IN THE: HIGH COURT OF KARNATAKA AT EA_1§a"GAL_<§_R£:;_.V _
name TI~§iS THE 33" DAY 01:' MARC.§(f2Q0¢§i:: ._ 3
BEFORE;
THE HCJNBLE MR,¢\I_{IS'FI4(j--!E',V'I\é---ANA§§I32'\:V Q'
R.F.A,1vo.411';-$99 ;1)E:::*:V_ T
BETWEEN: V' V" '
Sri.A.KIishnappa, 9
S,' 0.Ak};~':appa, V _ '
Major, "
V
1Main t<oa¢.«,"::v" 'W »
' . " " _
BangalO_rQj-- 550 ' ...AppcIla.11t
(By sri:.s.shakei~3h_§tty;"A§1vo¢aie)
AND: & " V' fl '
Jaya;"am.. A. V V
'~ _ASinf{;ci~<:i;,%Qcascd 'h;is'LR3.
1%.)
'*-W/(0. La:c"'Va3*aram
Agecififi yczé:"js.A
1{b)'.44Ad:iia1'é@;ana,
-aged 37ycars.
. V' ' -- 1{.r,:_] Sishwathanaxayana
' e...g<:<;i'35 years.
I'_' A' -1121} Sujatha,
aged 33 years.
1{e) Rajappa,
aged 31 years.
No.1{b) to He) are children
Of Late Jayaz-am,
All are residing at No.9
11 Main Road, I Block,
Goragunetepalya, ' A " * '
Bangalore «~ 560 022. -._,,..Respondt::1ts
(By Sn" A.V. A. _
This appcalris 9.67'of CFC, against
the judgment V'_.'&cC.'rccj: .s1~at¢a. "12;o.3;1999, passed in
0.s.No.42681'_1Q39;j'km tP1e_fi}:; orjmga. V Addl. CCJ, Bangalore:
City, dismissi;'ing,tht:" éuit fca5'.d'éc1a;*ati31:'and possession.
ThisV"'T'a§.s1§::a1 'ii1€Vi'5ri;t'1g"'bce11V"Vhca11ii and reserved for
judgment 011.2 1';{}'2.-.«2(}{19',' ~t_1:iis__dacr, the Court pronounced the
Ibliowingi-_ ' ' '
an' "a}3peal«'filed by plaintifi' against judgment
~12,d3-_1999 passed in O.S.No.4268/1939. In this
a%g;p§é1%pax1x%' 7;': Wm be mm' to by their array of ranking
V -- Vbcforé" t1z1c" court.
' V. The suit for declaration of title and possession of
schcadulc property was film by plaimzifl', intar aha,
ficontcndixlg that elder brother of plaintifi'-Muniswamappa
had allowed the defendant to mcupy suit schedule pmpcrty
iefailed to pmve that deceased Muniswamappa had executed
(vii Whether the plainfifi proves _&
the suit? V 'L K 4
(viii) Whether the
future mesne if V
so at what
(ix) To what relief: '
6. The the following
findings M
Is$ue_.Ne;».1f§" " 1'
.. ' "
Issue ' * é '
V. No.44": A.Affi1Ine1five
V eefilegative
Vissxge ' ?J.ef Negative
AA Iszsue:No.8: Negative
" Ieésue No.9: as per final order
7". The learned txtiai judge has heki that defendant has
an agreement of sale dated 10.10.1976, general power of
attorney and affidavit datcd 8.8.1988. The _
has held that the Wife of the defendai1»fA'Viias
to suit schedule property by n
plaintifi' has failed to prove: t1iat%V4§1e§cndan:@j1ad%%g3zg£ in %V
possession of suit lea§rA W to me).
1.
‘of the appeal, the legal
repmsentativgzs _ of _ defendant have made: an
applicéifioia lII}CIv”Ci’w.’ {::.;¥1′(it,f#’ 41 Rule 27 (1) CFC along with
The plainfifi” has filed objections. The
Afimrifg and relevancy of the documents wili
_ be course of the judgment.
.A Lhavc heard Sri.S.Shakc:r Shctty, learned counscl
‘pl.5;%:i1tifi” and Sn’.A.V.Ga11gad!1a.rappa, learned ceunscl for
dfifézndant
11. Having heard the learned Cotmscl far particg
and bearing in mind fiamc of the suit, defence evidence
issues. In the aforesaid judgment, the SupI1cmt;«..f:’;fV3::ji1–:t§’»1ias;.
heId:- V’ M %
“The Itspondent cvenv-‘iho’ugh ‘;3-<$V't~
appealed may support the d::cn*;'e[ 1.3911 'any
gmund but if he wantsV»$m_4_modify_ ii; he "file: .
cross-objccticn to the decujtiébwhich—ohjaciioiii§ 115
could have takcn_carIicr b1,r a;:ipc31."_.'§
15. Sri A.v.Ganga;ihara§;$a, Counsel for
defendant, V’ c1r-f Supnzmc Court,
reportgxi’ _1 §§§’s¢~3.5?1 me of Ravmder’ Kumar
others) has contended that
filing of cxvéjiss-obj;c E;i<§i:_,u the 1976 Amendment is pmtly
'~ opf:§d:1a;1_Lé11:c1 not' 3::-datory.
' on hand, defendant is assailing that
finciifigsv by the trial Court as they relate to proof of
agxnaéznzénthvfif sale dated 10.10.1976, General Power of
..:"..A§tfo:.1:A1cyNdatcd 08.08.1988 and afidavit dated 08.08.1988.
Eléfendant is not seeking modification of decree.
