MALLIKARJUNAIAH versus NANJAIAH & ORS. on 26 April 2019

MALLIKARJUNAIAH

v.

NANJAIAH & ORS.

(Civil Appeal No.7768 of 2011)

APRIL 26, 2019

[ABHAY MANOHAR SAPRE ANDDINESH MAHESHWARI, JJ.]

Suit – Declaration of title – According to the appellant-plaintiff, the suit land fell to his share after the death of his fatherby a partition amongst his brothers – In 1983, appellant noticedthat the suit land i.e. 1 Gunta in Sy. No. 17/3 was encroached uponby the respondents-defendants – In 1992, appellant filed suit againstthe respondents for declaration of his ownership over the entireland including the suit land – Trial court and the First AppellateCourt held that respondents had perfected their title by adversepossession – In the second appeal, the High Court declaredrespondents to be the owner of the suit land by virtue of their adversepossession – On appeal, held: Respondents had admitted theownership of the appellant over the entire land including the suitland by setting up the plea of adverse possession over it –Respondents failed to prove their adverse possession as there wasno element of either adversity or/and hostility between two co-owners/brothers because in a dispute of this nature where both theparties are related, possession of one is regarded as possession ofother unless the facts show otherwise – Also, there was noknowledge of actual measurements of the suit land prior to the year1983 – Plea of adverse possession was also not available to therespondents as suit was filed well within 12 years from the date ofknowledge of adverse possession and 12 years had not completedby then – The Courts below were not justified in declaring therespondents to be the owner of the encroached portion of the suitland by virtue of adverse possession – Judgment of the High Courtset aside – Thus, appellant-plaintiff’s suit decreed in its entiretyagainst the respondents-defendants – Respondents to vacate theencroached portion (1 Gunta in Sy.No. 17/3) and hand over itspossession to the appellant.

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[2019] 6 S.C.R.

AAllowing the appeal, the Court

HELD: 1. Keeping in view the law relating to the adversepossession, when the facts of the instant case are examined, thereis no hesitation in holding that the Courts below were not justifiedin holding that the defendants have perfected their title over theBsuit land qua the plaintiff by virtue of their adverse possessionover the suit land. This is said for the following reasons.

[Para 21][1079-C-D]

2. First, it is not in dispute that the appellant(plaintiff) wasthe owner of the entire land including the suit land, i.e., encroachedCportion, which was alleged to be in possession of therespondents(defendants). In other words, therespondents(defendants) have admitted the ownership of theappellant(plaintiff) over the entire land including the suit land bysetting up the plea of adverse possession over it; Second, theburden to prove the adverse possession was on theDrespondents(defendants) because it was they who had set up thisplea; Third, the respondents(defendants), failed to discharge thisburden; Fourth, there was no element of either adversity or/andhostility between two co-owners/brothers because in a disputeof this nature where both the parties are related to each other,Ethe possession of one is regarded to be the possession of otherunless the facts show otherwise; Fifth, therespondents(defendants) failed to adduce any evidence to provethat they were asserting their right of ownership over the entireland or the suit land or its part openly and to the knowledge ofthe appellant(plaintiff) continuously for a period of more than 12Fyears; Sixth, it is a settled principle of law that mere continuouspossession howsoever long it may have been qua its true owneris not enough to sustain the plea of adverse possession unless itis further proved that such possession was open, hostile,exclusive and with the assertion of ownership right over theGproperty to the knowledge of its true owner. Such is not the casehere. Seventh, this was a case where both the parties were notaware 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 H

did not know as to how much land was in the exclusive possessionof the appellant (plaintiff) and how much land was in possessionof the respondents(defendants). It was only when theappellant(plaintiff) got the suit land measured through the revenuedepartment in the year 1983, he came to know that some portionof the land, which had fallen to his share was in possession of therespondents(defendants). [Para 22][1079-E-H; 1080-A-C]

3. The appellant(plaintiff) having come to know that therespondents(defendants) had encroached upon his land in theyear 1983 and he rightly filed the suit within 12 years from thedate of knowledge, a plea of adverse possession was not availableto the respondents(defendants) against the appellant(plaintiff)because 12 years had not been completed by then. In this view ofthe matter, the question of respondents(defendants) perfectingtheir title by adverse possession over the suit land did not arise.As mentioned, even if the respondents(defendants) claimed tobe in possession over the suit land prior to the year 1983, thesame was of no consequence for the simple reason that suchpossession was neither exclusive nor hostile and nor it was tothe knowledge of the parties for want of actual measurements.[Paras 24, 25][1080-E-G]

4. It is for all these reasons, this Court is of the consideredview that the Courts below were not justified in declaring therespondents(defendants) to be the owner of the encroachedportion of the suit land by virtue of adverse possession. Thisfinding being against the settled principle of law deserves to beset aside. [Para 26][1080-H; 1082-A]

T. Anjanappa & Ors. v. Somalingappa & Anr.(2006) 7 SCC 570 : [2006] 5 Suppl. SCR 200 ; ChattiKonati Rao & Ors. v. Palle Venkata Subba Rao, (2010)14 SCC 316 : [2010] 15 SCR 923 – relied on.

