Kasturibai vs Ashok And Ors

-1- NC: 2024:KHC-K:4361 RSA No. 200193 of 2024

IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH

DATED THIS THE 27TH DAY OF JUNE, 2024

BEFORE

THE HON'BLE Mrs JUSTICE K S HEMALEKHA

REGULAR SECOND APPEAL NO.200193 OF 2024 (DEC/POSS)

BETWEEN:

KASTURIBAI W/O VITHALRAO SURYAVANSHI, AGE: 68 YEARS, OCC: HOUSEHOLD WORK, R/O. BADAMI, TQ. BADAMI, DIST: BAGALKOT-587201.

...APPELLANT (BY SRI BAPUGOUDA SIDDAPPA, ADVOCATE)

AND:

1. ASHOK S/O RAMU JADHAV, AGE: 61 YEARS, OCC: AGRICULTURE, Digitally signed R/O. KAVALAGI VILLAGE, by SWETA KULKARNI TQ. AND DIST: VIJAYAPURA-586104. Location: HIGH COURT OF KARNATAKA 2. PANDURANGA S/O RAMU JADHAV, AGE: 55 YEARS, OCC: AGRICULTURE, R/O. KAVALAGI VILLAGE, TQ. AND DIST: VIJAYAPURA-586104.

3. SAROJANI W/O BAPUJI NIKKAM, AGE: 63 YEARS, OCC: HOUSEHOLD WORK, R/O. ADAKI GALLI, JORAPUR PETH, VIJAYAPURA-586101.

4. ASHOK S/O GANAPATI JADHAV, AGE: 58 YEARS, OCC: AGRICULTURE, -2- NC: 2024:KHC-K:4361 RSA No. 200193 of 2024

R/O. KAVALAGI VILLAGE, TQ. AND DIST. VIJAYAPURA-586104.

5. RAJENDRA S/O GANAPATI JADHAV, AGE: 58 YEARS, OCC: PRIVATE SERVICE, R/O. KAVALAGI VILLAGE, TQ. AND DIST. VIJAYAPURA-586104.

6. PRABHAKAR S/O GANAPATI JADHAV, AGE: 51 YEARS, OCC: BUSINESS, R/O. KAVALAGI VILLAGE, TQ. AND DIST. VIJAYAPURA-586104.

...RESPONDENTS

(BY SRI S.S. MAMADAPUR, ADV. FOR C/R1 AND R2)

THIS RSA IS FILED U/S 100 OF CPC, PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED: 18.12.2023 PASSED IN RA NO.37/2020 ON THE FILE OF THE Court OF III ADDITIONAL SENIOR CIVIL JUDGE VIJAYAPUR AT VIJAYAPUR; TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 19.12.2019 PASSED IN O.S.NO.234/2009 ON THE FILE OF THE COURT OF THE PRINCIPAL CIVIL JUDGE VIJAYAPURA AT VIJAYAPURA; TO SET ASIDE THE IMPUGNED JUDGMENTS AND DECREES OF THE TRIAL COURT AS WELL AS LOWER APPELLATE COURT AND ALLOW THIS REGULAR SECOND APPEAL FILED BY THE APPELLATE; ORDER FOR COSTS OF THIS APPEAL, ETC.

THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING: -3- NC: 2024:KHC-K:4361 RSA No. 200193 of 2024

JUDGMENT

Assailing the concurrent findings of facts of the

Courts below, defendant No.1 is before this Court in the

Regular Second Appeal.

2. Parties herein are referred to as per their

ranking before the Trial Court for the sake of convenience.

3. Suit seeking for declaration and for

consequential relief of possession directing the defendants

to hand over the actual possession of the suit property.

The suit property is land measuring 2 acres 10 guntas of

Sy.No.145/2 totally measuring 11 acres 17 guntas

situated at Kavalagi village, taluk and district Vijayapur.

The case of the plaintiff is that one Ramu Jadhav was the

propositus of the family who owned land bearing

Sy.No.145. Ramu Jadhav had two sons by name

Siddu alias Siddoba and Babaji, who inherited the property

of Ramu Jadhav after his death. In the year 1939, the

land Sy.No.145 was partitioned between Siddu and Babaji

and accordingly an extent of 11 acres 17 guntas land -4- NC: 2024:KHC-K:4361 RSA No. 200193 of 2024

towards northern side fell to the share of Siddoba i.e.