– M vhe–«acccptcd. The defendant without fiiing
(“an attack adverse findings reoonicd against
x V’ was not the absolute owner of suit schedule
— The suit for declaration and possession without
” miinpieadifxg the wives of deceased Muniswamappa is not
{I
16. In a decision reported in AIR 1999 s<:?_j35'2f1: eg ee
case of Ravinder Kumar Qt'?
others), the Supnzrae Court has heleizg A’ I T» A. b
“The Iespondentedefepdaxii
can. Without filing ciossfelijexzfigix
adverse finding in has
been passed agajfist’ for the
purpose extent the
lower a Sttit against the
of cross–
Gbjectiésgvg’ th.e’-._IV_’9;?6″‘!3.m§cndment is pmeiy
éyptiorbai Va”:.;d.._»1a1’ot fiaafidatdry.”
_ ‘F11er£:ferc,, made by the learned Counsel
Tee learned counse} for defendant has submitted
‘ /x._.
maintainabie.
W
18. The plainfifi has produced partition _
Ex.P.1, under which survey No.8/4,”v§’hi<:h
of suit schedule property was ».s}:::aI'v1'=Tt";"v:*vbi "' ~.
deceased Muniswamappa ‘V
of deceased Muniswamappa.
During lb ‘ehas admitted
that plaintiff are direct
bmthers. J issuelcss. There
was no Muniswamappa. There
was no iiartebztioil and the wives cf deceased
Munisw_ama;ipa.V’ In ‘V~.vie»3v “of documentary evidence as per
‘~ fix. the oIA’e1″evixienee, defendant cannot be heard to
$ay i:1’1ajt” no right to file suit for declaration and
seheduie property.
Ac l.9′.=—-I:i3:1 a decisien reported in 1955 (2) ML} 143 (in the
« e_f’Shivangouda Vs. Gangawwa), this Court has hcId:-
“Where one ca-owner brings a suit for
ejectment of the ttespasser, the decree must be
for possession of the entire property and cannot
be Iimitcd to the plainfifllco-owncI”‘s sham ~
I31’0PC1″£V- _ .
There is a cat:-na of decisions 1vi1icki:’_h,d¢c ” _
taken the View that one
bxing a suit for ejecting 3 the”
property owned by othéxs aithéfizf
or as cwowncrs, the haSi§df§$i1;g hds a
right to hold evéxg incfimdfidfghicfd’-joint pmpmy
until a division tai{eS_d_13ié1C€E}”{} ”
Thcrcfo:t;(§p§1te;i%io1i: 0″fVd§§fc_i1dé1I;£–V1:;bat plainfifi had no
locus accepted.
26. that defendant was a
fiiend ” ddceagiéd Mmfiswamappa. The defendant was
defendant had resigned finm job mld
no avocation. Therefore, deceased
permitted the defcndmt to occupy suit
Zsitc to eke out his livelihood by rimnjng a fad
2}. Per contxa, the defendant has contended that on
10.10.1976, deceased Muniswaznappa had exccutcd an
agreement of saie in favour of the wife of
delivered possession of suit ¢_
performance of agreement. It is __
deceased Muniswamappa hedv.V:’L’e;2:ecufed._ éieioiver of
Attorney dated 08.08. 1933 a:;d~a;u§3ea£e:.ea£¢&’ee.oé. 1933 in
confixmafion of agreeiiiegxt figted 10.10.1975.
Therefoxe, in on;i_e’1’fl__1;o ayeié of it is necessary
to decide if V ”
examining himself has
examiiled DW2-B.1vi.Ma1isWamy Naik
and prove execution of agreement
of sfa§1e”datedV 19%’), General Power of Attorney dated
j’e23A.f(5e. 1§,¥fseian;i agifidavit dated 08.08.1988.
” . h adverting to appreciation of evidence in
Qfeabove documents, it is necessary to state certain
V’ aA<A:iiI);:E.i&:&tecv1V" facts, which have beaming in pmof of these
— dixzuments.
24. The defendant has contended; on 10. 10.19’3″6 and
subsequent thereto there was ban on mgsuafion ofnzvenue
sites. Therefozm, deceased Muniswamappa coukifiotictacexi V”
registered sale deed in favour of fi1é’m”*ife “pr
terms of agreement of sale dated 6. d.efe1i§:iéuzA:xt ” ._
has not pmduced any evidence ‘V
of zegistration of revenue’, sites time.
25. The Plainttiif’ _ notice before
institution of s11it;’–‘f11c any Iepiy
noficc and _he§’–: _’._V_1:1o£.« V’ for not
causing V
25.4011 .DW3-Munivenkatappa has
deposed had sold one of the
V. s1i1’ve3r…!\Io.8[4 in favour of Jayalakshmamma
i_1aa deed marked as Ex.D.7.
the contents of Ex.I).’7, we find on
deceased Muniswamappa had sold one of the
in survey No.8/4 to one Jayaakshmamma.
V’ dcfenziant has failed to prove there was bm for
ifregistratrion of revenue sites on 10.10.1976 and subsequent
?11€I’Ct0- (f\; ‘ ,»\,,. umg-ed .
for time on that day and those who
him that he is Muniswamappa. The
_ yottriger brethet of deceased Muniswamappa had also came
he was a minor, he did not execute the
etoemveient DW2 has depeeed that he cannot identify the
ifshown to him. On page 2 of Ex.D.1, there is no
Lhsignature of executz-mt. On the back of Ex.{).1 the words
remember the names of attestors to both the ”
DW1-Jayaram was present at the time of exectttziéh: of
&; Ex.D.2; he does not know whether” ‘.’Z1\_ii’–.1_
Ex.I). 1 85 Ex.D.2. The trial
this witness as follower-
"The Witness: the The witness has the name of the
amount _..ef._ “_’C0I1:Sid£fiI’éiiQn=._’:i:!!3.V, ij’Rs.85{)O/’-,
Rs. * “R’§;1V1′,’£V(){}O/ ~, whenever
qizaestie-:1 these things he used to
look “Say the answers.”
