Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6111 OF 2009
KRISHNAMURTHY S. SETLUR (D) BY LRS. …APPELLANT(S)
VERSUS
O. V. NARASIMHA SETTY (D) BY LRS. …RESPONDENT(S)
J U D G E M E N T
Deepak Gupta, J.
By this judgment we hope to bring quietus to a dispute
which has its genesis to facts prior to the independence of the
country. The parties through their predecessors have been
litigating for more than 70 years.
2. Krishnamurthy S. Setlur (hereinafter referred to as ‘KS’),
was the predecessorininterest of the appellants. He was
obviously a very rich landlord. H.R. Narayana Iyengar
Signature Not Verified
(hereinafter referred to as ‘HR’), was the predecessorininterest
Digitally signed by
MEENAKSHI KOHLI
Date: 2019.09.26
12:59:01 IST
Reason:
of the contesting respondents. It appears that HR used to
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manage the properties of KS. KS had executed a general power of
attorney in favour of HR to manage the properties and he used to
manage and sell properties on behalf of KS.
3. In 1942 KS, through his general power of attorney HR,
purchased the suit properties from the then land owner. On
22.10.1946, KS revoked the power of attorney. In 1947, HR filed
a suit for recovery of certain amounts which he alleged that he
had incurred to recover the property of KS. In 1948, KS filed a
suit against HR seeking return of some documents. These two
suits had no direct bearing on the present case, but have been
referred to bring out the history of the dispute. In 1949, KS
along with his brother, filed a suit against HR seeking a
declaration that the suit property belonged to the plaintiff. It was
urged that though the property had been purchased by KS with
his own money, the sale deed was effected in favour of HR, who
was nothing more than a benamidar of KS. This suit which was
originally the Suit No.101/19481949 was later numbered as
O.S. 94 of 1956.
4. About the same time, HR filed a suit being O.S. No.79 of
1949 seeking injunction against KS and the tenant K.
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Achyuthananatha Raju (hereinafter referred to as ‘AR’). The
stand of HR was that earlier he was in possession of the suit land
as a lessee and later vide sale deed executed in 1942, he had
taken possession of the suit land and he sought an injunction
restraining KS and AR from interfering in the suit land. KS took
the plea that he was the true owner of the property and AR was
the tenant. The trial court dismissed the suit filed by HR holding
that HR was not in possession of the suit property. The trial
court held that AR was a tenant under KS. However, the trial
court also observed that HR could file a suit for possession. This
judgment was delivered on 28.02.1951. The trial court
specifically held that it could not go into the issue of title in the
said suit. HR filed an appeal against the said judgment. In the
first round, the appeal was allowed by the first appellate court
but on an appeal filed by KS in the High Court (being RSA No.338
of 1953), the High Court vide judgment dated 07.08.1959,
remanded the matter to the first appellate court for rehearing.
During the pendency of the appeal after remand, HR died and his
legal representatives were brought on record. After remand, the
appeal filed by HR was again dismissed by the first appellate
court confirming the judgment and decree of the trial court and
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AR was held to be tenant in possession of the suit land.
Admittedly, no appeal against the said judgment has been filed
and the same had become final.
5. According to KS and the appellants before us, since the trial
court had held that KS was in constructive possession of the
property through his tenant AR, confirmation of this decree
meant that the Appellate Court had affirmed this finding.
According to them, this finding is binding on all the parties.
6. During the pendency of the case filed by HR, as pointed out
above, KS had also filed a suit which was later renumbered O.S.
94 of 1956. This suit was dismissed on 10.11.1961. It was held
that KS had failed to prove that HR had purchased the properties
as benamidar of KS. His claim for ownership to the properties
was rejected. Appeal was filed by KS against this judgment
which was dismissed in default on 27.07.1966 and the same
attained finality.
7. According to KS, on 16.04.1962, he entered into a
settlement with his tenant AR with regard to the tenancy rights
in respect of the suit land. Accordingly, a registered salecum
release deed was jointly executed by KS and AR. In terms of the
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settlement, AR retained an area of 6 acres 25 guntas in Survey
No. 85 (Part) and the balance land was released in favour of KS.
An application for approval of the settlement was filed before the
Tehsildar, Bangalore (Exhibit P10) and the Tehsildar passed an
order (Exhibit P11) accepting the application and the surrender
of tenancy rights by AR in favour of KS. He permitted KS to take
possession of the suit property from AR. According to KS, he had
been in possession of the suit property and he also applied to the
revenue authorities for entering his name in the revenue record
and in February, 1963 his name was entered in the revenue
record. Further, according to KS, despite the settlement, AR
again tried to interfere in the possession of KS and AR illegally
sold some portion of the land which he had surrendered, to some
other persons compelling KS to file Suit No.O.S. 89 of 1963
against AR. In this suit HR or his legal heirs were not made
parties. This suit was dismissed on 20.07.1967 by the trial
court. Appeal filed by KS was dismissed by the first appellate
court on 31.07.1970. RSA No.545 of 1973 was filed by KS. This
appeal was allowed and vide judgment (Exhibit P14) dated
14.08.1981, KS was held to be the owner in possession of the
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property and a decree for injunction was granted against AR and
the other defendants.