Sy.No.145/1 and 11 acres 17 guntas towards southern

side fell to the share of Babaji i.e. Sy.No.145/2. M.E.346

was effected and the entry of the said extent of lands

continued till the year 2006. It is stated that out of the

said extent, 1 acre 10 guntas of land each were not

mentioned as pot kharab but only cultivable land of 10

acres 9 gutnas was mentioned. It is the case of the

plaintiff that after partition Siddoba died issueless and in

the year 1946 Bhima Bai W/o Siddoba adopted one

Ganuba alias Ganapati who is the father of the present

defendants and as such, the land measuring 11 acres 17

guntas of Sy.No.145/1 which was acquired in partition by

Siddoba was inherited by adopted son Ganuba alias

Ganapati.

4. It is stated that the land Sy.No.145/2 thereby

was divided and Sy.No.145/2/1 measuring 5 acres 29

guntas to plaintiff No.2 and Sy.No.145/2/2 measuring 5

acres 28 guntas was allotted to plaintiff No.1 under M.R. -5- NC: 2024:KHC-K:4361 RSA No. 200193 of 2024

No.2433 dated 31.03.1990. It is averred that

Sy.No.145/1 measuring 11 acres 17 guntas was enhanced

to 13 acres 7 guntas and land Sy.No.145/2 measuring 11

acres 17 guntas was reduced to 9 acres 27 guntas by way

of MR No.23/2005-06 by defendants in the year 2006

behind the back of the plaintiffs. It is the case of the

plaintiffs that the M.R.No.23/2005-06 is illegal and without

any source of title to the lands in the partition effected in

the year 1939 wherein equal division of land was made

and the defendants cannot claim extra land of 2 acres 10

guntas in addition to their 11 acres 17 guntas on the basis

of an illegal mutation entry. It is the case of the plaintiffs

that the defendants have illegally encroached the suit land

and have got an extent of their land increased from 11

acres 17 guntas to 13 acres 7 guntas in land bearing

Sy.No.145/2. The plaintiffs coming to know about the

illegal entry and the possession of the defendants, filed

the present suit for declaration and possession. -6-

NC: 2024:KHC-K:4361 RSA No. 200193 of 2024

5. On notice, the defendant Nos.2 to 5 together

filed written statement and defendant No.1 filed separate

written statement. The contention taken by the

defendants are similar stating that at the time of partition

itself 13 acres 7 guntas of land was fallen to the share of

Siddoba, the father of Ganapati and 9 acres 27 guntas of

land was fallen to the share Babaji in Sy.No.145 and that

there is no encroachment of area measuring 2 acres 10

guntas of land by these defendants. It is contended that

the suit of the plaintiffs is barred by limitation and the

plaintiffs are estopped from raising any objection as to the

possession and enjoyment of these defendants to an

extent of 13 acres 7 guntas and prayed for dismissal of

the suit.

6. The Trial Court, on the basis of the pleadings,

framed the following issues:

"ISSUES

1. Whether the plaintiffs prove that they are the owners of suit land measuring 2 acres 10 guntas shown by -7- NC: 2024:KHC-K:4361 RSA No. 200193 of 2024

letters ABE in the plaint-sketch as part and parcel of Sy.No.145/2 of Kavalagi ?

2. Whether the plaintiffs prove that defendants have taken over the possession of suit land by the plaintiff?

3. Whether this Court has got jurisdiction to entertain and try the suit?

4. Whether the plaintiffs are entitled to the relief sought for?

5. What order or decree?

ADDL. ISSUES

1. Whether the defendant No.1 proves that he has perfected his title over the suit property shown by letters ABE in plaint-sketch by adverse possession?

2. Whether defendant No.1 further proves that the suit is barred by law of limitation?"

7. In order to substantiate their claim, plaintiff

No.1 examined himself as PW-1, marked documents at

Exs.P-1 to P-11. On the other hand, defendant Nos.5 and

1 got themselves examined as DW-1 and DW-2, marked

documents at Exs.D1 to D4. Court Commissioners were

examined as CW-1 and CW-2, marked documents at

Exs.C1 to C9.