DW2″ A. edmiticd that he saw deceased
A.Mt111iswamappa are erased as per portion
his as and siwaturc of deceased
is. marked at Ex.D.1{a). DWI has idcntnfixd’
_. £t3x.D. who are stated to have attested E1x.D.1.
15 days prior to 10.10.1976, them was negotiation
betwmtn defendant and dc-ccasad Muniswamapjpa. The
on 1010-1976 itscif and thcmaficr I saw it befo’1~e3§l_:;£.§’1§3T» .
today only.” {N13, Narsamma. Jayagam ” ”
Muniswamappa were: only present 5112;’
No advance was paid in his pmficxgcc. xsaic
was Rs. 1 1,000/~.
33. Now advcrfing tofihae§§iisii;nL4év,;5i’*:£icfé11dant, at the
outset, it is nccféésjgztgg 3;.”,gta1r:’ :tlié1t.: aéfecficnt of salt dated
10. 10. 1975 ciges; defendant
has deposed that deceased
Muxziswamafipa had agreement of sale in favour of
thé Hanumanthappa and Chcxmappa, as per
cross-examination, DWI has deposed that
3’\I k K /KM. fix/x,…
part of’d_eJeument is marked as Ex.D.2{a).
the agreement of sale dated 10.10.1976 {marked as
agmement of sale was prepared near
wrote the agreement of sale. DWI :k1as’depoeee5i K u
not know on how many stamp
was WZ£’ittl’:’.II; he does not ‘*ve;nd0r”‘ V
stamp papers were brpilght VAh3,;:}V1ui2i$wa.1’15appa,A..ibeceased
Muniswamappa told [to consideration
of Rs.2500f — at the time”o§ efizigeeemcnt of sale.
SW1 has agreement of sale dated does not bear the signatiexe DWI has admitted
that en.’ of first page of agreement is
eraseti” marked as E.x.D1(e). DWI has
‘% V» “c1e1:§i3{s.e€I’ ‘th§t.;1e deg; eat know if the signature cf deceased
was erased and in its place another
on page No.3 of EX.D.2. The relevant
” 35. Thus, on careful examination of the document, i
Ex.D.1) contafins several manipulations and alteratkms. On
the back of first page of document, the name”-«df
Muniswamappa has been erased. I-“I’}1e’-«tifatie
treasury seal is altered. The second’dpVage_d6f i; .,
bear the signature of the II ‘V
page the date of treasuryseal ..
The learned trial dfidge. (:.);£’.z«’»di:é1e.i:*i.;2§ig.’,:ani1_Vthese material
discrepancies to the naked
eye and to 3 has rightly
heid pmve execution of
agreement ‘pf 5;:-.1-3 }v:17a>s:::d_: ‘mt. 149}”1v9*.r5.!
36. On’ and re-appreciation of
v,evigvieI1C_’=;’3’«:. I E not” any reasons to differ with the
é.fQ1es:;tated«v1S;nddf1s1§g”‘reco:ded by the trial Court Thcrcfom, I
hold’. has failed to prove execution of
age eme§it,pf.g.a£1é. dated 10.10.1975.
The defendant has contended that deceased
‘ fififiggjgwamappa had executed General Power of Attorney
‘».{i_e;ir:d 08.08.1988 as. per Ex.D.2. This document was also
Written by DW2-B.M.Mafiswamy Naik.
g’\J’ _ . _ /\ .é;\V/L/1. e
2?
notice that ageement of sale dated ,9»
Power of Attorney dated 08.08. ‘
08.08.1988 were written by BfS§42~B.s&;–h(is:iswaysi§v ,
is not a lioensed deed writer. in
View of glaring intetpolstions in the
document and on oral evidence
has rightly held, prove execution
of aifidavit
47.; ‘discussion and for the
reasonsivfist.-ateciwdv “answer points 1 8; 2 in
negative.
V’ ‘Reg. ..’§?oiH§§s.Nos.3: H “”” ” ‘V
‘her title suit schedule property by adverse possession.
written statement nms to 17 typed pages, averments
Aiyrifzten statement misting to plw of adverse possession
” very sporadic. The averments of the written statement
V V’ statement, it is the contention of the
wife namely Narasea had perfected
relating to plea of adverse possession are as fo1Iows:—
‘ ” over the said site property by way of
A “it could hardly be construed as pica of adverse
‘ ficgsscssian. It is not even staisd that the wife of dcfcndant
‘4 nttsas in possession of suit schedule pmpcrty from the year
At the end of para 13 of written _
stated : «
“…The possession X t
above said site pmpcrty in
defendant and his has
and peaceful since from isfgthc
date of sale in.f£i1l9ur_«”ét’tiisqiéfstxdanfs
Thus the defcnttsxit’ ‘1i’as.i? “eontinnous
posscssricsn . and jc>.3;i§:xci1t’& ‘of I property
said “mare to the
and other public
mcxudsmg {as-, V A.Muniswamappa
ttrho_ ‘?.:;:e:§,11 ” – ___
At the c11ti’–Qf statement it is statcd:–
” “…”‘ dsakndant also submits that his
– “has got the prescriptive right of
« ativsrsc’ possession.”
<5;~$§;':. The avcrments of written statement extracmd
1976. adverse to the interest of deceased .
and theleafter to the interest of
so. In a decision reported in 2.0(1i8_.AIR
the case of Hemaji Waghaji Jai~vsI}f$;s,.3rziiciea;s;eafe:Ki::§}igeabvui
Hanjan as Othewsj, the
decided cases regaxding {possession has
held:- V % V 'A
is not a punt:
(me of fact and
claims adverse
(a) on what date he
4(b) what was the nature of
4; e his pcV)s:’;.e_ssi1on, (C) whether the factum of
V’ 1:x;ssess10n” was”knmm t0 the other party, (:1)
_ his possession has continued, and (e)
was open and undisturbed. A
_ p1eaci1ng adverse possession has no
~~ee{t!ifies in his flavour. Since he is trying to
V A’ defeat the rights of the true owner, it is for him
to clearly plead and establish all facts necessary
to establish his adverse pessession.
