NARASAMMA & ORS. versus A. KRISHNAPPA (DEAD) THROUGH LRS. on 26 August 2020

[2020] 7 S.C.R. 528

SUPREME COURT REPORTS

[2020] 7 S.C.R.

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NARASAMMA & ORS.

v.

A. KRISHNAPPA (DEAD) THROUGH LRS.

(Civil Appeal No. 2710 of 2010)

AUGUST 26, 2020

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[SANJAY KISHAN KAUL, AJAY RASTOGI ANDANIRUDDHA BOSE, JJ.]

Suit – Possession – Predecessor-in-interest of the respondents(original plaintiff) filed a suit against the predecessor-in-interestof the appellants (original defendant) in respect of a scheduleCproperty – Original plaintiff claimed himself to be the full andabsolute owner of the schedule property and sought directions fordefendant to remove the temporary structure on the scheduleproperty and put the plaintiff in vacant possession of the saidproperty – The suit was resisted by the original defendant and itDwas stated that plaintiff’s brother had executed sale agreement on10.10.1976 in favour of defendant’s wife and she was put inpossession of the schedule property – However, sale deed was notregistered – Defendant also pleaded adverse possession in hiswritten statement – It was also stated that a General Power ofAttorney was executed in favour of defendant’s wife on 08.08.1988

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by plaintiff’s brother – The trial Court held that it was a case ofcontinuous possession since 1976, thus defendant had perfectedtheir title to the schedule property and relief of possession to plaintiffwas declined – However, the judgment of the trial Court also showedinconsistencies in documents i.e. agreement of sale, General PowerFof Attorney, affidavit and deposition of DW-2 – The High Courtdecreed the suit against the heirs of the original defendant, asoriginal defendant expired – On appeal, held: The High Court re-examined in extenso the evidence produced by both the parties andaffirmed the findings arrived at by the trial Court regarding theinconsistencies in the agreement of sale and General Power ofGAttorney – Further, it was also held that the General Power ofAttorney dated 08.08.1988 revealed that plaintiff’s brother was inpossession of property as on 08.08.1988 – As the sale deed wasnot registered and ground taken that there was bar/prohibition ontransfer of land was not proved – There is no reason to disturb the H

concurrent findings of the courts below – Thus, plea of possessedtitle of defendant’s wife was not established on basis of the documentspropounded – As far as alternative plea of adverse possession isconcerned, the claim of title from 1976 and plea of adversepossession also from 1976 cannot simultaneously hold – In orderto establish adverse possession an enquiry is required to be madeinto the starting point of such adverse possession and, thus, whenthe recorded owner got dispossessed would be crucial – In theinstant case, this fact has not been proved – The plea of adversepossession is lacking in all material particulars – The legal positionstands as evolved against the appellants herein in advancing a pleaof title and adverse possession simultaneously and from the samedate – Therefore, appellants directed to hand over vacant andpeaceful possession of the schedule property.

Dismissing the appeal, the Court

Conclusion

Dismissing the appeal, the Court

HELD: 1. It is relevant to note that on the crucial issue ofthe factual matrix regarding the documents and the conclusionto be drawn from them, both the Courts are ad idem. Not onlygrave doubt has been thrown on the story of the appellants herein,but both Courts also record that the documents sought to bepropounded by the appellants, i.e., the Agreement of Sale, thePower of Attorney and the affidavit, have too many discrepanciesto be treated worth their while. This is apart from the fact thatthe non-registration of the title document in favour of defendant’swife-appellant 1 herein, was sought to be explained away on theground of there being a bar/prohibition on transfer of land, whichaspect was however not proved by the appellants by leading anyevidence. There is also adverse comment on the testimony ofthe witnesses, who appeared on behalf of the appellants, more soDW-2, who was alleged to have scribed Exhibits D-1 and D-2. Asnoticed above, the conclusion of the Trial Court was that thiswitness had either forgotten all facts or had given tutored evidenceas he claimed that both Exhibits D-1 and D-2 were prepared onthe same date while the documents were twelve (12) years apart.In fact, the Trial Court has succinctly set out that the treasuryseals were found to be erased and fresh dates affixed on ExhibitD-1, the signature of plaintiff was also found to be erased at aparticular place, as also the fact that his name was traced on in AB