-8-

NC: 2024:KHC-K:4361 RSA No. 200193 of 2024

8. The Trial Court, on the basis of the pleadings,

oral and documentary evidence, arrived at a conclusion

that:

(i) the plaintiffs have proved that they are the

owners of the suit land measuring 2 acres

10 guntas of Sy.No.145/2 as per the letters

"ABE" in the plaint sketch map;

(ii) defendant No.1 has failed to prove that he

has perfected his title over the suit property

by way of adverse possession;

(iii) defendant No.1 has failed to prove that the

suit is barred by law of limitation, and

by the judgment and decree, the Trial Court decreed the

suit declaring that the plaintiffs are owners of the suit land

measuring 2 acres 10 guntas of Sy.No.145/2 totally

measuring 11 acres 17 guntas including the pot kharab

and the defendants were directed to hand over the

possession of the suit land in favour of the plaintiffs

without any encumbrances.

-9- NC: 2024:KHC-K:4361 RSA No. 200193 of 2024

9. Aggrieved, defendant No.1 preferred appeal

before the first appellate Court. The first appellate Court,

while re-appreciating and re-analysing the entire oral and

documentary evidence independently, concurred with the

judgment and decree of the Trial Court and dismissed the

appeal of defendant No.1. Aggrieved, defendant No.1 is

before this Court in the second appeal.

10. Heard Sri Bapugouda Siddappa, learned counsel

appearing for the appellant and Sri S.S. Mamadapur,

learned counsel appearing for caveators/respondent Nos.1

and 2.

11. According to the learned counsel for the

appellant, M.E.No.346 mutated on 01.06.1939 entered the

name of the plaintiffs and their forefathers in actual

possession to the extent of 9 acres 27 guntas and the

forefathers of defendants were found in possession of 11

acres 17 guntas to this date. It is further stated that the

pot kaharab portion of 1 acre 8 guntas has not been

shown in M.E.No.346 and in the year 2006 under

- 10 -

NC: 2024:KHC-K:4361 RSA No. 200193 of 2024

M.E.No.23/2005-06 the revenue records have been

rectified. Learned counsel would contend that the

plaintiffs were never in possession and enjoyment of the

land bearing Sy.No.145/2 to the extent of 11 acres 17

guntas but were in possession only to the extent of 9

acres 27 guntas and the courts below, without considering

that the defendants have proved their possession over the

suit property to the extent of 2 acres 10 guntas by way of

adverse possession since the date of death of Babaji

adversely to the knowledge of the plaintiffs, has fell in

error in declaring that the plaintiffs are owners of the land

measuring 2 acres 10 guntas. The learned counsel

submits that there arises substantial question of law as

mentioned in the appeal memo for consideration.

12. Per contra, learned counsel appearing for the

respondents submits that there was a partition effected

between the branch of Siddoba and Babaji the father of

the defendants and the father of the plaintiffs way back in

the year 1939 and the branch of defendants were allotted

- 11 -

NC: 2024:KHC-K:4361 RSA No. 200193 of 2024

11 acres 17 guntas i.e., Sy.No.145/1 and the plaintiffs'

branch was allotted Sy.No.145/2 measuring 11 acres 17

guntas. The change of entries in the revenue records in

the year 2005-06 was without the knowledge of the

plaintiffs. The courts below have rightly held that the

defendants have failed to establish their title over the

property by way of adverse possession and the concurrent

findings of the courts below do not warrant any

interference under Section 100 of CPC and sought for

dismissal of the appeal.

13. At the cost of repetition, certain facts relevant

herein are to be stated. Undisputed facts are that

Sy.No.145 belonged to the family of the plaintiffs and

defendants. In the year 1939 there was a partition

between the branch of the plaintiffs and defendants

namely Siddoba and Babaji, the sons of Ramu Jadhav,

wherein Sy.No.145 was divided as Sy.No.145/1 and

Sy.No.145/2. The claim of the plaintiffs is that

Sy.No.145/1 was allotted to Siddoba measuring 11 acres

- 12 -

NC: 2024:KHC-K:4361 RSA No. 200193 of 2024

17 guntas and Sy.No.145/2 was allotted to the share of

Babaji branch of the plaintiffs to an extent of 11 acres 17

gutnas and the plaintiffs are the owners of the land to the

extent of 11 acres 17 guntas on the basis of the partition.