The law of adverse possession which casts
an owner on the basis of inaction within
j important cases decided by the Supreme Court
: regarding the principle of adverse possession, which are as
limitation is irrational, illogical and %
dispropertionate. The ‘a’s~–.it
ext1’Cm_e1}’ harsh for the iI’ U-Ac
Windfall for a dishonest pemon. {a’he’*had _
taken Pflssession of ‘Of ‘
owner. The law qgght 1:0! V:t’0«.be.1;efit’ £3′
who in a cla:3destinezV§rna:eL_ne::_*’tekgg, of
the property of the of
law. Them med to flesh
look on;
The Ufsi9ni_ £3:€_ ifidia to seriously
corisidcr § §t111dAv’:ié:x&1ke’~siiita%§ie”eliangcs in the law
ofadvetscv ” ‘ ‘
‘I11 4fhe’iIn$t}§i1t:_ f;a§e;’. it was held that the
” hafifig to plead the case of
and no issues having been
that behalf and the plaintiff having
to establish title to the suit
.’ * Vtiiie suit for declaration and possession
°m;g1;:”i;ot have been deemed on mama of
.. adverse possession.”
‘:5 the afomsaid decision, the Supreme Court has dealt
f0110Ws:– /’_W.~C1_’\
ssbsema as
V is well settled that in curler to
‘ .__”sstab1iSI:; ‘advérsc possession of ncm–eo~hcit as
* gpxls” out of thsm is in soak: possession and
” eynjoymcnt of the profits, of that propcrtics.
’12. In Sccnztary of State for ‘mc1;=:g vi
La! Khan, AIR 1934 PC r23,__it was I
the oxtiinaxy classical
possession is that it should
ncc pmcario must
be adequate; in and in
extent to
me
13. This Raddy v. L.Lakshm;i
Rcd’c1y_r,”A1RV.V195f? ;sc:s’3’i4, while following the
ratio (ii? VDebvc{–nd3.fa *LaI Khaxfs case (supra)
another it is not enough to show that
Custer of the non-possessing oowhcir by the co-
hcir in possession of one on-heir is consid-cmd,
in law, as possession of all! the co-heirs. when
one cowlxcir is found to be in possession of the
32
properties it is presumed to be on the basis of—.__
joint title. The oo–heir in possession
tender his possession advezse to the .. ;_. A’
heir, not in possession, merely by L” %
hostile 3111111′ us on his own part »in&de_iog;;’1i:Iou’ ‘ of _V
the other co–heir’s title. It iss setfie¥”3 mgr A
that as between co–hci;is there”z3:_u 1st be eeiiidenee
of open assertion of titie, ‘
exclusive possession am_i__VVei:jo5′:§nen’t’ hyVV_91;§% of
them to be of . £i1e__vofhe_r so as to
constitute ouster.” _ ‘
The couiif V — A
_ out ouster is on the
»fi::@lis1s1ace the lawful title of a
ctrheir by adverse possession.”
. A “I3; Vs. Bibi Sakixaa, AIR1964 so
1 i2ES4’_,’i:~”i’is1ayat11i]ah J. speaking for the court
. obfizyetfss under:
H ‘fidverse mssession must be adequate in
eonfintiitji, in publicity and extent and a plea is
required at the least to show when possession
becomes adverse so that the starting point of
fixnitation against the party afiected can be
found. There is no evidence hem when
‘i’xssiVs”taVi:1t1–A”e’A Cbmmissiefier that the appefiant
possession from 1968, he
have not ,been pleaded. Admittedly the appellant
“into possession by a derivative title from
‘:_j_jt1iL:V61’i§na1 grantee. It is seen that the original
has no right to alienate the land.
;<'I'herefore, having come into possession under
possession became adverse, if it at all did 555;:
mere suggestion in the relief clause. .
was an umhterrupted
years" or that the
absolute title was not:7en_puglV1" Ia5se' éu1ch_VVg
plea. Lang possession i.§V"net»ncceSs.a1ii}–édeexse
possession and the eiause a
substitute for 3 Pieé£."._ u V'
15. Thefaets 85 Ors. v.
State 9f”. .3; {;99s)”6″ see 309 are
sun’ 1la1″‘ to the ease, this
court . ‘
” The-qfiesticm: is. the appellant
has titile afivetse possession. It
is that a cbzxtefitiofx was raised before the
by adverse possession. But
the to constitute adverse possession
eoiour of title fiom original grantee, if the
{fv , 5/L/\,~ێ,. :-
appellant intends to plead adverse possession as
against the State, he must disclaim his em-. and . “,
plead his hostile claim to the knowledge of flies.
State and that the State had’ not
action thereon within the p1escribe_d__ _
Thereby, the appellant’s [possession ‘
become adverse. No such stsndifireis take}: nor 1
evidence has been adduioeagi .
counsel in fa1m’ ess, his “‘;agg’¢’g.-;ch;fl: is
unable such plea
havi11g”Vbeet1 ‘i:’ea3;en”b3,: sfpficeflant.”
Am. vs. State of
$1997) 7 sec. 557 this
eta z1s»–ui:1;ier:
the absence of crucial
which constitute adverse possession
_ V’ to show that the petitioners have
continuous anfi uninterrupted
possession of the lands in question c}anmn’ ‘ g
zigiit, title and interest in the lands in question
‘flellostile to the right, title and interest of the
original grantees, the petitioners cannot claim
that they have perfected their title by adverse
possession.”