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Athe General Power of Attorney, Exhibit D-2. These findings havebeen categorically affirmed by the High Court, which is the lastcourt on facts. [Para 24][541-B-F]

2. There is no reason to disturb these concurrent findingsof the Courts below, and even if this Court independentlyBexamines the evidence, there is no reason why we would cometo a different conclusion. [Para 25][541-G]

3. The plea of the original defendant that his wife possessedtitle was not established on the basis of the documents sought tobe propounded. It is also relevant that none of the parties choseCto implead her as a party. Once the case of the original defendantwas that it is his wife who had derived title, and alternative pleawas of her adverse possession, then to establish that plea, atleast, she ought to have been examined. [Para 28][542-C-D]

4. This Court may also note that on the one hand, theDappellants herein have sought to take a plea of bar of limitationvis-a-vis the original defendant claiming that possession came tothem in 1976, with the suit being filed in 1989. Yet at the sametime, it is claimed that the wife had title on the basis of thesevery documents. The claim of title from 1976 and the plea ofadverse possession from 1976 cannot simultaneously hold. OnEthe failure to establish the plea of title, it was necessary to proveas to from which date did the possession of the wife of thedefendant amount to a hostile possession in a peaceful, open andcontinuous manner. [Para 29][542-E-F]

5. In order to establish adverse possession an inquiry isFrequired to be made into the starting point of such adversepossession and, thus, when the recorded owner got dispossessedwould be crucial. [Para 34][544-B]

6. In the facts of the present case, this fact has not at allbeen proved. The possession of the wife of the defendant, isGstated to be on account of consideration paid. Assuming that thetransaction did not fructify into a sale deed for whatever reason,still the date when such possession becomes adverse would haveto be set out. Thus, the plea of adverse possession is lacking inall material particulars. [Para 35][544-C]

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7. The possession has to be in public and to the knowledgeof the true owner as adverse, and this is necessary as a plea ofadverse possession seeks to defeat the rights of the true owner.Thus, the law would not be readily accepting of such a case unlessa clear and cogent basis has been made out. [Para 36][544-D]

8. The legal position, thus, stands as evolved against theappellants herein in advancing a plea of title and adversepossession simultaneously and from the same date. [Para 38][544-F]

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Karnataka Board of Wakf v. Government of India &Ors. (2004) 10 SCC 779 : [2004] 1 Suppl. SCR 255;Mohan Lal (Deceased) Thr. LRs. v. Mirza Abdul Gaffar& Anr. (1996) 1 SCC 639 : [1995] 6 Suppl. SCR 638;P.T. Munichikkamma Reddy & Ors. v. Revamma & Ors.(2007) 6 SCC 59 : [2007] 5 SCR 491; M. Siddiq (Dead)Through LRs (Ram Janmabhumi Temple Case) v. MahantSuresh Das & Ors. (2020) 1 SCC 1; Ram Nagina Rai &Anr. v. Deo Kumar Rai (Deceased) by LRs & Anr. (2019)13 SCC 324 – relied on.

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Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors.(2019) 8 SCC 729 – referred to.

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2710of 2010.

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From the Judgment and Order dated 20.03.2009 of the HighCourt of Karnataka at Bangalore in R.F.A. No. 411 of 1999 (DEC).

P. R. Ramasesh, Adv. for the Appellants.

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AMs. Kiran Suri, Sr. Adv., Ashok Bannidinni (for M/s. BannidinniAnd Co.), Advs. for the Respondents.

The Judgment of the Court was delivered by SANJAY KISHAN KAUL, J.

B1. A plaint was laid before the City Civil Judge at Bangalore byA. Krishnappa, predecessor-in-interest of the respondents herein (originalplaintiff) against Sri Jayaram, predecessor-in-interest of the appellantsherein(original defendant) under Order VII Rule 1 of the Code of CivilProcedure, 1908 (hereinafter referred to as the ‘said Code’), being O.S.No.4268/1989 in respect of the schedule property to the plaint beingCdescribed as a portion of property bearing Revenue Site No.9, part ofCorporation No.2, 2[nd]main road, 1[st] block, Goraguntepalya, Bangalore–22 (hereinafter referred to as ‘schedule property’).

