JUDGMENT
1. One Nanjundaiah filed a suit in O.S, No. 58/78 before the Civil Judge, Tiptur, for declaration of title over the suit properties and permanent injunction restraining defendants Nos. 1 to 3 from interfering with his peaceful possession of the suit land. The suit was decreed by the learned Civil Judge, Tiptur, on. 30-1-1982. Defendants Nos. 2 and 3 challenged this judgment befpre the learned District Judge, Tumkur, in R.A. No. 4/82 and the learned District Judge dismissed the appeal by his judgment dated 5-11-1962. Aggrieved by this judgment, defendants Nos. 2 and 3 have come up with this Second Appeal.
2. During the pendency of this appeal, Nanjundaiah, the plaintiff died and his wife and Krishna Gowda were brought On record as legal representatives of Nanjundaiah. The case of the plaintiff was, that the suit schedule property belonged to one Dasaru Chikkanna, that he purchased the same by a regsitered sale deed dated 9-11-1955 in the name of the first defendant his brother-in-law, and that he has been in possession of the same by paying land revenue and improvinng the land. His alternative case was that he had perfected his title by adverse possession, having been in enjoyment of the same since 9-11-1955. He contended that defendant No. 1 was not the real owner and he, with the assistance of defendants Nos. 2 and 3 is interfering with his peaceful possession of the suit land. The first defendant has remained ex parte and defendants Nos. 2 and 3 contend that the first defendant is the real owner and that the plaintiff has not perfected his title by adverse possession. They also contend that 2 acres 38 guntas of the suit land was purchased by defendant No. 2 and the remaining one acre of the suit land was purchased by defendant No. 3 from defendant No. 1 under two registered sale deeds dated 14-9-1977. The trial Court framed the following five issues :
1. Whether the plaintiff prove that he purchased the suit land under the sale deed dated 9-1l-1955 benami in the name of the 1st defendant?
2. Whether the plaintiff proves that he has perfected his title to the suit land by adverse possession?
3. Whether the plaintiff proves that he is the lawful owner of the suit land on the date of suit?
4. Whether defendants 2 and 3 prove that they are bona fide purchasers for value for the suit land?
5. Whether plaintiff is entitled to the relief
sought for?
3. After trial, the learned Civil Judge answered issue No. 1 in the negative, issues Nos. 2 and 3 in favour of the plaintiff and held on issue No. 4 that defendants Nos. 2 and 3 are not bona fide purchasers ior value. Consequently, the suit was decreed.
4. The learned District Judge in appeal has concurred with the findings of the trial Court, The plea of benami put forth by the plaintiff has been negatived by both the Courts on facts and it is not disputed before me that this plea is no longer available for the plaintiff in view of the provisions of Section 4 of the Benami Transactions (Prohibition) Act, 1988.
5. Following points have been formulated at the time of admission of this appeal :
1. Is the Appellate Court justified in drawing a presumption in favour of the plaintiff under Sec. 114 of the Evidence Act having regard to the facts and circumstances of the case?
2. Is the Appellate Court justified in holding that the plaintiff had perfected his title by adverse possession when no documents were produced to establish continuous possession of the plaintiff for the statutory period?
3. Is the Appellate Court justified in holding that the pleas of the plaintiff regarding title — one on the basis of benami transaction and another o(SIC) the plea of adverse possession — are not mutually destructive?
6. It is true that no document prior to the year 1967-68 was produced by the plaintiff to prove his case of possession. But the District Judge relying on a decision of the Hon’ble Supreme Court in Ambika Prasad Thakur v. Ram Ekbal Rai (dead) by his Legal Representatives, AIR 1966 SC 605, held that the presumption may be drawn both backwards and forwards, depending upon the nature of the thing and the surrounding circumstance’s and has upheld the contention of the plaintiff that he has been in possession of the suit lands on the basis of the documentary and oral evidence produced by the parties. He also took note of the fact that defendants did not produce any documents in support of their case that they were in possession. Therefore, it cannot be said that the learned District Judge committed any mistake in applying the ratio laid down by the Supreme Court in AIR 1966 SC 605. Therefore, the first two substantial questions of law framed at the time of admission are answered against appellants.
7. Sri M. S. Gopal, learned Advocate for the appellants, next contends that the Courts below were not justified in upholding the plea of adverse possession of the plaintiff as the plea of benami transaction and adverse possession is mutually destructive and cannot be accepted.