8. Thereafter, KS leased out some portion of the suit property
to a builder for carrying out quarrying operations. At this stage,
the legal heirs of HR lodged a complaint that they were the true
owners of the property. Thereafter, KS was compelled to file O.S.
No. 3656 of 1981 out of which the present proceedings arise. In
this suit KS claimed that legal heirs of HR were illegally trying to
dispossess the plaintiffappellant and he sought a decree for
permanent injunction. In this suit while, on the one hand, KS
claimed ownership on the ground that HR was a , but
benamidar
in the alternative, he claimed that having been in possession of
the land and having claimed ownership thereof in a manner
hostile to the true owner, his possession had fructified into title
by way of adverse possession. Subsequently, the suit was
amended and it was pleaded that KS had been forcibly
dispossessed from the land. This suit was decreed by the trial
court on 11.10.1996. The trial court held that the plaintiff
appellant was in uninterrupted and peaceful possession of the
property for over 12 years and had perfected his titled by adverse
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possession and it was further held that he was wrongly
dispossessed by the defendants during the pendency of the suit
and, hence, decreed the suit in favour of KS. Appeal was filed by
legal heirs of HR in the High Court of Karnataka at Bangalore,
which was allowed on 22.03.1999. Thereafter, KS filed a special
leave petition in this Court. After leave was granted, this was
registered as Civil Appeal No.5079 of 2000. In the said appeal,
judgment of the High Court was set aside and the matter was
remanded to the High Court for fresh consideration in
accordance with law. After remand, the High Court again allowed
the appeal vide the impugned judgment dated 28.09.2007,
leading to this appeal.
9. Some ancillary facts also need to be noted. Sometime, in
the year 1982 AR filed an application before the land tribunal
claiming occupancy rights in the suit land. KS was not
impleaded as a party in the suit even though his name was
recorded in the revenue record. The names of HR and his
successors were mentioned as owners. Surprisingly, in this
petition, AR made a statement before the tribunal that he had
never been a tenant in the suit property and had no document to
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prove his tenancy. KS filed an application for impleadment
before the tribunal, which was rejected. It appears that the
tribunal held that the land had not vested in the Government and
is not tenanted land and rejected the application filed by KS. It
appears that after this the name of KS which had been shown in
revenue record from 1963 to 1981, was struck off without any
notice to him. Thereafter, KS filed an application for recording
his name as owner in the revenue record and the Deputy
Tehsildar vide order dated 27.05.1993 directed that the name of
KS be entered in the revenue record. The legal heirs of HR were
parties to these proceedings and they filed an appeal before the
Assistant Commissioner, which appeal was dismissed on
31.12.1998.
10. From a perusal of the above facts, it is apparent that the
claim of KS that he was the true owner of the land had been
negatived at all stages. Therefore, HR was, no doubt, the owner
of the land. The issues are – whether KS was in possession of the
land, was his possession hostile to the true owner and has this
adverse possession matured into ownership?
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11. In O. S. No. 79 of 1949 filed by HR, the trial court held that
AR was a tenant under KS. This judgment was upheld in appeal.
It is true that the Appellate Court did not clearly uphold the
findings of the trial court that AR was a tenant under KS, the fact
of the matter is that HR was not held to be a tenant of KS. On
the other hand, the suit filed by KS claiming that he was the true
owner, which was originally numbered as O.S. No.101 of 1948
1949 and later numbered as O. S. No.94 of 1956, was dismissed
and this has attained finality.
12. AR and KS entered into an agreement wherein AR retained
some portion of the land and released the balance land in favour
of KS. The surrender of tenancy rights was approved by the
competent authority and KS was permitted to take possession of
the suit property. The property was duly entered to be in his
possession in February, 1963. Therefore, though KS may not be
the true owner of the property, he obtained possession from AR
by claiming himself to be the owner and came into possession of
the property. Thereafter, in a litigation filed by KS against AR,
KS was held to be the owner in possession of the property. It is,
however, pertinent to note that neither HR nor the legal heirs of
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HR were parties in the proceedings before the revenue authorities
or in Suit No. O.S.89 of 1963.
13. The next important date is 1981 when KS filed O.S. No.3656
of 1981 out of which the present proceedings arise. Therefore,
the claim of KS had been that he was in possession of the land
from 1963 to 1981 claiming ownership as against HR and that
his possession had matured into title. The Trial Court held in
favour of KS. The High Court has set aside these findings mainly
on the ground that KS was not the true owner of the property.