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[2019] 6 S.C.R.

ACIVIL APPELLATE JURISDICTION: Civil Appeal No. 7768of 2011

From the Judgment and Order dated 14.11.2007 of the High Courtof Karnataka at Bangalore in RSA No. 23 of 2005.

Rajesh Mahale, Krutin R. Joshi, Advs. for the Appellant.B

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J.

1. This appeal is directed against the final judgment and orderdated 14.11.2007 passed by the High Court of Karnataka at BangaloreCin RSA No. 23 of 2005 whereby the High Court partly allowed the appeal filed by the appellant herein.

2. A few facts need mention hereinbelow for the disposal of thisappeal.

3. The appellant is the plaintiff and the respondents are theDdefendants of the civil suit out of which this appeal arises.

4. The civil suit leading to this appeal was filed by theappellant(plaintiff) seeking declaration of his title in relation to theproperties described in Schedule ‘A’ attached to the plaint, being theland admeasuring 20 Guntas in Sy. No.17/3; western portion of 32 ½EGuntas in Sy.No.29/1; and 11 Guntas in Sy. No.34/3, all situated atKaragund Village, Javagal Hobli, Arasikere Taluk, Hassan District,Karnataka. Out of the aforesaid land, 1 Gunta of land in Sy. No.17/3and a portion of Sy. No.29/1 were mentioned in Schedule ‘B’ to theplaint and perpetual injunction was sought in that regard.

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5. The other particulars of the property described in the plaintneed not be elaborated for the reason that now the dispute in theseproceedings is confined to the part of the aforementioned landadmeasuring 1 Gunta in Sy. No.17/3 (hereinafter referred to as “the suitland”).

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6. According to the appellant (plaintiff), the entire land mentionedabove, which also included the suit land, fell to his share in the year 1980after 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.

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7. The appellant, therefore, made an application to the surveydepartment to get the land measured. On measurement, it was noticedthat the defendants had encroached upon the portion of the appellant’sshare to the extent of 1 Gunta of Sy. No. 17/3.

8. The matter was accordingly resolved with the intervention oflocal Panchayat and pursuant thereto, the defendants restored thepossession of the encroached portion of the suit land to the appellant.

9. Thereafter the appellant filed a civil suit in the year 1992 againstthe respondents for declaration of his ownership right over the entireland including the suit land and for grant of permanent injunction in relationto the suit land. In the alternative, the appellant also sought the relief ofpossession of the suit land in case, he is held to be not in possession ofthe suit land.

10. The respondents, in substance, defended their possession overthe suit land and alleged that they have perfected their ownership titleover the suit land on the basis of their adverse possession over the suitland for a long period of time.

11. The Trial Court, while partly decreeing the suit, by judgmentand decree dated 14.01.1999, declared the appellant(plaintiff) as theowner of larger part of Schedule ‘A’ property but observed that thedefendants had perfected their title by adverse possession over 1 Guntaof land in Sy. No.17/3 and, therefore, the prayer seeking permanentinjunction against the defendants as regards Schedule ‘B’ property wasrejected.

12. The appellant (plaintiff) felt aggrieved and filed first appealbefore the first Appellate Court. The respondents (defendants) filed theircross objections. By order dated 10.09.2004 in R.A. No.11 of 1999, thefirst Appellate Court, in substance, upheld all the findings of the TrialCourt but modified the decree to some extent regarding the measurementof the suit land.

13. The appellant (plaintiff) felt aggrieved and filed second appealin the High Court of Karnataka. By impugned judgment, the High Courtpartly allowed the appeal and declared the appellant (plaintiff) to be theowner in respect of the land admeasuring 19 Guntas in Sy. No. 17/3 and11 Guntas in Sy. No. 34/3 but dismissed his claim as being the owner ofthe suit land admeasuring 1 Gunta in Sy. No. 17/3 and instead declared A

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Athe defendants to be its owner by virtue of their adverse possession overthe 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 inthis Court B

15. So, the short question, which arises for consideration in thisappeal, is whether the High Court was justified in holding that thedefendants (respondents) have become the owner of the suit land to theextent of 1 Gunta in Sy. No. 17/3 by virtue of their adverse possessionover it.

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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 onperusal of the record of the case, we are constrained to allow this appealand set aside the impugned judgment to the extent it declares theDdefendants (respondents) as being the owner of the suit land admeasuring1 Gunta in Sy. No. 17/3 and, in consequence, decreeing the plaintiff’ssuit in relation to the suit land against the defendants.

