Karnataka High Court
Sri.Gurayya S/O Basalingayya … vs Sri.Jagannath S/O Danappa Kulkarni on 13 December, 2024
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RSA No. 100271 of 2020
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 13TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
R.S.A NO. 100271 OF 2020 (DEC/INJ)
BETWEEN:
1. SRI. GURAYYA
S/O. BASALINGAYYA MUDAGALMATH,
AGE:71 YEAR.S., OCC. AGRICULTURE,
R/O. SASARAWADA, TQ. SHIRAHATTI,
DIST. GADAG-582120.
2. SRI. SHIVANANDAYYA
S/O. BASALINGAYYA MUDAGALMATH,
AGE: 67 YEAR.S., OCC. AGRICULTURE,
R/O. SASARAWADA, TQ. SHIRAHATTI,
DIST. GADAG-582120.
Digitally signed by
VISHAL NINGAPPA
PATTIHAL 3. SRI. MALLIKARJUN
Location: HIGH
COURT OF
KARNATAKA
S/O. GURUBASAYYA MUDAGALMATH,
DHARWAD BENCH
AGE: 69 YEAR.S., OCC. AGRICULTURE,
R/O. SASARAWADA, TQ. SHIRAHATTI,
DIST. GADAG-582120.
4. SRI. SHIVANANDA
S/O. DANAPPA KULKARNI,
AGE: 82 YEAR.S., OCC. AGRICULTURE,
R/O. SASARAWADA, TQ. SHIRAHATTI,
DIST. GADAG-582120.
5. SRI. RAVINDRA
S/O. DANAPPA KULKARNI,
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AGE: 65 YEAR.S., OCC. AGRICULTURE,
R/O. SASARAWADA, TQ. SHIRAHATTI,
DIST. GADAG-582120.
6. SRI. CHANNAVEERAYYA
S/O. DANAPPA KULKARNI,
AGE: 61 YEAR.S., OCC. AGRICULTURE,
R/O. SASARAWADA, TQ. SHIRAHATTI,
DIST. GADAG-582120.
... APPELLANTS
(BY SRI. S.P. KULKARNI, SR COUNSEL FOR
SRI. P.K.SANNINGAMMANAVAR, ADVOCATE;
SRI. S.R.HEGDE, ADVOCATE)
AND:
1. SRI. JAGANNATH
S/O. DANAPPA KULKARNI,
AGE: 67 YEAR.S., OCC. AGRICULTURE,
R/O. SASARAWADA, TQ. SHIRAHATTI,
DIST. GADAG-582120.
2. SRI. SURENDRA
S/O. JAGANNATH KULKARNI,
AGE: 41 YEAR.S., OCC. AGRICULTURE,
R/O. SASARAWADA, TQ. SHIRAHATTI,
DIST. GADAG-582120.
3. CHANAVEERAYYA
S/O. MURIGAYYA MUDAGALMATH,
AGE: 75 YEAR.S., OCC. AGRICULTURE,
R/O. SASARAWADA, TQ. SHIRAHATTI,
DIST. GADAG-582120.
4. SMT. PARVATEVVA
W/O. GURUBASAYYA MUDAGALMATH,
AGE: 75 YEAR.S., OCC. AGRICULTURE,
R/O. SASARAWADA, TQ. SHIRAHATTI,
DIST. GADAG-582120.
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5. SRI. KAPPATAYYA
S/O. MALLAYYA MUDAGALMATH,
AGE: 74 YEAR.S., OCC. AGRICULTURE,
R/O. SASARAWADA, TQ. SHIRAHATTI,
DIST. GADAG-582120.
5A. SMT. PARWATEVVA
W/O. KAPPATAYYA MUDAGALMATH,
AGED ABOUT 75 YEAR.S.,
OCC. HOUSEHOLD WORK.
R/O. SASARAWAD, TQ. SHIRAHATTI,
DIST. GADAG-582120.
5B. SRI. VEERAYYA
S/O. KAPPATAYYA MUDAGALMATH,
AGED ABOUT 69 YEAR.S., OCC. AGRICULTURE.
R/O. SASARAWAD, TQ. SHIRAHATTI,
DIST. GADAG-582120.
