from Article 65 of the Limitation
Act, the suit for possession of immovable
property can be filed within 12 years from the
date when the possession of the defendant
becomes adverse to the plaintiffs. Though the
Lower Appellate Court held that the suit
instituted is well within the time, the view
HCR 2011 Kant.624
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expressed is incorrect as the plaintiffs never
instituted the suit for possession of the
property even when it was standing in the
name of defendants 2 and 3. It is relevant to
note that as per the claim made by the
plaintiffs, Abdul Sattar was the owner of the
suit property prior to 1932 and that he had
given this property to Jahira Bi, his second wife
under the mahar sale deed Ex.P.3 and if Jahira
Bi is to be the absolute owner of the suit
property and if it was not in her possession all
along since from the date of Ex.P.3. the
possession of defendants 2 and 3, would be
adverse to the interest of Jahira Bi in the suit
land. Therefore, even if Article 65 is applicable
to the facts, the suit instituted is not in time.
Even otherwise, if the provisions of Section 27
of the Limitation Act is perused, Jahira Bi gets
a right to possession of the property from the
date of Ex.P.3. Neither Jahira Bi nor the
plaintiffs ever instituted any suit for possession
right from 1932 onwards till the property was
sold by defendants 2 and 3 in favour of the 3rd
defendant. This inaction on the part of the
plaintiffs to take the possession extinguishes
their right in the property and thereby even
under Section 27 of the Limitation Act, the
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plaintiffs have no remedy to get the possession
and the suit deserves to be dismissed on this
count as well."
43. On careful perusal of all the above citations, to
establish the title based on law of adverse possession, one
has to prove the following two ingredients:
i) Possession for a statutory period of 12 years
openly, continuously, without any obstruction
to the knowledge of every one including
plaintiff;
ii) Animus possidendi, the hostile intention of the
possessor possessing the property against true
owner.
44. Thus, if defendants have taken the plea of
adverse possession, first they have to admit that plaintiff is
the owner of the suit schedule property, but in the instant
case, they are disputing the ownership of plaintiff over suit
schedule property. Defendants have to plead and prove that
from which date, their possession become adverse to the
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interest of real owner. However, in the instant case, there
is no such plea and proof.
45. In the instant case as discussed above,
defendants contended that they came to be in possession of
suit schedule property based on the sale deed by one Huchi
Dodda Guddappa who was not having title over the suit
schedule property as held by trial Court as well as First
Appellate Court. Hence, their possession never became
hostile to the interest of plaintiff. Furthermore, D.W.2 in his
examination- in-chief itself has categorically deposed that
the possession of defendants over suit schedule property is
not known to plaintiff and to villagers. Under these
circumstances, they have not established the possession
over suit schedule property openly for a period of 12 years
and their possession became hostile to the interest of real
owner. Even defendants have produced the RTCs. from
1985-86 onwards and not from 1961 onwards. Hence,
defendants also failed to establish their continuous
possession of suit schedule property for a period of 12 years
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and they have also failed to establish the animus
possidendi.
46. On reading of Article 65 of the Limitation Act,
1963, the period of limitation to file a suit for possession
begins to run from the date of hostile intention of
defendants against the true owner. This hostile intention
can be gathered from the circumstances of the case.
47. In the instant case, as discussed above, the
defendants have never admitted the ownership of plaintiff
or his vendor over suit schedule property at any point of
time; on the other hand, they claim ownership over the
property based on title and not on adverse possession.
Defendants failed to establish their title over suit schedule
property . As discussed above, the defendants failed to aver
and prove the plea of adverse possession in a proper
manner. Hence, at no point of time, the possession of
defendants became adverse to the interest of real owner-
i.e., plaintiff. Hence, the period of limitation does not run
against plaintiff. Hence, the suit is not barred by law of
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limitation. Thus, the finding of First Appellate Court that
defendants have established their continuous possession for
a period of 12 years and established hostile intention
towards plaintiff is erroneous and they have perfected their
title by law of adverse possession is incorrect and improper
and it requires interference. Accordingly, the substantial
question of law is answered in favour of appellants and this
Court proceeds to pass the following:
ORDER
i) The appeal filed under Section 100 of
C.P.C. is allowed by setting aside the
judgment and decree dated 30.07.2008 in
R.A.No.26/2007 on the file of Principal
Civil Judge (Sr.Dn.) & J.M.F.C., Hospet;
by confirming the judgment and decree
dated 20.12.2006 in O.S.No.74/1997 on
the file of Civil Judge (Jr.Dn.) & J.M.F.C.,
Hadagalli.
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ii) The suit of plaintiff is decreed. Plaintiffs
are entitled for possession of suit schedule
property from defendants and also
entitled for mesne profits from
defendants, which is to be ascertained
under Order XX rule 12 of C.P.C.
iii) Draw decree accordingly.
Sd/-
(GEETHA K.B.)
JUDGE
SSP
CT-MCK
List No.: 1 Sl No.: 1