2. The original plaintiff stated that he and his late brother, Mr.A. Muniswamappa, were full and absolute owners of agricultural landDmeasuring 2 acres and 22 guntas in Survey No.8/4 of Goraguntepalya,Yeswanthpur Hobli, Bangalore North Taluk. The said land was anancestral property, and in a family partition drawn among the plaintiff’suncles, the plaintiff and his elder brother by a registered Partition Deeddated 29.8.1956, the said land fell to the share of the plaintiff and hisEelder brother, Mr. A. Muniswamappa. In a portion of the said land, thetwo brothers formed a revenue layout and sold the revenue sites todifferent persons, while retaining some of the sites. The area wassubsequently included within the limits of the Corporation of the City ofBangalore (hereinafter referred to as ‘the Corporation’) for whichbetterment charges and other taxes were collected by the Corporation.FMr. A. Muniswamappa passed away on 4.9.1988 and was survived byhis two wives but no children. The wives were stated to be residing inthe residence of the original plaintiff.

3. The original plaintiff stated that the Revenue Sites bearing Nos.8and 9 were assigned as Site No.2 by the Corporation, which collectedGbetterment charges of Rs.4,320/- for both the sites which fell under theaforementioned common Site No. 2. The khata of the property wasmade out in the name of the original plaintiff who paid taxes and, thus,he claimed full and absolute ownership of the revenue site in question,which was being maintained by him as a karta of the joint familycomprising of himself and his late brother, Mr. A. Muniswamappa.H

4. It is the case of the original plaintiff that during the lifetime ofhis late brother, Mr. A. Muniswamappa, the original defendant approachedthem after having resigned from his job in B.H.E.L. to permit him tooccupy the schedule property, to facilitate him to eke out his livelihoodby running a fuel depot. This was acceded to and the portion of the landwas given free of rent to the original defendant on the condition thatwhenever original plaintiff and his elder brother directed the defendantto vacate the schedule property, he would oblige. This arrangement wasaccepted by the original defendant for running a fuel depot as a licensee.This arrangement is stated to have continued till before the plaint wasinstituted, when the original defendant made an attempt to lease out theschedule property. It is conceded that the original defendant was permittedto put a temporary structure for running a fuel depot on the specificcondition that when he was called upon to vacate that land, he wouldremove the structure. In view of the endeavour of the original defendantto induct third parties in the schedule property, the original plaintiff gotissued a legal notice dated 3.7.1989, calling upon him to surrenderpossession and withdrawing permission to occupy the same. There wasno response to the notice, and thus, a suit was laid on these allegationsseeking a decree in the following terms:

“a) The plaintiff is the full and absolute owner of the scheduleproperty;

b) Directing the defendant to remove the temporary structure putup by him on the schedule property and put the plaintiff in vacantpossession of the schedule property;

c) To pay the mesne profits from the date of suit till the deliveryof the possession;

d) To grant such other relief or reliefs as this Hon’ble Court deemsfit to grant under the circumstances of the case; and

e) To award costs of the suit.”

5. The suit was resisted by the original defendant and a differentnarrative was sought to be set out. On the ownership of the property, thesame was denied as the original defendant disclaimed any knowledge ofthe same. It was stated that a notice for payment of betterment chargesand to furnish particulars for the assessment of tax for the building fromthe Corporation were also issued to the wife of the original defendant,Smt. Narasamma (appellant 1 herein). The other averments have been A

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Agenerally denied and the narrative put forth was that the elder brother ofthe original plaintiff, Mr. A. Muniswamappa, sold Revenue Site No.9measuring 30 ft. x 40 ft. to Smt. Narasamma for a consideration ofRs.11,000/-, out of which Rs.8,500/- was paid and the balance ofRs.2,500/- was to be paid upon the execution of the sale deed. A saleagreement was stated to have been executed on 10.10.1976 in favour ofBSmt. Narasamma and she was put in possession of the schedule property.She was also authorized to put up construction on the property and enjoythe said property as owner. The sale deed was, however, not registeredas there was a prohibition on registration of piece lands. Mr. A.Muniswamappa is stated to have relinquished the ownership rights inCfavour of Smt. Narasamma making her the absolute owner of theschedule property. A house was constructed with tiles and asbestos sheets,along with a compound wall around the entire site where she residedalong with family members including the original defendant from 1976.They began to run a fuel depot in a portion of the house from the same year. Some fruit trees were also planted. The averments in respect ofDpossession in para 13 are as under:

“13. …The possession and enjoyment of the above said siteproperty in the occupation of the defendant and his family hasbeen continuous and peaceful since from 10.10.1976 which is thedate of sale in favour of the defendant’s wife. Thus the defendantEhas been in continuous possession and enjoyment of the siteproperty said above for more than 12 years, to the knowledge ofthe plaintiff and other public including the wives of late Sri A.Muniswamappa who are still alive.”