... RESPONDENTS
(BY SRI. ARAVIND D.KULKARNI, ADVOCATE FOR R1 & R2;
SRI. V.G.BHATM ADVOCATE FOR R5 ( A AND B);
R3-NOTICE SERVED; R4 & R5-DECEASED)
THIS R.S.A IS FILED U/SEC.100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 19.02.2020 PASSED
IN R.A.NO.7/2015 ON THE FILE OF THE I ADDITIONAL
PRINCIPAL FAMILY COURT, GADAG, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 19.12.2014, PASSED IN O.S.NO.220/2003 ON THE
FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, GADAG,
SITTING AT LAXMESHWAR, DISMISSING THE SUIT FILED
FOR DECLARATION AND INJUNCTION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR.S. JUSTICE K.S.HEMALEKHA
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ORAL JUDGMENT
1. Defendant Nos.2, 4, 7, 9, 11 and 12 are before
this Court, in this Regular Second Appeal, assailing the
judgment and decree, passed in R.A. No.7 of 2015, dated
19.02.2020, on the file of the I-Addl. Prl. Family Court,
Gadag (for short “the First Appellate Court”) reversing the
judgment and decree, passed in O.S. No.220/2003, dated
19.12.2014 on the file of the Addl. Senior Civil Judge,
Gadag sitting at Laxmeshwar (for short “the trial Court”).
2. The parties herein are referred to, as per their
rank before the trial Court, for the sake of convenience.
3. The family genealogical tree of the plaintiffs and
defendant Nos.9 to 13 is culled out as under:
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4. Defendant Nos.1 to 8 are not related to the
family. Suit is one for declaration, declaring that the
plaintiffs and defendant Nos.8 to 13 are the owners of the
suit properties and for permanent injunction restraining
defendant Nos.1 to 8 from disturbing the peaceful
possession and enjoyment of the suit properties in any
manner and in the alternative, if the Court comes to the
conclusion that, the plaintiffs and defendant Nos.9 to 13 are
not in possession of the suit properties, possession to be
awarded along with future mense profits.
5. Suit properties are the agricultural lands situated
at Sasarawad village in Shirhatti taluka, Gadag, which are
as under:
R.S. Nos. A-G Assessment Value
(a) 57/1 04-22 08-93 2,00,000-00
(b) 57/2 04-01 07-91 2,00,000-00
(c) 57/3 03-35 07-61 2,00,000-00
(d) 57/4 03-35 07-61 2,00,000-00
PLAINT AVERMENTS:
6. The propositus of the family of the plaintiffs was
one Danappa. Defendant No.13 is his wife. Plaintiff No.1
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and defendant Nos.9 to 12 are the sons of Danappa and
defendant No.13. Plaintiff No.2 is the son of plaintiff No.1.
The suit properties bearing R.S. Nos.57/5 and 57/6
originally formed one suit property and was numbered as
R.S. No.57, which totally measured 28 acres 21 guntas.
That the propositus of the family Danappa was officiating
Kulkarni and rendering services, the land bearing R.S.
No.57 was given to the family as an Inam land. After the
abolition of the village offices, the land resumed to the
Government and on application filed for regrant, the
Government has regranted the land to the family of
Danappa on 31.07.1962 under Order No.WBNSR-2049.
That R.S. No.57 was in possession of the family of Danappa
and after his death, plaintiff No.1 and defendant
Nos.9 to 13 as the class-I legal heirs. That defendant Nos.5
and 8 and one Basalingayya and Gurubasayya are the
natural brothers, they are not related to the family of
Danappa and the plaintiffs in any manner. Neither they
were officiating the village as Sanadi of Village nor R.S.
No.57 was given to the family of defendant Nos.5 and 8 or
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Basalingayya. That defendant Nos.5 and 8 and their
brothers Basalingayya and Gurubasayya created a false
varadhi and the whole R.S. No.57 is partitioned, under
which the suit lands are given to the shares of Basalingayya
and Gurubasayya and defendant Nos.5 and 8. The entry
under the mutation No.725 on 03.06.1984 is based on a
varadhi, under which the suit properties mentioned in the
plaint have been entered in the name of defendant No.5,
Gurubasayya and defendant No.8. The subdivision and the
mutation are illegal and behind the back of the plaintiffs
and defendant Nos.9 to 13. The suit properties are the
exclusive properties of the plaintiffs’ family and defendant
Nos.5 and 8 and their brothers have no right, title or
interest over the suit properties.
WRITTEN STATEMENT:
7. Defendant No.2 filed written statement inter alia
denying the plaint averments and contended that, the
husband of defendant No.1 and father of defendant
Nos.2 to 4 namely Basalingayya has purchased R.S.
