Mallikarjunaiah vs Nanjaiah .

Mallikarjunaiah ….Appellant(s)

VERSUS

Nanjaiah & Ors. …Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1. This appeal is directed against the final judgment

and order dated 14.11.2007 passed by the High Court

of Karnataka at Bangalore in RSA No. 23 of 2005

whereby the High Court partly allowed the appeal filed

by the appellant herein.

Signature Not Verified Digitally signed by ANITA MALHOTRA Date: 2019.04.26 17:39:04 IST Reason: 1

2. A few facts need mention hereinbelow for the

disposal of this appeal.

3. The appellant is the plaintiff and the respondents

are the defendants of the civil suit out of which this

appeal arises.

4. The civil suit leading to this appeal was filed by

the appellant(plaintiff) seeking declaration of his title

in relation to the properties described in Schedule ‘A’

attached to the plaint, being the land admeasuring 20

Guntas in Sy. No.17/3; western portion of 32 ½

Guntas in Sy.No.29/1; and 11 Guntas in Sy. No.34/3,

all situated at Karagund Village, Javagal Hobli,

Arasikere Taluk, Hassan District, Karnataka. Out of

the aforesaid land, 1 Gunta of land in Sy. No.17/3 and

a portion of Sy. No.29/1 were mentioned in Schedule

‘B’ to the plaint and perpetual injunction was sought

in that regard.

5. The other particulars of the property described in

the plaint need not be elaborated for the reason that

2 now the dispute in these proceedings is confined to the

part of the aforementioned land admeasuring 1 Gunta

in Sy. No.17/3 (hereinafter referred to as “the suit

land”).

6. According to the appellant (plaintiff), the entire

land mentioned above, which also included the suit

land, fell to his share in the year 1980 after the death

of his father by a partition amongst his brothers.

However, in 1983, the appellant noticed that the suit

land, i.e., 1 Gunta in Sy. No. 17/3, was encroached

upon by the defendants.

7. The appellant, therefore, made an application to

the survey department to get the land measured. On

measurement, it was noticed that the defendants had

encroached upon the portion of the appellant’s share

to the extent of 1 Gunta of Sy. No. 17/3.

8. The matter was accordingly resolved with the

intervention of local Panchayat and pursuant thereto,

3 the defendants restored the possession of the

encroached portion of the suit land to the appellant.

9. Thereafter the appellant filed a civil suit in the

year 1992 against the respondents for declaration of

his ownership right over the entire land including the

suit land and for grant of permanent injunction in

relation to the suit land. In the alternative, the

appellant also sought the relief of possession of the

suit land in case, he is held to be not in possession of

the suit land.

10. The respondents, in substance, defended their

possession over the suit land and alleged that they

have perfected their ownership title over the suit land

on the basis of their adverse possession over the suit

land for a long period of time.

11. The Trial Court, while partly decreeing the suit,

by judgment and decree dated 14.01.1999, declared

the appellant(plaintiff) as the owner of larger part of

Schedule ‘A’ property but observed that the defendants

4 had perfected their title by adverse possession over 1

Gunta of land in Sy. No.17/3 and, therefore, the

prayer seeking permanent injunction against the

defendants as regards Schedule ‘B’ property was

rejected.

12. The appellant (plaintiff) felt aggrieved and filed

first appeal before the first Appellate Court. The

respondents (defendants) filed their cross objections.

By order dated 10.09.2004 in R.A. No.11 of 1999, the

first Appellate Court, in substance, upheld all the

findings of the Trial Court but modified the decree to

some extent regarding the measurement of the suit

land.

13. The appellant (plaintiff) felt aggrieved and filed

second appeal in the High Court of Karnataka. By

impugned judgment, the High Court partly allowed the

appeal and declared the appellant (plaintiff) to be the

owner in respect of the land admeasuring 19 Guntas

in Sy. No. 17/3 and 11 Guntas in Sy. No. 34/3 but

5 dismissed his claim as being the owner of the suit land

admeasuring 1 Gunta in Sy. No. 17/3 and instead

declared the defendants to be its owner by virtue of

their adverse possession over the suit land.

14. It is against this order of the High Court, the

appellant(plaintiff) has felt aggrieved and filed the

present appeal by way of special leave in this Court

15. So, the short question, which arises for

consideration in this appeal, is whether the High Court

was justified in holding that the defendants

(respondents) have become the owner of the suit land

to the extent of 1 Gunta in Sy. No. 17/3 by virtue of

their adverse possession over it.

16. Heard Mr. Rajesh Mahale, learned counsel for the

appellant. Despite notice, no one entered appearance

on behalf of the respondents.

17. Having heard the learned counsel for the

appellant and on perusal of the record of the case, we

are constrained to allow this appeal and set aside the

6 impugned judgment to the extent it declares the

defendants (respondents) as being the owner of the

suit land admeasuring 1 Gunta in Sy. No. 17/3 and,

in consequence, decreeing the plaintiff's suit in

relation to the suit land against the defendants.