8. In para No. 2 of the plaint, it is averred that the plaintiff purchased the property on 9-11-1955 from one Dasaru Chikkannain the name of the first defendant as benami and that the plaintiff is the real owner. It is also contended by him in the said para that he has been in possession and enjoyment of the suit schedule property in his own right by paying land revenue and improving the land by spending heavy amount. In para No. 4 of the plaint however he states as follows :
“Even otherwise the plaintiff has perfected his title by law of adverse possession by enjoying the plaint schedule property for more than 12 years openly continuously without any obstructions adverse to the interest of defendant if any since 9-11-1955.”
9. According to Sri M. S. Gopal, the Courts below could not have accepted alternative plea of the plaintiff. His contention is that the plea of adverse possession put forth in this case assumes importance in the light of the ingredients that are required to constitute adverse possession. In order to perfect title by adverse possession two inseparable ingredients are necessary. They are :
(1) Corpus Possidendi (Physical possession) and
(2) Animus Possidendi (Intention to exclude the advcrsory from possession).
The possession must also be adequate continuity and publicity.
10. The main contention of the plaintiff is that he became the real owner of the property on 9-11-1955, that defendant No. 1 had no title over the property and that he was a mere name lender. The appellants defendants, therefore contend that it is not open to the plaintiff to plead even alternatively that he began to hold the suit property adverse to defendant No. 1 from 9-11-1955 itself without conceding that defendnt No. 1 is the real owner. Sri M. S. Gopal, learned Advocate for the appellants, contends that these two kinds of state of mind cannot appear at the same time from the same date. It is also contended by him that it is not possible to visualise a situation of a person holding the property as a real owner and also holding it with an intention to deny the title of somebody else at the same time from the same date.
11. Sri C. B. Srinivasan, learned Advocate representing Krishnc Gowda, who has been impleadcd at his instance as a legal representative of the deceased plaintiff, contends that he has not set up any adverse title against the real owner, but only against the ostensible owner, namely defendant No. 1. But an ostensible ownership is no ownership at all. It is not possible to perfect the title of the property by being in hostile possession against a name lender or an ostensible owner. In the instant case, the very case of the plaintiff is that he became the owner on 9-11-1955. It is not his case that he had developed a hostile attitude subsequent to 9-11-1955 against defendant No. 1. On the contrary, he contends that he had these two animus, namely,
(1) to hold the property as a real owner and
(2) to hold the property to the exclusion of defendant No. 1, the real owner from 9-11-1955.
It is not possible for the plaintiff to develop adverse animus against defendant No. 1 unless he dislodges from his mind that he is the real owner.
12. In Danappa Rcvappa Kolli v. Gurupadappa Mallappa Patanashetti, ILR (1990) 1 Kant 610, this Court came to the conclusion that the possession of a person bona fide believing that the property belongs to him cannot be considered to be adverse. In that case plaintiff contended that he was the owner of the suit property and alternatively pleaded adverse possession. If really the plaintiff was under the impression that he became the owner on 9-11-1955, there was no possibility of his having animus against the real owner of anybody else from that date. If he had held the property as a real owner on 9-11-1955, it should be presumed that he held the property thereafter also with the same intention unless he pleads and proves that he changed his mind subsequently. Further the plaintiff led evidence to establish his both pleas of Renami and Adverse possession. Since the acceptance of the plea of adverse possession has serious consequence of the real owner losing his title over the property, a clear case will have to be made out and any half hearted attempt in this regard should be discouraged. It cannot be believed that the plaintiff had in his mind that somebody else was the owner of the property on 9-11-1955, as his main case is that he himself became the owner on that day and was in possession of the same thereafter. Mere possession over a statutory period is not sufficient to succeed in a plea of adverse possession unless it is accompanied by adverse animus.
13. Sri Srinivasan, learned Advocate for the respondents, also relied on the following passage quoted with the approval of Supreme Court in the case of Nair Service Society Ltd. v. K. C. Alexander :
“It cannot be disputed that a person in possession ofland in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisins of the statute of limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title.”
This observation was made in a case where the plaintiff had filed a suit relying on Section 9 of the Specific Relief Act on the basis of his possession. The effect of mutually destructive pleadings which had direct nexus with the animus of the person possessing the land was not considered in that case. The alternate plea of adverse possession set up by the plaintiff cannot, therefore, be accepted and this aspect of the case has escaped the attention of Courts below.
14. Hence, the judgments and decrees of both the Courts are set aside and the appeal is allowed. No costs.
15. Appeal allowed.