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No.57/1; defendant No.5 has purchased R.S. No.57/2;
father of defendant No.7 i.e., Gurubasayya has purchased
R.S. No.57/3; and defendant No.8 has purchased R.S.
No.57/4 on 22.01.1980 under oral sale from Danappa and
all the purchasers have paid Rs.5,000/- each to the original
owner and they are in possession of their respective shares.
8. Further, after the death of Basalingayya, his
legal heirs i.e., defendant Nos.1 to 4 are in possession and
after the death of Gurubasyya, defendant Nos.6 and 7 are
in possession, after the death of Basalingayya and
Gurubasayya, defendant Nos.1 to 8 are in possession of the
suit properties. It is further stated that originally R.S. No.57
was an Inam land and the said land was regranted in the
year 1962 in favour of Danappa and Danappa has not
executed any registered sale deed in favour of the
purchasers, but in the year 1984 the deceased-Danappa
has filed a varadhi to the Village Accountant to enter the
names of the purchasers in RFR and as such ME No.725 has
been certified on 04.07.1984 and Danappa was aware
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about the said entry, the plaintiffs and defendant Nos.9 to
13 were also aware about the possession of defendant
Nos.1 to 8 in respect of the suit properties and they have
been not obstructing their possession. The suit of the
plaintiff is barred by limitation and further the husband of
defendant No.1 and father of defendant Nos.2 to 4 by name
Basalingayya, defendant No.5, defendant No.7 and
defendant No.8 are the owners of R.S. No.57/1, 57/2, 57/3
and 57/4 and are in continuous and actual possession since
22.01.1980 as owners with knowledge of deceased
Danappa and plaintiff No.1 and Defendant Nos.9 to 13 and
they have perfected their title over the properties by way of
adverse possession.
9. The Written statement filed by defendant No.2
was adopted by defendant Nos.1, 3, 4, 6, 7 and 8.
WRITTEN STATEMENT OF DEFENDANT NO.9:
10. Defendant No.9 filed separate written statement
admitting the oral sale dated 22.01.1980 in respect of R.S.
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Nos.57/1, 57/2, 57/3 and 57/4 in favour of Basalingayya,
the husband of defendant No.1 and father of defendant
Nos.2 to 4, defendant No.5, father of defendant No.7 and
Gurubasayya and that since the date of purchase, they are
in actual possession of their respective shares. Defendant
No.9 admits about the grant of R.S. No.57 in favour of
Danappa and about not executing any registered sale deed
in favour of the above mentioned purchasers contends that,
the varadhi was submitted by Danappa to Village
Accountant to enter the name of the purchasers under ME
No.725 which was certified. Defendant No.9 contends that
from the date of purchase, the defendants are in possession
of their respective properties and this was known to the
plaintiffs and defendant Nos.9 to 13 and there is no cause
of action to file the suit. The L.Rs. of Basalingayya,
defendant Nos.1 to 4 are in possession of suit schedule ‘A’
properties; defendant No.5 is in possession of suit schedule
‘B’ properties; L.Rs. of defendant Nos.6 and 7 are in
possession of suit schedule ‘C’ properties, defendant No.8 is
in possession schedule ‘D’ properties.
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11. The trial Court based on the pleadings, framed
following issues:
“1. Whether the plaintiffs prove that plaintiff No.1
and defendant nos.9 to 12 are owners and in
lawful possession of suit properties?
2. Whether defendant Nos.1 to 8 have denied
plaintiffs title and caused interference into her
possession of suit properties?
3. Whether plaintiffs are alternatively proves that
plaintiff No.1 and defendant Nos.9 to 13 are
illegally dispossessed and they are entitled for
recovery of suit properties from defendant
nos.1 to 8?
4. Whether defendant Nos.1 to 8 have perfected
their right, title and possession of suit
properties by way of adverse possession?
5. To what order or decree?”
12. In order to substantiate their claim, plaintiff No.2
examined himself as PW1 examined two witnesses as PW2
and PW3 marked the documents at Exs.P1 to P27. On the
other hand, defendant No.4 examined himself as DW1,
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three witnesses as DW2 to DW4 marked the documents at
Exs.D1 to D22.
13. The trial Court based on the pleadings, oral and
documentary evidence, arrived at a conclusion that:
(i) The plaintiffs have failed to prove that plaintiff No.1
and defendant Nos.9 to 13 are the owners and in
lawful possession of the suit properties.