18. What is “adverse possession” and on whom the

burden of proof lies and what should be the approach

of the Courts while dealing with such plea have been

the subject­matter of a large number of cases of this

Court.

19. In T. Anjanappa & Ors. vs. Somalingappa &

Anr., (2006) 7 SCC 570, this Court held that mere

possession, howsoever long it may be, 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 owners’ title.

20. Relying upon the aforesaid decision, this Court

again in Chatti Konati Rao & Ors. vs. Palle Venkata

7 Subba Rao, (2010) 14 SCC 316 in para 14 held as

under:

“14. In view of the several authorities of this Court, few whereof have been referred above, what can safely be said is that mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The possession must be open and hostile enough so that it is known by the parties interested in the property. The plaintiff is bound to prove his title as also possession within twelve years and once the plaintiff proves his title, the burden shifts on the defendant to establish that he has perfected his title by adverse possession. Claim by adverse possession has two basic elements i.e. the possession of the defendant should be adverse to the plaintiff and the defendant must continue to remain in possession for a period of twelve years thereafter.”

21. Keeping in view the law relating to the adverse

possession quoted above, when we examine the case at

hand, we have no hesitation in holding that the Courts

below were not justified in holding that the defendants

have perfected their title over the suit land qua the

8 plaintiff by virtue of their adverse possession over the

suit land. This we say for the following reasons.

22. First, it is not in dispute that the

appellant(plaintiff) was the owner of the entire land

including the suit land, i.e., encroached portion, which

was alleged to be in possession of the

respondents(defendants). In other words, the

respondents(defendants) have admitted the ownership

of the appellant(plaintiff) over the entire land including

the suit land by setting up the plea of adverse

possession over it; Second, the burden to prove the

adverse possession was on the

respondents(defendants) because it was they who had

set up this plea; Third, the respondents(defendants), in

our view, failed to discharge this burden; Fourth, there

was no element of either adversity or/and hostility

between two co­owners/brothers because in a dispute

of this nature where both the parties are related to

each other, the possession of one is regarded to be the

9 possession of other unless the facts show otherwise;

Fifth, the respondents(defendants) failed to adduce

any evidence to prove that they were asserting their

right of ownership over the entire land or the suit land

or its part openly and to the knowledge of the

appellant(plaintiff) continuously for a period of more

than 12 years; Sixth, it is a settled principle of law that

mere continuous possession howsoever long it may

have been qua its true owner is not enough to sustain

the plea of adverse possession unless it is further

proved that such possession was open, hostile,

exclusive and with the assertion of ownership right

over the property to the knowledge of its true owner.

Such is not the case here. Seventh, this was a case

where both the parties were not aware as to how much

land was in exclusive possession of each. In other

words, here is a case where both the parties to the suit

did not know as to how much land was in the

exclusive possession of the appellant (plaintiff) and

10 how much land was in possession of the

respondents(defendants). It was only when the

appellant(plaintiff) got the suit land measured through

the revenue department in the year 1983, he came to

know that some portion of the land, which had fallen

to his share was in possession of the

respondents(defendants).

23. Thereafter the appellant(plaintiff) filed a suit in

the year 1992 against the respondents(defendants) for

declaration and injunction and in the alternative also

claimed possession of the suit land. The suit was,

therefore, filed well within the period of 12 years from

the date of knowledge, i.e., in the year 1983. During

this period also, there was no evidence adduced by the

defendants to prove that they ever asserted their right

of ownership over the specific portion of the suit land

as belonging to them openly and with assertion of

hostility to the knowledge of appellant(plaintiff).

11

24. In our view, the appellant(plaintiff) having come

to know that the respondents(defendants) had

encroached upon his land in the year 1983 and he

rightly filed the suit within 12 years from the date of

knowledge, a plea of adverse possession was not

available to the respondents(defendants) against the

appellant(plaintiff) because 12 years had not been

completed by then.

25. In this view of the matter, the question of

respondents(defendants) perfecting their title by

adverse possession over the suit land did not arise. As

mentioned above, even if the respondents(defendants)

claimed to be in possession over the suit land prior to

the year 1983, the same was of no consequence for the

simple reason that such possession was neither

exclusive nor hostile and nor it was to the knowledge

of the parties for want of actual measurements.

26. It is for all these reasons, we are of the

considered view that the Courts below were not

12 justified in declaring the respondents(defendants) to be

the owner of the encroached portion of the suit land by

virtue of adverse possession. This finding, in our view,

being against the settled principle of law deserves to be

set aside.

27. In view of the foregoing discussion, the appeal

succeeds and is accordingly allowed. The impugned

judgment is set aside. As a consequence thereof, the

plaintiff’s (appellant’s) suit is decreed in its entirety

against the defendants. The defendants(respondents)

are granted three months’ time to vacate the

encroached portion (1 Gunta in Sy. No. 17/3) and

hand over its possession to the appellant/plaintiff.

………...................................J. [ABHAY MANOHAR SAPRE]

…...……..................................J. [DINESH MAHESHWARI] New Delhi;

April 26, 2019

13