6. The aforesaid portion of the written statement has beenFextracted as this is stated to be the basis of the plea of adverse possession,which was sought to be advanced subsequently.

7. The original defendant has stated that even after a lapse ofmore than ten (10) years, the prohibition for sale of piece land was notlifted, but the balance sum of Rs.2,500/- was received and a GeneralGPower of Attorney was executed in favour of Smt. Narasammaon8.8.1988 by Mr. A. Muniswamappa declaring her right of possessionand enjoyment of the schedule property as owner. An affidavit of thesame date is also stated to have been executed acknowledging the receiptof the entire sale consideration and conferring upon her the right of theHownership of the property. Even thereafter the sale deed was undisputedly not executed and the running of the fuel depot is stated to have beendiscontinued after some years of occupation and a cycle repair shopwas being run thereafter. In para 14 the specific plea of adverse possessionwas raised, which reads as under:

“14. …The defendant also submits that his wife has also got theprescriptive right of ownership over the said site property by wayof adverse possession.”

8. The original defendant also pleads that the area of the siteproperty came to be acquired by the Bangalore Development Authority(hereinafter referred to as ‘B.D.A.’), and an award was passed withthe Award Notice dated 30.10.1981 in respect of the acquisition of theland in Survey No.8/4 issued to the original defendant. Smt. Narasammawas served with a notice dated 8.9.1986 for furnishing the informationto assess the building for property tax as was required under theKarnataka Municipal Corporation Act, 1976, and betterment chargeswere demanded from her when Corporation Site No.2 was allocated,after being renumbered, to comprise of the schedule property. Thebetterment charges are stated to have been tendered by Smt.Narasamma, but the Corporation informed her that the receipt of thesame was stopped and that a fresh notice would be issued for the same.It is the original defendant’s case that Revenue Site No.9 was sold to hiswife which was renumbered as Site No.2 by the Corporation but the suithad been filed in respect of the same property with differentmeasurements and different name of boundaries to confuse the issuesand deny the lawful right of the defendant’s wife. Late Mr.A. Muniswamappa, being the elder brother, was stated to be the head ofhis family during his lifetime and was dealing in selling of sites which fellto the share of the two brothers. This dealing was not objected to byanybody including the original plaintiff. The original plaintiff’s right overthe schedule property is, thus, denied. The allegation of the endeavour tolease it out to a third party has also been denied. It is contested that thesuit is liable to be dismissed with costs.

9. On these pleading of the parties, the following issues wereframed by the Trial Court:

“(1) Whether the plaintiff proves that the valuation made and courtfee paid are proper and correct?

(2) Whether the plaintiff proves description of suit property?

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A(3) Whether the plaintiff proves his title to suit property?

(4) Whether the defendant proves that his wife has perfected titleto suit property by adverse possession as pleaded?

(5) Whether the plaintiff proves that the defendant was permittedto occupy and put up a structure in the suit property as alleged?B(6) Whether the plaintiff is entitled to have possession of suitproperty from the defendant as claimed?

(7) Whether plaintiff proves cause of action for the suit?

(8) Whether the plaintiff is entitled to past and future mesne profitsCfrom the defendant and if so, at what rate and from which date?

(9) To what relief, the parties are entitled?”