_ ‘/L-«.. 5;x.t-‘LA _
35
17. In Md.Moh.ammad Ali (Dead) -by
Jagadish Kalita 85 Others (2004) 11’SCo.e’o2?’r, ”
paras 21-22, this Court obseLgred.aefjuix£ie1j’ ‘
“2 1. For the of
possession] ouster, the __gi”efeI;d;a11t.’muet
prove amm’ us poéeidendi _ VA –. .
22. We.:.1nay that in
a proper the to construe
the g:;:1t1i4neV in come to a
conc111siVo’3t11’V.;u.:;s the pmper plea of
hz-_1s– Voeea raised in the
” not which can also be
gatlfieged _ oumulative efieet of the
; ‘avermentsi1’1éde therein.”
;:iY£–?, _Kan:1ata.ka Board of Wakf v. Govt. of
i13.{1yia1 (2QQ4( 10 sec 779 at para 11, this oourt
ob$e’1’ve;d”as under:
” “:31 the eye of the law, an owner would be
; deemeé to be in possession ofa property so long
as there is no intrusion. Noxruse of the property
by the owner even for a long time Wozft afiect his
title. But the position will be altered when
another person takes possession of the property
JV , ($1/kw
3 other ,**7{_1) long his possession has
A his possession was open and
A pezson pleading adverse
has no equities in his favour. Since
as
and asserts a light over it. Adverse possession is
a hostile possession by clearly asserting hosfqik?
title in denial of the title of the true owner mess ”
well-settled principle that a party “‘
adverse possession must
possession is “nec vi, nee c:}.am:…1ie»c jproeériofl’ f
that is, Pfiacefule °P”m,= and €i9’iiiinu0″§.”.’, .i:'”£’1ie vi
possession must be afieqfiat
publicity and in exten:___:”t.o,_ sluiowihihst
possession is toiihe Iiiust
start with a dispiisitioii-iojf_i1;e iightfui
owner ancdibe aetiisl,’ v.ei:cl.§iisi§e, hostile
and continued over ‘ehe . ‘
The court furthei eeseseeeieeeieieite.-it». plea of
adverse possessiozgi isiiot sqiiestion of law
but a hleiided oiieaoif ‘Therefoxe, a
person véiio ‘ ~ .. possession should
shcssz: fa) into possession,
(b) was ns.mr_ej=of his possession, (C),
Whetiiex possession was known to
he”~a:e”‘veying to defeat the rights of the true
owneijsit is for him to ciearly plead and establish
U ‘\/\ 4/» A
all facts necessary to establish his ‘. j” .’
possession.”
19. In Saroorp singh v. Ba;;to;”%20k’?S)’j’8 S00
this court obsexved:
“29. In terms of =55 rim»
point of }i}::1it211:io11A..’_t.;’i’;,3-t:s fiofmuthc
date when the right of to the
plainfifi date the
defendalsfs ‘ “adverse.” (Sec
Vasaritjbaifi V. V. ” V. Somnath
Mmgibfiag Nz§§:ai{ (QQG4) 13860376).
‘« * 33¢:-ssidcndi’ is one of the
ingredients of adverse u’po_sscssiQn;;_ “listless the
person p9sscssi;1g thc _V_ 1 1as I a xtquisitc
animus Ebvfcz-r does not
commence; case, the appellant
catiigogicafly .st,v:«’1’t’:=..~s ..h is’ posscssion is not
advérss Vvas off we owner, the logical
comiia_[§yv’««is’-»that hé not have the Iequisitc
sa;’f;nt1s’«(St’é§:+ MdtMohammad Ali (Dead) by ms.
= « 1vg;’;1’agca~;s1:; I{aiifaAand others (2004) 1 sec 27).”
A f2{).__ This principle has been reitcratcd
latérthe case of M.Durai V. Muthu and others
(2007) 3 sec 114 para 7. This court obsetve¥c¥_’V:—::__: r»
as under.
“In terms of Articles ‘the- old} A {V7 –‘
Limitation Act, the was Bound gjxtfiée
his trifle as also possessiofiu…
preceding the date of ‘of suit
under the Limitsttéon ” once H the
p1aint:ifi”proves his fitte,1bu.r;iej::.sh§fts to the
defendaot.t:)v.est.at3Iish’:ti1a;tt«i:eV_hsasgfreifocted his
titie by po’ssessio;1.”j– V t
—- to examine
the ._ of_ possession in
Tfiojanappgi’ Q35 Somalingappa 85 Am.
(2006).. The court obsenred that a
.. poison who bases his title on adverse possession
‘show by clear and unequivocal evidence
1 was hostile to the meal owner and
t’ azxioimted to denial of his title to the property
The court further obsexved that the
ttelzissical requirexnents of acquisition of title by
H adverse possession are that such possession in
denial of the true owncfs title must be peaceful,
open and continuous. The possession must be
open and hostile enough to be capable of being
known by the pagtties interested in the ploperty,
39
thongs it is not necessaxy that theme shank;
evidence of the adverse possessor aeimaliy :”
informing the read owner of the fotmefie» .
action.
22. In a xelatrivegr «feeent ”
F’.T.M1n1ichikk:-mna Reddyefiso 018. V.’
Ors. (2007) 6 see 59) “ooiizi agaii1~hac}..’§an
occasion to of adverse
possession in detgj1;- i;*1ai¢e’%§§au:1;TV’a;e.c;e’eaxamined
the legal: fp0si’EA1A1’o1:r»1′ countries
pa1″t:i<:::1:;3'£;21fI_\§;i:ALj: i1:_: Aniefican system.