(ii) Defendant Nos.1 to 8 have perfected their title over
the suit properties by way of adverse possession.
The trial Court by the judgment and decree dismissed the
suit of the plaintiffs.
14. The plaintiffs preferred appeal before the First
Appellate Court. The First Appellate Court, while
appreciating the entire oral and documentary evidence
independently framed the following points for its
consideration:
“1) Whether the trial Court is justified in accepting
the contention of the defendants that the
defendants have perfected their title by
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adverse possession thereby dismissing the suit
of the plaintiffs?
2) Whether the judgment and decree of the trial
Court calls for interference by the hands of this
Court?
3) What order or decree?”
15. While answering the points for consideration, the
First Appellate Court held that, the defendants have failed
to establish the plea of adverse possession and dismissing
of the suit by the trial Court warrants interference, by the
judgment and decree reversed the judgment of the trial
Court and decreed the suit of the plaintiffs.
16. Aggrieved, the defendant Nos.2, 4, 7, 9, 11 and
12 are before this Court in this Regular Second Appeal.
17. Heard the learned Senior Counsel Shri S.P.
Kulkarni appearing for Shri P.K. Sanningammanavar,
learned counsel for the appellants and Shri Aravind
D.Kulkarni, learned counsel for the respondent
Nos.1 and 2; Shri V.G. Bhat, learned counsel for
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respondent Nos.5(a) and 5(b) and perused the materials
available on record.
18. Learned Senior Counsel appearing for the
appellants would urge the following grounds:
(i) Taking this Court to the prayer in the plaint contends
that, the plaintiffs have sought for an alternative
prayer of possession, which clearly indicates that the
plaintiffs are not in possession of the suit properties
and which aspect has been considered by the trial
Court and held that the plaintiffs have failed to prove
that they are in legal possession over the suit
properties and the First Appellate Court totally fell in
error in decreeing the suit of the plaintiffs as prayed
for.
(ii) That the propositus – Danappa submitted the varadhi
to the village accountant to create ME No.725 on
04.01.1994 by virtue of which defendant Nos,1 to 8
are put in possession of the suit properties.
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(iii) That the First Appellate Court fell in error in granting
the decree in favour of the plaintiffs only based on the
defendants’ failure to prove their case without
considering that the plaintiffs have to independently
prove their title over the suit schedule properties and
the weakness of the defendants cannot bring about a
decree for the plaintiffs.
(iv) Reliance is placed on the decision of the Co-ordinate
Bench of this Court in the case of HANUMANTHAPPA
SINCE DEAD BY L.RS. Vs. LEELA1, (for short
“HANUMANTHAPPA”) wherein the prayer sought for
by the plaintiffs are contradictory reliefs and the First
Appellate Court could not have decreed the suit, when
the plaintiffs have not specified the relief, which they
are entitled to and the First Appellate Court merely
mentioning the “appeal is allowed” and “the suit is
decreed” is not proper.
1
2024 (4) KCCR 4009
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(v) Reliance is also placed on the decision of the Apex
Court in the case of LAKSHMI RAM BHUYAN VS.
HARI PRASAD BHUYAN AND OTHERS2 (for short
“LAKSHMI RAM BHUYAN”).
(vi) That the First Appellate court has totally fell in error to
frame proper points for its consideration as envisaged
under Order 41 Rule 31 of CPC.
(vii) That the First Appellate Court has considered the only
question of adverse possession pleaded by the
defendants and at any rate did not consider the
maintainability of the suit on the legal grounds
irrespective of the defence of the defendants; and that
the suit is barred by limitation under Articles 58 and
65 of the Constitution of India;
(viii) That defendant No.9, the brother of the plaintiffs and
defendant Nos.10 and 12 have categorically admitted
in their written statement and in their evidence that
2
AIR 2003 SC 351
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the defendant Nos.1 to 8 are in possession and
enjoyment of the suit properties since 1980 and the
First Appellate Court has totally fell in error in
decreeing the suit of the plaintiffs as prayed for and
the judgment of the First Appellate Court suffers from
perversity warranting interference under Section 100
of CPC and there arises a substantial question of law
to be framed by this Court.