14. In our considered view, the High Court has not given any
cogent reasons for coming to the conclusion that KS was not in
possession of the property. His name figured in the revenue
record from 1963 to 1981 as the owner in possession.
Presumption of truth is attached to revenue record which has not
been rebutted. The High Court has held, and rightly so, that in
the proceedings decided in favour of KS, HR or his legal
representatives were not made parties. However, the High Court
lost sight of the fact that in the proceedings filed by AR, KS was
not impleaded as a party though his name was shown in the
revenue record. It is obvious that both sides had tried to obtain
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orders behind each other’s back. Reliance cannot be placed on
either of the documents in which all the parties were not duly
represented. The net result is that KS is not the owner of the
property, but it is equally true that from 1963, he had been
shown to be in possession pursuant to the application
(Exhibit P10) and the order (Exhibit P11) of the Tehsildar. This
possession was adverse to the true owner. It was openly hostile
to the claim of HR and his legal representatives and they never
filed a suit for possession of the property. Once it is held that KS
was in possession of the suit property, the consequence will be
that he is in adverse possession. The legal representatives of HR
have failed to show how they obtained possession from HR.
Even, according to the case of HR, it was AR who was in
possession as a tenant. AR surrendered part of the land to KS
and not to HR. No doubt, in later proceedings in which KS was
not a party, AR made a statement that he was never a tenant in
the suit, but such statement flies in the face of the pleadings of
AR in O.S. No.79 of 1949 filed by HR and the decisions in those
proceedings. Furthermore, AR had executed a registered sale
cumrelease deed jointly with KS and this was ratified by
the Tehsildar.
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15. In view of the aforesaid facts, it is apparent that the legal
heirs of HR miserably failed to prove how they came into
possession of the suit property. Therefore, we are clearly of the
view that the High Court gravely erred in coming to the
conclusion that KS was not in possession of the suit property
when the suit was filed. He may have been dispossessed after
filing of the suit but that has no effect on the case.
16. In a reference made to a larger Bench of this Court in this
case as well as in other connected matters in the case of
1
. v. . , the
Ravinder Kaur Grewal & Ors Manjit Kaur & Ors
larger Bench had held that the plea of adverse possession can be
used both as an offence and as a defence i.e. both as sword and
as a shield. Relevant portion of the judgment reads as follows:
“ . We hold that a person in possession cannot
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be ousted by another person except by due
procedure of law and once 12 years' period of
adverse possession is over, even owner's right to
eject him is lost and the possessory owner
acquires right, title and interest possessed by the
outgoing person/owner as the case may be
against whom he has prescribed. In our opinion,
consequence is that once the right, 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. In case of
1 Civil Appeal No.7764 of 2014, decision dated 07.08.2019
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dispossession by another person by taking law in
his hand a possessory suit can be maintained
under Article 64, even before the ripening of title
by way of adverse possession. By perfection of title
on extinguishment of the owner’s title, a person
cannot be remediless. In case he has been
dispossessed by the owner after having lost the
right by adverse possession, he can be evicted by
the plaintiff by taking the plea of adverse
possession. Similarly, any other person who might
have dispossessed the plaintiff having perfected
title by way of adverse possession can also be
evicted until and unless such other person has
perfected title against such a plaintiff by adverse
possession. Similarly, under other Articles also in
case of infringement of any of his rights, a plaintiff
who has perfected the title by adverse possession,
can sue and maintain a suit.
60 . When we consider the law of adverse
possession as has developed visàvis to property
dedicated to public use, courts have been loath to
confer the right by adverse possession. There are
instances when such properties are encroached
upon and then a plea of adverse possession is
raised. In Such cases, on the land reserved for
public utility, it is desirable that rights should not
accrue. The law of adverse possession may cause
harsh consequences, hence, we are constrained to
observe that it would be advisable that concerning
such properties dedicated to public cause, it is
made clear in the statute of limitation that no
rights can accrue by adverse possession.
61 ……We hold that plea of acquisition of title by
adverse possession can be taken by plaintiff under
Article 65 of the Limitation Act and there is no bar
under the Limitation Act, 1963 to sue on aforesaid
basis in case of infringement of any rights of a
plaintiff.”
17. Thus, there can be no manner of dispute that a plaintiff can
claim title to the property based on adverse possession.
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18. In view of the above discussion, the appeal is allowed,
judgment and decree of the High Court is set aside and that of
the trial court is restored. Pending application(s), if any, stands
disposed of.
…………………………….J.
(Deepak Gupta)
…………………………….J.
(Aniruddha Bose)
New Delhi
September 26, 2019
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