We deem it appmpgéiafev
passages in extensol-_ The' coi~i it..Vde's1io'g
adverse possession in paras S aiizdkfil as
under:–
« 5.. AA_d\’rAe’1~»5e’ g:o’s.session in one sense is
based on ntheoi3,r_T’o;f” pieevsumpfion that the
ownerflhas abmicioned ‘ like property to the
adverse_ yossessof oiethe acquiescence of the
K hostile-* “acts and claims of the
” ‘V – fpoissesjsion. It follows that sound
_of’.”a typical adverse possession lie in it
Vb”eing__ o}:ei1;’ ” continuous and hostile. (See
Deming—« v. Bind 100 So.2d57 (F1a.1958),
Arkaztisas Commemorative Commission V. City of
3x? , J34, x -« OLA ,
studying the Amciican notion of
possession, especially in he ” is
Limitation Statutes, that int£:i11ioi’i_Vvbfo: t 1′
dispossess cannot be given fa coiafipléizc ‘: ii
Simple application of Limitaiioxi”.Vshall.’v:ioi,».b.c”
enough by itself for thc.__éu,ooesé;” of
possession claim.”
23. Then: is £ir;ot31é:_thc matter,
which needs to
right of
be not only a
fright but also a
case, this Court
obsorvcd . rights have been
hjsierggauy? in tho realm of individual
_; i rights sign” as, right to health, right to
livciihood, shelter and employment ctc.,
human rights are gaining a
dimension. Right to property is
a§so.Vooi1sidcrcd vciy much a party of the new
, “r1ifucnsion. Therefom, even claim of adverse
AA possession has to be read in that context. The
: acfivist approach of the English Cbouxts is quite:
visible from the judgments of Bcaulanc
Propefiios Ltd. V. Paimor (2005) 3 WLR 554 and
JA Pyc (Oxfovd) Ltd. V. Unitcd Kingdom (2005)
49 ERG 90. The couirt herein tried to maéz
human fights position in the 0f’ad§?e1§e: =
possession. But What is ca§i1mei1dab.1c -iis
the dimensions of human [ywideficd ” 3
so much that new pmjwefizy dispute eis$fieé;;_’areVV
also being raised within 61′
Tights.” ” V’
24. With the c:cpa:;diz5g’Jji:1:asj5;7u;i¢::ee of the
court has
taken. Veéiieejzst of adverse
possessiqfijfitigment of JA Pyc
(€}::tfcm.1.)’:L;V Efiij, Kingdom which
bwnezship of land by
vlritge’ of gieeéceésion.
In case, ‘the appiicant company
e V V. ‘#51’-.=:~ the owner of a plot of 23 hectares
of land. The owners of a property
” 2;djée:,~<::ng't¢ the land, Mnand Mrsfisraham ("the
occupied the land under a gazing
"agieemcnt. Afier a brief exchange of documents
A I in December 1983 a chartcntd smvcyor acting
for the agaplicants wrote to the Gzahams noting
that the grazing agreemeazvgwas about to expire
and requiring them to vacate the land."
(me.
f5_,_ pk/b.~..,;£fl\ , ecasée;'£snpra)= V the appiicants moved the
Cgsmmission of Human Rights (ECHR)
fliéit the United Kingdom law on advemc
by which they lost land jg a
28. The court expnessed its astomahmefiflt A’
the prevalent iaw ousting an owner iizzf .«1:_nef”
taking action Within iimitatlcm is” ‘
29. The applicant : ‘A
said judgment filed an”aj3peal and the 9;
Appeal reversed the demeiufi. . ‘§’he
Grahams then Bimfialed ” 2 Seuss’ ‘df~Lm9r;1s,
Which, allowed . a;;p;;:a;1 ‘4 the
orderofth¢.Hi€-h§543.1e1_1’t, i =
Pye (Oxford)
Ltd. 1% 1i,Ae,%4’19 observed that
the Grahams
ordinary sense of fzvorfl, the
applicant company of it
Within the of “Li31 1’itavtion Act of
. …..
31. V6’Leeni” to reproduce the
portion of theljildgment in FEcvamma’s
€\}. C £’7\”‘-»-§j\.-“k,”~’ ” -“T;
” .; ‘V 54. qfxesfion nevertheless remains
A ‘ivflietfier, eveximiiéving negani to the lack of care
VA TAa;1c;i’e?:1z#:ive1tence on the part of the applicants
the deprivation of their titie
Aiegistered land and the transfer of
‘T «.._possessioi1 struck a fair balance with any
— iegfixnate public interest sewed.
This Court in Revamma’s ease
mentioned that the Europeajxi
Rights importantly laid do§ir11
test to judge the interfezienee oftlie
with the right of eitjoi éIx1§én1;fl§of
Dmiierty”.
53. In Beyeler vs, of
1996 108-.1’4…was”;fiém that the
the principle
of % 5 Iegifimatc aim
{13tib’1ie :i5′ by reasonably
fiéropnoriieiiafifp sought to be maimed’ .
The
iztveiieficial owzuership to those in unauthofizaed
7’\;’ in 2
£37
in these circumstances, the Court
that the application of the pmvisions of ht”.
and 1980 Acts to deprive the
companies 01″ their title to the :regi$’tereti– ‘V
imposed on them an individual and e:s§fseesi931s ‘ “other.
Theta' violation of Art::c' 16,; H j of the application of Article
43, was V xefeitfie-d_’t1o the ,.-Grand Chamber Hearing
of sets the field of adverse
_; ‘po$sessit511_V_VV3}t1d hits interface with the ugh’ t to
peacefifl enjojfhient in all its complexity.
it will have to he kept in
courts around the World are talcing an
a View towards statutes of hm1’tafioz1
A. , o$”etIidiI1g property rights.”
\. &’L~~<'[«-W
51. In order to defeat the rights of _
of adverse possession, person who
should Plead and establish:- L ‘ : Jj %% V’
1. On what date he came ”
II. What was his natvtme of «
III. Whether factum to other
IV. How
V. vévasgpen and undisturbed?
52:/i’1’1e IVawLi sa settled that defendant must
plead Varuxd not the corpus possidendi but also
person setting up title by adveme
plead and establish both corpus
poéeiiendi fiossidendi. He must estabtish that
open and hostile and adverse to the interest
to his kncswledge.