14. In order to substantiate their claim, plaintiff

No.1 examined himself as PW-1 and copy of M.E.No.346 at

Ex.P-6 was marked to indicate that there was a partition

between Siddoba and Babaji and in the partition

Sy.No.145/1 measuring 10 acres 9 guntas was allotted to

the share of Siddoba and Sy.No.145/2 measuring 10 acres

9 guntas was allotted to the share of Babaji. The total

extent of Sy.No.145 is measuring 22 acres 34 guntas and

the measurement of lands mentioned in M.E.No.346 to

Siddoba and Babuji is 10 acres 9 guntas without the pot

kharab. The tippan sketch at Ex.P-8 shows the location of

Sy.Nos.145/1 and 145/2. The name of father of

defendants by name Ganapati was mutated in

Sy.No.145/1 and to the extent of 10 acres 9 guntas it was

cultivable land and 1 acre 8 guntas as pot kharab totally

- 13 -

NC: 2024:KHC-K:4361 RSA No. 200193 of 2024

measuring 11 acres 17 guntas. The record of rights

pertaining to Sy.No.145/1 is evidenced at Exs.P-10 and P-

3. In respect of Sy.No.145/2 allotted to the branch of

plaintiffs i.e., Babaji, there are subsequent entries wherein

the plaintiff Nos.1 and 2 have partitioned the properties

allotted to their share. On the other hand, the defendants

set up a plea of adverse possession contending that they

are in possession of the land to the extent of 13 acres 7

guntas and the plaintiffs' branch i.e., Babaji had come in

possession of land only to the extent of 9 acres 27 guntas.

The mutation entry M.E.No.346 clearly evidence 10 acres

9 guntas each including pot kharab land of 1 acre 8

guntas. When the defendants have set up a plea of

adverse possession, it is necessary to substantiate the

conditions enumerated to prove the adverse possession.

The ingredients of adverse possession is the nec vi nec

clam and nec precario. The defendants have to prove their

possession over the land in hostility and animus possidendi

to the plaintiffs/true owner. The defendants have not

satisfied the conditions of principles of adverse possession.

- 14 -

NC: 2024:KHC-K:4361 RSA No. 200193 of 2024

The plea of title and plea of adverse possession are

contradictory to each other. The defendants on one hand

contend that in the partition they were allotted 13 acres 7

guntas and on the other hand set up a plea of adverse

possession which is inconsistent and adverse to the plea of

adverse possession. The Apex Court in the case of Govt.

of Kerala & Anr. vs. Joseph & Ors1 has held at para

Nos.30 to 55, as under:

"30. Before proceeding to do so, it is essential to take note of the law governing such a claim. After a perusal and consideration of various judgments rendered by this Court, the following principles can be observed:

31. Possession must be open, clear, continuous and hostile to the claim or possession of the other party; all three classic requirements must coexist-

nec vi, i.e., adequate in continuity; nec clam, i.e., adequate in publicity; and nec precario, i.e., adverse to a competitor, in denial of title and knowledge;

(a) In Radhamoni Debi v. Collector of Khulna8, the Privy Council held that-

"The possession required must be adequate in continuity, in publicity, and in extent to show that it is possession adverse to the competitor."

1 2023 SCC Online SC 961

- 15 -

NC: 2024:KHC-K:4361 RSA No. 200193 of 2024

(b) Further, the Council Maharaja Sri Chandra Nandi v. Baijnath Jugal Kishore observed-

"It is sufficient that the possession should be overt and without any attempt at concealment, so that the person against whom time is running ought, if he exercises due vigilance, to be aware of what is happening."

(c) A Bench of three judges of this Court in Parsinni v. Sukhi held that

"Party claiming adverse possession must prove that his possession must be 'nec vi, nec clam, nec precario' i.e. 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."

(d) In Karnataka Board of Wakf v. Govt. of India (two-Judge Bench) it was held:--

"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."

This case was relied on in the case of M. Venkatesh v. Bangalore Development Authority (three-Judge Bench), Ravinder Kaur Grewal v. Manjit Kaur (three-Judge Bench).

- 16 -

NC: 2024:KHC-K:4361 RSA No. 200193 of 2024

(e) This Court in a recent case of M Siddiq (D) through LRs v. Mahant Suresh Das (five-Judge Bench) reiterated this principle as under -

"748. 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."

32. The person claiming adverse possession must show clear and cogent evidence substantiate such claim;

33. This Court in Thakur Kishan Singh v. Arvind Kumar (two-Judge Bench) held that -

"5. A possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession..."