18. What is “adverse possession” and on whom the burden ofproof lies and what should be the approach of the Courts while dealingEwith such plea have been the subject-matter of a large number of casesof this Court.

19. In T. Anjanappa & Ors. vs. Somalingappa & Anr., (2006)7 SCC 570, this Court held that mere possession, howsoever long it maybe, does not necessarily mean that it is adverse to the true owner andFthe classical requirement of acquisition of title by adverse possession isthat such possessions are in denial of the true owners’ title.

20. Relying upon the aforesaid decision, this Court again in ChattiKonati Rao & Ors. vs. Palle Venkata Subba Rao, (2010) 14 SCC316 in para 14 held as under:

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“14. In view of the several authorities of this Court, fewwhereof have been referred above, what can safely be saidis that mere possession however long does not necessarilymean that it is adverse to the true owner. It means hostilepossession which is expressly or impliedly in denial of the H

title of the true owner and in order to constitute adversepossession the possession must be adequate in continuity,in publicity and in extent so as to show that it is adverse tothe true owner. The possession must be open and hostileenough so that it is known by the parties interested in theproperty. The plaintiff is bound to prove his title as alsopossession within twelve years and once the plaintiff proveshis title, the burden shifts on the defendant to establishthat he has perfected his title by adverse possession. Claimby adverse possession has two basic elements i.e. thepossession of the defendant should be adverse to theplaintiff and the defendant must continue to remain inpossession for a period of twelve years thereafter.”

21. Keeping in view the law relating to the adverse possessionquoted above, when we examine the case at hand, we have no hesitationin holding that the Courts below were not justified in holding that thedefendants have perfected their title over the suit land qua the plaintiffby virtue of their adverse possession over the suit land. This we say forthe following reasons.

22. First, it is not in dispute that the appellant(plaintiff) was theowner 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 ownershipof the appellant(plaintiff) over the entire land including the suit land bysetting up the plea of adverse possession over it; Second, the burden toprove the adverse possession was on the respondents(defendants)because it was they who had set up this plea; Third, therespondents(defendants), in our view, failed to discharge this burden;Fourth, there was no element of either adversity or/and hostility betweentwo co-owners/brothers because in a dispute of this nature where boththe parties are related to each other, the possession of one is regarded tobe the possession of other unless the facts show otherwise; Fifth, therespondents(defendants) failed to adduce any evidence to prove thatthey were asserting their right of ownership over the entire land or thesuit 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 settledprinciple of law that mere continuous possession howsoever long it mayhave been qua its true owner is not enough to sustain the plea of adverse AB

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Apossession unless it is further proved that such possession was open,hostile, exclusive and with the assertion of ownership right over theproperty 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 tohow 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 howBmuch land was in the exclusive possession of the appellant (plaintiff)and how much land was in possession of the respondents(defendants).It was only when the appellant(plaintiff) got the suit land measured throughthe revenue department in the year 1983, he came to know that someportion of the land, which had fallen to his share was in possession of theCrespondents(defendants).

23. Thereafter the appellant(plaintiff) filed a suit in the year 1992against the respondents(defendants) for declaration and injunction andin the alternative also claimed possession of the suit land. The suit was,therefore, filed well within the period of 12 years from the date ofDknowledge, i.e., in the year 1983. During this period also, there was noevidence adduced by the defendants to prove that they ever assertedtheir right of ownership over the specific portion of the suit land asbelonging to them openly and with assertion of hostility to the knowledgeof appellant(plaintiff).

E24. In our view, the appellant(plaintiff) having come to know thatthe respondents(defendants) had encroached upon his land in the year1983 and he rightly filed the suit within 12 years from the date ofknowledge, a plea of adverse possession was not available to therespondents(defendants) against the appellant(plaintiff) because 12 yearshad not been completed by then.F

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25. In this view of the matter, the question ofrespondents(defendants) perfecting their title by adverse possession overthe suit land did not arise. As mentioned above, even if therespondents(defendants) claimed to be in possession over the suit landprior to the year 1983, the same was of no consequence for the simpleGreason that such possession was neither exclusive nor hostile and nor itwas to the knowledge of the parties for want of actual measurements.

26. It is for all these reasons, we are of the considered view thatthe Courts below were not justified in declaring therespondents(defendants) to be the owner of the encroached portion of H

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 andis accordingly allowed. The impugned judgment is set aside. As aconsequence thereof, the plaintiff’s (appellant’s) suit is decreed in itsentirety against the defendants The defendants(respondents) are grantedthree months’ time to vacate the encroached portion (1 Gunta in Sy. No.17/3) and hand over its possession to the appellant/plaintiff.

Ankit Gyan

Appeal allowed.

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