Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.7768 OF 2011
Mallikarjunaiah ….Appellant(s)
VERSUS
Nanjaiah & Ors. …Respondent(s)
J U D G M E N T
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:
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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
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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,
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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
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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
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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
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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
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, (2010) 14 SCC 316 in para 14 held as
Subba Rao
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
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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
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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
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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).
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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
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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
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