34. Reference may also be made to M. Siddiq (supra).

35. Mere possession over a property for a long period of time does not grant the right of adverse possession on its own;

- 17 -

NC: 2024:KHC-K:4361 RSA No. 200193 of 2024

(a) In Gaya Prasad Dikshit v. Dr. Nirmal Chander (two-Judge Bench),this court observed-

"1... It is not merely unauthorised possession on termination of his licence that enables the licensee to claim title by adverse possession but there must be some overt act on the part of the licensee to show that he is claiming adverse title. It is possible that the licensor may not file an action for the purpose of recovering possession of the premises from the licensee after terminating his licence but that by itself cannot enable the licensee to claim title by adverse possession. There must be some overt act on the part of the licensee indicating assertion of hostile title. Mere continuance of unauthorised possession even for a period of more than 12 years is not enough."

36. Reference may also be made to Arvind Kumar (supra); Mallikarjunaiah v. Nanjaiah (two-Judge Bench); Uttam Chand (supra).

37. Such clear and continuous possession must be accompanied by animus possidendi - the intention to possess or in other words, the intention to dispossess the rightful owner; in Karnataka Board of Wakf (supra) it was observed-

"...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..."

(a) The case of Annakili v. A. Vedanayagam (two- Judge Bench) also shed light on this principle as under -

"24. Claim by adverse possession has two elements : (1) the possession of the defendant should become adverse to the

- 18 -

NC: 2024:KHC-K:4361 RSA No. 200193 of 2024

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..."

(b) In Des Raj v. Bhagat Ram (two-Judge Bench) this Court observed -

"21. In a case of this nature, where long and continuous possession of the plaintiff- respondent stands admitted, the only question which arose for consideration by the courts below was as to whether the plaintiff had been in possession of the properties in hostile declaration of his title vis-à-vis his co- owners and they were in know thereof."

(c) This court in L.N. Aswathama v. P. Prakash (two-Judge Bench) had observed that permissive possession or possession in the absence of Animus possidendi would not constitute the claim of adverse possession.

(d) It was also held in the case of Chatti Konati Rao v. Palle Venkata Subba Rao (two-Judge Bench) -

"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

- 19 -

NC: 2024:KHC-K:4361 RSA No. 200193 of 2024

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..."

(Emphasis supplied)

38. Referring to the above judgment Subha Rao (supra) this Court has reiterated the cardinality of the presence of Animus possidendi in a case concerning adverse possession in Brijesh Kumar v. Shardabai (dead) by LRs. (two-Judge Bench).

39. Such a plea is available not only as a defence when title is questioned, but is also available as a claim to a person who has perfected his title;

40. The prior position of law as set out in Gurudwara Sahab v. Gram Panchayat Village Sirthala (two-Judge Bench) was that the plea of adverse possession can be used only as a shield by the defendant and not as a sword by the plaintiff. However, the position was changed later by the decision of this Hon'ble Court in the case of Ravinder Kaur (supra) had held that -

"...Title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession..."

41. The position in Ravinder Kaur (supra) was followed in Narasamma v. A. Krishnappa (Dead) Through LRs. (three-Judge Bench).

42. Mere passing of an ejectment order does not cause brake in possession neither causes his dispossession;

- 20 -

NC: 2024:KHC-K:4361 RSA No. 200193 of 2024

43. In Balkrishna v. Satyaprakash (two-Judge Bench) this Court held:

"...Mere passing of an order of ejectment against a person claiming to be in adverse possession neither causes his dispossession nor discontinuation of his possession which alone breaks the continuity of possession."

44. When the land subject of proceedings wherein adverse possession has been claimed, belongs to the Government, the Court is duty-bound to act with greater seriousness, effectiveness, care and circumspection as it may lead to Destruction of a right/title of the State to immovable property. In State of Rajasthan v. Harphool Singh (two-Judge Bench) it was held:

"12. So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immovable property and conferring upon a third-party encroacher title where he had none."

45. Further, in Mandal Revenue Officer v. Goundla Venkaiah (two-Judge Bench) it was stated:

"...It is our considered view that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the court is duty- bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State to immovable property and give an upper hand to the encroachers, unauthorised occupants or land grabbers."