10. On trial taking place, the plaintiff appeared as a witness insupport of his claims and exhibited documents, while the defendant alsoappeared along with two other witnesses in support of his case exhibitingDdocuments. The Trial Court by the judgment and decree dated 12.3.1999found Issue Nos.1, 2 and 4 in the affirmative, while the other issueswere found in the negative and it dismissed the suit with costs. A closeexamination of the Trial Court judgment shows that a finding was reachedthat the property in question was joint family property and thus, in anyEcase, late Mr. A. Muniswamappa, in the absence of any partition, couldnot have alienated, at least, the half share of the original plaintiff unlessthere was a family necessity, though he was selling different revenuesites. However, the crucial aspect was that no evidence was producedby the original defendant to substantiate the plea that there was bar onregistration of revenue sites in the year 1976 and thereafter. TheFAgreement of Sale, Exhibit D-1, was closely examined, as also the Powerof Attorney being Exhibit D-2. The inconsistencies and the contradictionsin the deposition of DW-2, one Mariswamy Naik who scribed Exhibit D-1 and Exhibit D-2, and who was closely related to the original defendant,resulted in a finding that these two crucial documents were not proved.GIn fact, the observation on his demeanour was that this witness hadeither forgotten all facts or has given tutored evidence. This finding,inter alia, was based on the deposition of DW-2 that both Exhibits D-1and D-2 were prepared and written by him on the same date, while thetwo documents were dated twelve (12) years apart and Exhibit D-2was not hand written. The treasury seals were found to be erased andH

fresh dates affixed on Exhibit D-1. In this Exhibit, the signature of lateMr. A. Muniswamappa was also found to be erased at a particular place,as also the fact that his signature had been erased and thereafter tracedone in the General Power of Attorney, Exhibit D-2. Moreover, the Notarywas not examined qua the execution of the General Power of Attorneyand the affidavit.

11. On the plea of adverse possession, there is a detailed discussionof the legal position. The khata of the schedule property stood in thename of the original plaintiff. A notice was issued to the wife of theoriginal defendant by the Corporation as an occupier. However, the TrialCourt found that it was a case of continuous possession since 1976 tothe knowledge of the original plaintiff and his brother who never obstructedthe possession of Smt. Narasamma till 1989 and, thus, they could be saidto have perfected their title to the schedule property, their possessionbeing continuous, open, uninterrupted and hostile. Relief of possessionto the original plaintiff was, thus, declined. In view of the finding onadverse possession it was opined that mesne profits were also to bedeclined.

12. An appeal was filed against the aforesaid judgment and decreebefore the High Court of Karnataka at Bangalore, which was registeredas RFA No.411/1999. The appeal was allowed by the impugned judgmentdated 20.3.2009 decreeing the suit with costs against the legal heirs ofthe original defendant (who passed away in the meantime) giving themtime to hand over vacant and peaceful possession of the property withinthree (3) months from the date of the judgment.

13. On the SLP being filed notice was issued and status quo inrelation to possession was directed by the order dated 13.5.2009. On19.3.2010 leave was granted and interim orders were made absolute.

14. The matter was thereafter finally heard only now in 2020, andwe have given our thoughtful consideration to the submissions of thelearned counsel for the appellants herein and learned senior counsel forthe respondent herein (now represented through his LRs as he passedaway on 19.4.2018). We have also examined the records placed beforeus in these proceedings, as also the impugned judgment.

15. The High Court noticed that the plea of the appellants hereinwas that the original plaintiff was not the absolute owner of the scheduleproperty, and that the wife of the original defendant, Smt. Narasamma, AB

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Awas not impleaded and without impleading her as the one who claimedownership, the suit was not maintainable. This plea was negated on theground that both on admission and finding, the original plaintiff anddeceased Mr. A. Muniswamappa were brothers with the latter dyingissueless, and that no partition had taken place during Mr.A. Muniswamappa’s lifetime or thereafter, and the family continued toBstay together. The High Court, as the first appellate court, re-examinedin extenso the evidence produced by both the parties and affirmed thefinding arrived at by the Trial Court that the document Exhibit D-1,Agreement of Sale, contained too many manipulations and alterations tobe treated as a reliable document. The position was the same qua ExhibitCD-2. The affidavit purported to be dated 8.8.1988 was exhibited as ExhibitP-13, but there is no reference to any Agreement of Sale dated 10.10.1976therein. Further, the date of issuance of stamp paper had also beenaltered. The contents of Exhibit P-13 were inconsistent with theAgreement of Sale dated 10.10.1976, as it purported to state that thedeceased Mr. A. Muniswamappa was in possession of the scheduleDproperty on 8.8.1988. Thus, the final court on facts has also disbelievedall these documents.