‘ “In the case on hand, I have extracted the averments of
” etatement relating to plea of adverse possessicn. As
‘ already stated, animus possidendi is the main ingedient of
5<\«'.
49
adverse possessakm. The defendant has pleaded thfit’ _
had acquired prescription of right to suit dd ” 2
by Way of adverse possession.
53. Animus is a state What wad in d’ V
the mind of the Wife qf. defe;;d.dI)i._
through the defendant; tlle. it is I19
where stated that the the suit
schedule adverse to the
iI1tCI’CSt{i'{‘3″f: and plaintifi’. The
alleged ad’vere~eV hot examined before the Court
be1oW.AvTheIefcie,d piea of-ad§}.erse possession as set out in the
statement it could hardly be construed
‘ Va’ ‘ind’ adverse possession.
defendant has alleged that deceased
.4 M ” had delivered possession of suit schedule
V to the wife of defendant in part performance of
ofsale dated 10.10.1976. The defendmzt has also”
‘A ” ” Vrelied on Genera! Power of Attorney dated 08.08.1988 and
afidavit dated 08.08.1988, sad to have been executed by
av 9″
property under agreement of sale:
Atmmey 08.08.1988, it is clearly stated that as on
Ij98t§,’v…25’\.M1nfiswamappa was in possession of suit
d wfiédduze dgéroperty.
‘ answefing points I 85 2, I have concurreezi with
findings recorded by the trial Com’: that defendant has
deceased Muniswamappa in favour of the
In the afidavit said to have been e;:§eet1’tcri_
Muniswamappa, it is stated that as
Muniswamappa was in pf sditw ‘V
and he delivered possessign oféesutt. to the
wife of defendant on inefimted in the
year 1939. In ages; I mrcmnlac to
agmement possession
sought documents apwt fiom
being gs? untenable. The alleged
adverse poseeseer–y§}ife was not exmincd
before pdove that the brother of plaintiff
datedE(}.V1AU;:v1’9?f6V..nf§)fii the other hand, in the General Power
62. During pendency of this; egppealg.’ “~
filed an application under Order ‘.1t}A..(V:-‘§43tE’3V::£’.:I_()1’i;.V’._–,”‘
with 27 documents. From hens a
sought to establish that suit
by Eangaiore Developmefit. the 1975.
These documents the following
reasons:–
In the no plea to the efiect
that wékgaequned by B.D.A. in the
year are accepted on their
face jvaitxeg db any way establish the pica of
V’ . ad§;e;SeA”‘,;.:os$essiei1″put forth by the defendant. On the other
are contrary to the case of defendant.
v.’Fhe has produced copy of gazette
udateds08.04.197S to shew that City Improvement
notice under section 16(1) of the City of
improvement Act, 1945 (Mysore Act V of 1945) to
a part of survey No.8/4. It is the ease of defendant
tltat in furtherance of agreement dated 10.lO.i9’.76, the Wife
g\»3 Cg L ,
‘V Counsel for defendant relying on the
Court, reported in AIR 1970 so 1773
(in of State of West Bengal Vs. The Dalhousie
V’ ~ Society), has contended even if passession of suit
‘ property to the wife of defendant is held to be
” ilnéer an invalid agreement, such possession assumes the
of defendant was put in possession by
Muniswamappa. If suit schedule pmperty had
by C’..I.’F.B. (now B.I).A.) in the year .e
defendant could not have derived
property on 10.10. 1976. The {est
acquisition of part of sm”veyV of and
award made in respect “ul:’he has not
pleaded that suit schedele by C.i.’E’.B.
{now E¥.VI).._A_.)”‘ 1j97s;.ss%rj-K7′ defendant by relying on
these that the wife of defendant
had laef’ schedule property by adverse
possessian.
chamcter of adverse possession. 3V _ ‘x ,,,,, ,,{‘«/»\.-4.,»-C[\_;” 3
64. Afiaer going through the above judgnentf ‘
in the aforesaid case ce:rm1n’ lands K ‘
Institute Society. However, there ‘Wen 3;} 1. j
irneguiarities in the matter of of }.’¥.\’neis.. toé
gant of Dalhoumie as the
owner of said am: not oixigrzizyifiele Qotyxnafionnilbat
also by the Gove:mr1enfi:.”* 1:1 ” jecognition m’
ewnezslxip, tirn: ‘ ‘I5zali1o11sie Enstritttlte
society is
In deceased Muniswamappa
nor of defendant as the owner
‘~ of eiiit» property. Therefore, what has
V *–.bee1i’ held, ii:1 decision is not appiicable to thecase
o1ih’.a:1d..v A V. H
x j 6E;>;v._§i1 View of the foregoing discussion and far the
« stated heminbcfore, I hold that-
I. there is no specific plea of adverse possession
ii. the alieged adverse possessor was not examined
before trial Court.
failed,’ _to.VA_p:ov§”*–ti;at his wife N had pcrfnctcd her
ncgativc.
R. fig: Point No.4»:
EH. The defendant having pleaded that ”
in possession of suit schedule H
agxeemcnt of sale
miserably failed :9. _p1t:x;ft:..Ab:1i.’t1&_t:.’..
delivery of posscssiofi%./Ligindcréaaid
IV. General ‘_ of-.§atcAfi “03~;($3.198s
stated to by deceased
proved by
would rcvcai that
_:§{é dgnfifised Muniswamappa was
Sziit schedule property.
“In ‘~ci:§_§:g1r.1stanccs, defendant has misexably
property by adverse possession.
67_. En View of the above discussions, I answer point
68. The: learned trial Judge relying on a stray sentence
in the evidence of plaintifi has held that has
N tax./'((7
_ house} a
H “veaiinoi ~bveg_iseIated out of context The alleged admission
in page 14 of the mess-examination of plaintifl reads
admitted possession of suit schedule property by lime’
defendant {mm the year 1976. _
It is seen from the evideizee of ..
examined on several dates
13.09.1995, 2I.1I.199S:*’ai1d th1fi’e1igh””eut, the
plaintiff has consistently defendant is
in possession of year I9′?’6.