- 21 -

NC: 2024:KHC-K:4361 RSA No. 200193 of 2024

46. A plea of adverse possession must be pleaded with proper particulars, such as, when the possession became adverse. The court is not to travel beyond pleading to give any relief, in other words, the plea must stand on its own two feet. This Court has held this in the case of V. Rajeshwari v. T.C. Saravanabava (two-Judge Bench):

"...A plea not properly raised in the pleadings or in issues at the stage of the trial, would not be permitted to be raised for the first time at the stage of appeal..."

47. It has also been held in the case of State of Uttrakhand v. Mandir Sri Laxman Sidh Maharaj (two- Judge Bench):

"...The courts below also should have seen that courts can grant only that relief which is claimed by the plaintiff in the plaint and such relief can be granted only on the pleadings but not beyond it. In other words, courts cannot travel beyond the pleadings for granting any relief..."

48. Mandir Sri Laxman Sidh Maharaj (supra) was relied on in Dharampal (Dead) v. Punjab Wakf Board (two-Judge Bench) on the same principle.

49. Claim of independent title and adverse possession at the same time amount to contradictory pleas. The case of Annasaheb Bapusaheb Patil v. Balwant (two- Judge Bench) elaborated this principle as:

"15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation.

- 22 -

NC: 2024:KHC-K:4361 RSA No. 200193 of 2024

Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all."

50. This principle was upheld in the case of Mohan Lal v. Mirza Abdul Gaffar (two-Judge Bench) -

"4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."

51. The Court in Uttam Chand (supra) has reiterated this principle of adverse possession.

52. Burden of proof rests on the person claiming adverse possession.

53. This Court, in P.T. Munichikkanna Reddy v. Revamma (two-Judge Bench), it held that initially the burden lied on the landowner to prove his title and title. Thereafter it shifts on the other party to prove title by adverse possession. It was observed:--

"34. The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and

- 23 -

NC: 2024:KHC-K:4361 RSA No. 200193 of 2024

possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned : once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession...."

54. The Court reiterated this principle in the case of Janata Dal Party v. Indian National Congress (two- Judge Bench):

"...the entire burden of proving that the possession is adverse to that of the plaintiffs, is on the defendant..."

55. The State cannot claim the land of its citizens by way of adverse possession as it is a welfare State.

[State of Haryana v. Mukesh Kumar (two-Judge Bench)].

15. The defendants have not established that they

are owners on the basis of partition and nor that there is a

hostility to the title of the plaintiffs. The claim of the

defendants that they were in possession of the suit land in

1939 the same cannot be the basis of adverse possession

and a claim alleging ownership on the very said date.

When a plea of adverse possession is set up, he has to

substantiate stating as to from which date his possession

becomes hostile to the knowledge of the plaintiffs. In the

- 24 -

NC: 2024:KHC-K:4361 RSA No. 200193 of 2024

absence of the essential requisites to prove the plea of

adverse possession, the defendants have failed to

establish that they have perfected their title by way of

adverse possession.

16. The Trial Court, appreciating the evidence

before it, has rightly arrived at the conclusion that the

plaintiffs are entitled for declaration and possession. The

first appellate Court, being the last fact finding Court, re-

appreciated the entire oral and documentary evidence and

arrived at a conclusion that defendants have claimed

ownership over the suit land in the year 1939 as per the

partition, to an extent of 13 acres 6 guntas of land allotted

to them and they are the owners of land and at the

another stretch the defendants contend that the

defendants are basing their reliance by way of adverse

possession. The first appellate Court held that the plea of

adverse possession is not substantiated by the defendants

and the plaintiffs have proved that they are the owners of

the suit land. The courts below have concurrently arrived

- 25 -

NC: 2024:KHC-K:4361 RSA No. 200193 of 2024

at a opinion that the plaintiffs have established their title

over the suit property and the defendants have failed to

establish the plea of adverse possession and that the

plaintiffs have perfected their title over the suit property.

The manner in which the Courts below have assessed the

entire oral and documentary evidence, this Court is of the

considered view that the same does not warrant any

interference under Section 100 of CPC and no substantial

question of law arises for consideration. Accordingly, this

Court pass the following:

ORDER

(i) The Regular Second Appeal is hereby dismissed.

(ii) The judgment and decree of the Courts below stands confirmed.

In view of dismissal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration.

Sd/-

JUDGE SWK/ CT: VD List No.: 1 Sl No.: 42