16. That brought the High Court to the main aspect which resultedin the appeal being allowed, i.e., the failure of the appellants herein ontheir plea of adverse possession. Once again, there is an elaborateEdiscussion on the various judicial pronouncements of this Court on theplea of adverse possession, emphasising that the success of this plearequires the person claiming the same to prove that he is in possessionand that, “his possession is “nec vi, nec clam, nec precario”, that is,peaceful, open and continuous. The possession must be adequate inFcontinuity, in publicity and in extent to show that their possession is adverseto the true owner. It must start with a wrongful dispossession of therightful owner and be actual, visible, exclusive, hostile and continuedover the statutory period.”[1]

17. Accordingly, the findings of the High Court are contained inGpara 65 as under:

“65. In view of the foregoing discussion and for the reasons statedhereinbefore, I hold that:

I.There is no specific plea of adverse possession.

H1 Karnataka Board of Wakf v. Government of India & Ors., (2004) 10 SCC 779, para 11

II. The alleged adverse possessor was not examined before thetrial Court.

III. The defendant having pleaded that his wife was in possessionof suit schedule property under agreement of sale dated 10.10.1976has miserably failed to prove the document and delivery ofpossession under said agreement.

IV. General Power of Attorney dated 8.8.1988 stated to havebeen executed by deceased Muniswamappa had not been provedby defendant. The said document would reveal that as on 8.8.1988,deceased Muniswamappa was in possession of suit scheduleproperty.”

18. In view of the aforesaid, the appeal was allowed as the originaldefendant had failed to prove that his wife, Smt. Narasamma, hadperfected her title to the schedule property by way of adverse possession.

Plea of the Appellants:

19. Learned counsel for the appellants herein sought to contendthat the suit was barred by limitation as the induction of the originaldefendant’s wife was in 1976, while the suit was filed on 9.8.1989, i.e.,beyond the period of twelve (12) years. The genuineness of theAgreement of Sale dated 10.10.1976 was stated not to have beenquestioned, nor was the suit amended to include the prayer for cancellationof this document. Once the Agreement of Sale coupled with the GeneralPower of Attorney has been put on record, the burden to disprove thesame was pleaded to have shifted on to the respondent herein.

20. It was also contended that the schedule property being jointfamily property, the sale by any brother would be binding to the extent ofhalf share and the entire transfer could never have been nullified. Onthe demise of Mr. A. Muniswamappa, the original plaintiff ought to haveimpleaded his two widows as parties to the suit. The finding of the HighCourt on the plea of adverse possession was sought to be assailed onthe ground that the original plaintiff and Mr. A. Muniswamappa did notclaim possession during the latter’s lifetime, which establishes that theyconsidered the possession to be legitimate. It was contended that theappellants herein were well within their rights to set up an alternate pleainconsistent with the main contention of claiming title under a document,as the same was permitted by law, and assistance was sought from thejudgment of this Court in Ravinder Kaur Grewal & Ors. v. Manjit A

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AKaur & Ors.[2]to contend that the perfection of title by way of adversepossession could be a shield available in the defence of the appellantsherein.

Plea of the Respondent:

21. On the other hand, learned senior counsel for the respondentBherein contended that once the original plaintiff had proved the title, theburden would shift upon the original defendant to establish the Agreementof Sale and General Power of Attorney, or for that matter even perfectionof title by adverse possession. There were concurrent findings of boththe courts qua the aspect of the failure of the original defendant to establishCand prove the documents, which would show that there was no Agreementof Sale coupled with possession.

22. It was also submitted that since after the death of Mr. A.Muniswamappa, the original plaintiff was the karta of the family, andwas paying betterment charges as well as tax from 1985 to theDCorporation till the date of the suit. He could also prosecute the suit onbehalf of the family and there was no dispute within the family includingthe wives of late Mr. A. Muniswamappa. On the plea of adversepossession, it was submitted that it was not an alternate plea, but ratheran inconsistent plea, which was not permissible for the appellants hereinto plead so. The judgment in Ravinder Kaur Grewal & Ors.[3]case isEconcerned only with the aspect of whether a person claiming the title byvirtue of adverse possession could file a suit, and the requirement ofpleadings and proof of adverse possession as per settled law have notbeen interfered with. In support of this plea, learned counsel relied uponthe following four judicial pronouncements of this Court:Fi. Karnataka Board of Wakf v. Government of India& Ors.[4]ii. Mohan Lal (Deceased) Thr. LRs. v. Mirza Abdul Gaffar &Anr.[5]

iii. P.T. Munichikkamma Reddy & Ors. v. Revamma& Ors.[6]