19. Per contra, learned counsel appearing for the
respondents justifies the judgment and decree of the First
Appellate Court and urges the following grounds:
(i) The title of the plaintiffs is not disputed by defendant
Nos.1 to 8 and having admitted the title of the
plaintiffs, the plaintiffs need not prove by any further
evidence, as admitted fact need not be proved, which
aspect was totally overlooked by the trial Court;
(ii) The plea taken by the defendants is the plea of title
based on an oral sale by the original propositus –
Danappa and on the other hand also takes up a plea
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of adverse possession, which are mutually
inconsistent and the latter does not begin to operate
until the farmer is renounced;
(iii) That the alternative plea of adverse possession by the
defendants was unsustainable and the defendants
having failed to establish the ingredients of the plea of
adverse possession, the First Appellate Court was
right in arriving at a conclusion that the plaintiffs are
entitled for declaration and injunction;
(iv) The First Appellate Court being the last fact finding
Court has rightly assessed the entire oral and
documentary evidence and while answering point No.1
has considered that, the plaintiffs have filed the suit
for declaration, wherein the ownership of the plaintiffs
is not disputed and the plea of adverse possession and
title, which were set up by the defendants is failed to
be established;
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(v) That the findings of fact recorded by the last fact
finding Court does not suffer from any perversity
warranting any interference under Section 100 of CPC
(vi) In support of his contention, learned counsel has
placed reliance on the decision of the Apex Court in
the case of KARNATAKA BOARD OF WAKF VS.
GOVERNMENT OF INDIA AND OTHERS3 (for short
“KARNATAKA BOARD OF WAKF”) and in the case
of GOVERNMENT OF KERALA AND ANOTHER VS.
JOSEPH AND OTHERS4 (for short “GOVERNMENT
OF KERALA AND ANOTHER”).
20. This Court has carefully considered the rival
contentions of the learned counsel appearing for the parties
and perused the materials available on record.
21. Undisputed fact is that, the propositus of the
plaintiffs and defendant Nos.9 to 13 was regranted land
bearing Sy.No.57 on 31.07.1962.
3
(2004) 10 SCC 779
4
Civil Appeal No.3142/2010, DD 09.08.2023
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22. Defendant Nos.1 to 8 claim title over the suit
properties on the following grounds:
(i) That the propositus – Danappa who was regranted
Sy.No.57 on 31.07.1962, by way of an oral sale on
22.01.1980 has sold the suit properties to
Gurubasayya and Basalingayya;
(ii) That pursuant to the oral sale from Danappa in the
year 1994, Danappa filed varadhi to the Village
Accountant to enter the names of the purchasers i.e.,
defendant Nos.1 to 8 in respect of the suit properties
under ME No.725, which was duly registered on
04.01.1994 and from 04.01.1994, the plaintiffs were
aware that the defendants have perfected their title
and are in continuous and peaceful possession of the
suit properties as owner and the suit of the plaintiff is
barred by limitation.
(iii) That when the defendants admit the title of the
propositus i.e., Danappa, nothing was left for the
plaintiff to prove that the plaintiff inherited the suit
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properties from Danappa and were owners of the suit
properties. Defendant Nos.1 to 8 set up a plea of
adverse possession, it means that defendant Nos.1 to
8 admit the title of the plaintiffs, which aspect was
totally overlooked by the trial Court, while dismissing
the suit of the plaintiffs.
23. The plea of defendant Nos.1 to 8 are in two folds
(i) that they have acquired their title under oral sale by
Danappa; and (ii) that they have perfected their title by
way of adverse possession. The plea of title and the plea
adverse possession are mutually inconsistent and the latter
does not begin to operate until the farmer is renounced.
Merely long standing possession over the properties,
without denial of title of the true owner cannot convert a
permissive possession into an adverse possession and the
well settled principle is that the party claiming adverse
possession must prove that his possession is “nec vi, nec
clam and nec precario”, that is, peaceful, open and
continuous.
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24. The possession must be adequate in continuity,
in publicity and in extent to show that their possession is
adverse to the true owner. Therefore, a person who claims
adverse possession should show: (a) on what date he came
into possession, (b) what was the nature of his possession,
(c) whether the factum of possession was known to the
other party, (d) how long his possession has continued, and
(e) his possession was open and undisturbed. Whenever
the plea of adverse possession is projected, inherent his
plea is that someone else was the owner of the properties.