The learned sentence found
in the ‘1:ag…e1:§e1c1 that plaintifi” has
adII1ittec:i.._Ath;at is in possession of suit
schedule ” ‘year 1976 by constructing a
V “It. is. to state that evidence has to be read in
‘ cider to appreciate evidenceia stray sentence
“It is not correct to suggest that my
brother has entered into an agreement of sale
ax} _ 1¢’«\,,x-‘–CL’.
the evtgiettce has isolated a siray sentence to
of defendant has perfected her title to suit
is seen fiom e1oss~exaz:nination of defendant, he
a categorical admission to the efiect “I have no
to show that I am residing in the suit schedule
fp:rope11,y since 1976,» av’ C
with the defendant’s wife in the year 1976. The
defendants are in possession of the property _V
from the year 1976 after constructing a house; ~
is not correct to suggest that my bmthee V’
executed a General Power of Vfittorney’ V
Affidavit after receiving balance It ‘, J 1:’
is not correct to suggest that “a:*e* Vt
enjoying the suit
since 1976.” t
69. After going th1offl1gVlé,’iIie.ei1;tire’&’evVzt;ee+<j;§cami11ation of
plaintiff, 1 end ':the§it" ':f3ia::'n" "cqnsiszenuy denied' that
defendant' 'This in of suit schedule
propen:}r;"'-.I§v'et1 "p3:r1';3"' . H cted above, them is demo' I
to said efi'eet;;–._V;l'heV Judge Without appzeciating
sehecmle shy adveme possession.
V poss§g§§end.i épossidendi. T he learned trial judge
an adverse infezence for non-
Wife of defendant The learxzed trial judge
L by X mung that elder brother of plaintifi”
4″-._V:(r3.eeeased…AéMuniswamappa) had failed to pmve that duxing
:%’§9a3″-$4 defendant was permitted to occupy suit
‘ eefiedtlle pmrperty on leave and licence bassist, has helci that
the wife of defendant had perfected title by adverse
7″}. The leamed tiiai Judge has A’
admission. Therefore, the learned Llhae’ b
errcneously appreciated the evidence ve
finding of adverse possession favou rQf’defende;11f§ ” ” V
72. The learned eedsions
dealing with the sett1edV;’>eE:i1eAi;;1ef.’ to adverse
possession. The if/8I116d:13i’§.’E.!.1 notice that
plea of adverse Vie statement is
devaid of plea of adverse
possessii-;n:a.._ juéige has fiailed to notice that
defe11da11t bade zgeithesrj §1§3a_«_;i§:& nior established the corpus
W’ (ggi/1.-‘\–«—3/’L”\,/”~J»’.
possession. The learned trial judge has failed i” ‘
various documents relied upon b3:”defe1;;da.n:. _
suficient to pmve the actual, co11’tizii:.1c_3t:i–:-*._i
possessien of suit schedule ii
of deceased Muniswamappa or 2.
73. In a decision 330 (in the
case of SAROOP B1§m;;¢hss;gpmc Court has
held:– ii is 2 A
“”” starting point of
liriajtaitiozz Vdees_’dnQf~s._ebz1;1n1ence fimn the date
whei1._Lti3ee 1ighf.iA’of:'””‘—gifivinership arises to the
” ieommeiaces from the date the
_” ‘i¥efe1idant’s f,i0s._….s¢3.-,.s’sio11 becomes adverse.”
V vifsépreme Court in a decision reported in
(20029 3 ,«.;o:,€.ii.1i1i4 (in the ease ofMZDumr’ vs. Mama 85 0:3.)
.x ‘ ‘ ‘ jv ‘ ~ _ ‘_ih:w1s held:—V ii’
i 44 “In terms of Articles 142 and 144 of the
old Limitation Act, the plaintiff was bound to
prove his title as also possession within twelve
years preceding the date of institution of the suit
under the Limitation Act, 1963, once the
g\; V xx. pa » “Ci/\._ .\
V’ Mufiédrmnappa) the defendant to occupy the
on leave and licence basis, therefore,
‘ete suit property by adverse possession is opposed
established by evidence on Ieoord andksettled
title the burden would shift 1:0 the defendant
that he has perfected his title by adverse dd
titie of plainfifl to the suit SChCdul6::.J13;I;(§I.§€11p\g”«iS
defendant The learned trial judge xeee-failed V’
title of plaintiff was never Vddidddhmedhvh sthe ‘V
defendant. The defendan~i;V.&haseve eepmved iiiaeizis wife
has been in possesesion and such
possession waevvdvor title and the
same was of deceased
Muniswamagfiaeydnhd A’
75.d”*;f1ee by the ieameti trial judge
when hais his elder bmther (deceased
it iseebe that wife of defendant has perfected title
,1 /_),\
.
§1Che1ii§;:1eE1§§mpert)r” plaintifl within unee months fium
k*¢fléy.
principles of law relating to adverse posscss4joj::i}’~…V § ‘I’h{f:*xv:.:forifi;’ -A .V
the impugcd judgment and V . {
77. In the result, Ipass . ‘
I’
The appeal aOCAtA:p'{;;}’d _V and decree
dated 12.03.1999’j.géisse(§._ ixr:t:3.;’:S.1’fEz§:;?I’t’£VZ6¢’3,lwi989 on the file of
V Add}. City set aids. The suit in
o.s.No.-j;26″3/ costs. The legal
I’cp1’escn:fiaIi;J:;:sVof dcfendarxt (R-1(a) ta R-1(a) in
this appeal) quit é:ad”‘t’.’iclivnr vacmt posscssirm of suit
Séf
Eudge