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2 (2019) 8 SCC 729

3 (supra)4 (supra)

5 (1996) 1 SCC 639H6 (2007) 6 SCC 59

iv. M. Siddiq (Dead) Through LRs (Ram Janmabhumi TempleCase) v. Mahant Suresh Das& Ors.[7]

Conclusion:

23. We have examined the rival contentions of the parties in theconspectus of the facts set out hereinabove.

24. It is relevant to note that on the crucial issue of the factualmatrix regarding the documents and the conclusion to be drawn fromthem, both the Courts are ad idem. Not only grave doubt has been thrownon the story of the appellants herein, but both Courts also record that thedocuments sought to be propounded by the appellants, i.e., the Agreementof Sale, the Power of Attorney and the affidavit, have too manydiscrepancies to be treated worth their while. This is apart from the factthat the non-registration of the title document in favour ofSmt. Narasamma, appellant 1 herein, was sought to be explained awayon the ground of there being a bar/prohibition on transfer of land, whichaspect was however not proved by the appellants by leading anyevidence. There is also adverse comment on the testimony of thewitnesses, who appeared on behalf of the appellants, more so DW-2,who was alleged to have scribed Exhibits D-1 and D-2. As noticed above,the conclusion of the Trial Court was that this witness had either forgottenall facts or had given tutored evidence as he claimed that both ExhibitsD-1 and D-2 were prepared on the same date while the documentswere twelve (12) years apart. In fact, the Trial Court has succinctly setout that the treasury seals were found to be erased and fresh datesaffixed on Exhibit D-1, the signature of late Mr. A. Muniswamappa wasalso found to be erased at a particular place, as also the fact that hisname was traced on in the General Power of Attorney, Exhibit D-2.These findings have been categorically affirmed by the High Court, whichis the last court on facts.

25. We find no reason to disturb these concurrent findings of theCourts below, and even if we independently examine the evidence, thereis no reason why we would come to a different conclusion.

26. We also note that insofar as the title of the wife of the originaldefendant is concerned, there is no doubt that it was an HUF propertyand was so managed; all technical objections sought to be raised by theappellants herein have been repelled. However, despite this, the only 7 (2020) 1 SCC 1

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Areason for the High Court to reverse the conclusion of the Trial Courtwas that the original defendant had not been able to establish the plea ofadverse possession.

27. If we examine the judgments of the courts below, more so inthe context of the reasons which persuaded the High Court to interfereBwith the conclusions, which are set out in para 65 of the impugnedjudgment and extracted by us in para 17 hereinabove, it is our view thatthe finding that there was no specific plea of adverse possession wouldbe difficult to sustain. We have already stated as to how and in whatmanner this plea has been set out in the written statement and extractedabove. However, that is as far as it goes.C

28. We have already observed, as aforesaid, that the plea of theoriginal defendant that his wife, Smt. Narasamma, possessed title wasnot established on the basis of the documents sought to be propounded.It is also relevant that none of the parties chose to implead her as aparty. Once the case of the original defendant was that it is Smt.DNarasamma who had derived title, and alternative plea was of her adversepossession, then to establish that plea, at least, she ought to have beenexamined.

29. We may also note that on the one hand, the appellants hereinhave sought to take a plea of bar of limitation vis-à-vis the originalEdefendant claiming that possession came to them in 1976, with the suitbeing filed in 1989. Yet at the same time, it is claimed that the wife hadtitle on the basis of these very documents. The claim of title from 1976and the plea of adverse possession from 1976 cannot simultaneouslyhold. On the failure to establish the plea of title, it was necessary toFprove as to from which date did the possession of the wife of the defendantamount to a hostile possession in a peaceful, open and continuous manner.We fail to appreciate how, on the one hand the appellants claimed thatthe wife of the original defendant, appellant 1 herein, had title to theproperty in 1976 but on their failure to establish title, in the alternative,Gthe plea of adverse possession should be recognised from the very date.

30. We also find that the reliance placed by learned counsel forthe appellants in Ravinder Kaur Grewal & Ors.[8]is also misplaced.The question which arose for consideration before the three Judge Bench H8 (supra)

was whether, a suit could be maintained for declaration of title and forpermanent injunction seeking protection on a plea of adverse possession,or that it was an instrument of defence in a suit filed against such aperson. In fact, if one may say, there was, for a long time a consistentview of the Court that the plea could only be of shield and not a sword.The judgment changed this legal position by opining that a plea to retainpossession could be managed by the ripening of title by way of adversepossession. However, to constitute such adverse possession, the threeclassic requirements, which need to co-exist were again emphasized,nec vi, i.e., adequate in continuity, nec clam, i.e., adequate in publicityand nec precario, i.e., adverse to a competitor, in denial of title and hisknowledge.

31. The question which confronts us is not the aforesaid, butwhether simultaneously a plea can be taken of title and adversepossession, i.e., whether it would amount to taking contradictory pleas.In this behalf, we may refer to the four judgments cited by learned counselfor the respondent herein, which succinctly set forth the legal position.

32. In Karnataka Board of Wakf [9] case, it has been clearly setout that a plaintiff filing a title over the property must specifically pleadit. When such a plea of adverse possession is projected, it is inherent inthe nature of it that someone else is the owner of the property. In thatcontext, it was observed in para 12 that “….the pleas on title and adversepossession are mutually inconsistent and the latter does not begin tooperate until the former is renounced….”

33. The aforesaid judgment in turn relied upon the judgment inMohan Lal (Deceased) Thr. LRs.[10], which observed in para 4 as under:

“4. As regards the first plea, it is inconsistent with the secondplea. Having come into possession under the agreement, he mustdisclaim his right thereunder and plead and prove assertion of hisindependent hostile adverse possession to the knowledge of thetransferor or his successor in title or interest and that the latterhad acquiesced to his illegal possession during the entire period of12 years, i.e., upto completing the period of his title by prescriptionnec vi, nec clam, nec precario. Since the appellant’s claim isfounded on Section 53-A, it goes without saying that he admits by 9 (supra)

10 (supra)

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Aimplication that he came into possession of the land lawfully underthe agreement and continued to remain in possession till date ofthe suit. Thereby the plea of adverse possession is not availableto the appellant.”

34. In order to establish adverse possession an inquiry is requiredBto be made into the starting point of such adverse possession and, thus,when the recorded owner got dispossessed would be crucial.[11]

35. In the facts of the present case, this fact has not at all beenproved. The possession of Smt. Narasamma, the wife of the defendant,is stated to be on account of consideration paid. Assuming that theCtransaction did not fructify into a sale deed for whatever reason, still thedate when such possession becomes adverse would have to be set out.Thus, the plea of adverse possession is lacking in all material particulars.

36. The possession has to be in public and to the knowledge of thetrue owner as adverse, and this is necessary as a plea of adverseDpossession seeks to defeat the rights of the true owner. Thus, the lawwould not be readily accepting of such a case unless a clear and cogentbasis has been made out[12].

37. We may also note another judicial pronouncement in RamNagina Rai & Anr. v. Deo Kumar Rai (Deceased) by LRs & Anr.[13]Edealing with a similar factual matrix, i.e., where there is permissivepossession given by the owner and the defendant claims that the samehad become adverse. It was held that it has to be specifically pleadedand proved as to when possession becomes adverse in order for the realowner to lose title 12 years hence from that time.

F38. The legal position, thus, stands as evolved against the appellantsherein in advancing a plea of title and adverse possession simultaneouslyand from the same date.

39. We have, thus, no hesitation in coming to the conclusion thatthe appeal is meritless and is accordingly dismissed with costs.

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40. In view of the current position and the long possession of theappellant, we grant time to the appellants herein to hand over vacant and 11 P.T. Munichikkanna Reddy & Ors. (supra)12 M. Siddiq (Dead) Through LRs (Ram Janmabhumi Temple Case) v. Mahant SureshDas & Ors. (supra)H13 (2019) 13 SCC 324

peaceful possession of the schedule property on or before 31.12.2020subject to furnishing of the usual undertaking within a period of four (4)weeks from today.

Ankit Gyan

Appeal dismissed.

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