In the instant case, the plea of title and adverse possession
pleaded by the defendant Nos.1 to 8 are mutually
inconsistent; the Apex Court in the case of KARNATAKA
BOARD OF WAKF stated supra has considered the
essential ingredients that are necessary for establishing the
plea of adverse possession and also held that the plea
based on title of the suit properties and plea of adverse
possession are mutually, exclusive, inconsistent and the
latter does not begin to operate until the former is
renounced and at para Nos.11 to 13 has held as under:
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RSA No. 100271 of 2020“11. In the eye of the law, an owner would be
deemed to be in possession of a properties so long
as there is no intrusion. Non-use of the properties by
the owner even for a long time won’t affect his title.
But the position will be altered when another person
takes possession of the properties and asserts a
right over it. Adverse possession is a hostile
possession by clearly asserting hostile title in denial
of the title of the true owner. It is a well-settled
principle that a party claiming adverse possession
must prove that his possession is “nec vi, nec clam,
nec precario”, that is, peaceful, open and
continuous. The possession must be adequate in
continuity, in publicity and in extent to show that
their possession is adverse to the true owner. It
must start with a wrongful disposition of the rightful
owner and be actual, visible, exclusive, hostile and
continued over the statutory period. (See S.M. Karim
v. Bibi Sakina, Parsinni v. Sukhi and D.N.
Venkatarayappa v. State of Karnataka.) Physical fact
of exclusive possession and the animus possidendi to
hold as owner in exclusion to the actual owner are
the most important factors that are to be accounted
in cases of this nature. Plea of adverse possession is
not a pure question of law but a blended one of fact
and law. Therefore, a person who claims adverse
possession should show: (a) on what date he came
into possession, (b) what was the nature of his
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possession, (c) whether the factum of possession
was known to the other party, (d) how long his
possession has continued, and (e) his possession
was open and undisturbed. A person pleading
adverse possession has no equities in his favour.
Since he is trying to defeat the rights of the true
owner, it is for him to clearly plead and establish all
facts necessary to establish his adverse possession.
[Mahesh Chand Sharma (Dr.) v. Raj Kumari
Sharma‘]
12. A plaintiff filing a title suit should be very
clear about the origin of title over the properties. He
must specifically plead it. (See S.M. Karim v. Bibi
Sakina) In P. Periasami v. P Periathambi this Court
ruled that:
“Whenever the plea of adverse
possession is projected, inherent in the plea
is that someone else was the owner of the
properties.”
The pleas on title and adverse possession are
mutually inconsistent and the latter does not begin
to operate until the former is renounced. Dealing
with Mohan Lal v. Mirza Abdul Gaffar that is similar
to the case in hand, this Court held:
“4. As regards the first plea, it is
inconsistent with the second plea. Having
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agreement, he must disclaim his right
thereunder and plead and prove assertion
of his independent hostile adverse
possession to the knowledge of the
transferor or his successor in title or
interest and that the latter had acquiesced
to his illegal possession during the entire
period of 12 years i.e. up to completing the
period his title by prescription nec vi, nec
clam, nec precario. Since the appellant’s
claim is founded on Section 53-A, it goes
without saying that he admits by
implication that he came into possession of
land lawfully under the agreement and
continued to remain in possession till date
of the suit. Thereby the plea of adverse
possession is not available to the
appellant.”
13. As we have already found, the respondent
obtained title under the provisions of the Ancient
Monuments Act. The element of the respondent’s
possession of the suit properties to the exclusion of
the appellant with the animus to possess it is not
specifically pleaded and proved. So are the aspects
of earlier title of the appellant or the point of time of
disposition. Consequently, the alternative plea of
adverse possession by the respondent is
– 26 –
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RSA No. 100271 of 2020
unsustainable. The High Court ought not to have
found the case in their favour on this ground.”
25. The Apex Court in the case of GOVERNMENT OF
KERALA AND ANOTHER stated supra has held at 20 and
21 as under:
“20. The principle of adverse possession has been
defined by the Privy Council in Perry v. Clissold5 in
the following terms:
“It cannot be disputed that a person in
possession of land in the assumed character of
the 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
provisions of the statute of Limitation
applicable to the case, his right is forever
extinguished and the possessory owner
acquires an absolute title.”
21. Before proceeding to do so, it is essential to
take note of the law governing such a claim. After a
perusal and consideration of various judgments
5
[1907] A.C. 73
– 27 –
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rendered by this Court, the following principles can
be observed:
21.1 Possession must be open, clear, continuous
and hostile to the claim or possession of the
other party; all three classic requirements
must coexist – nec vi, i.e., adequate in
continuity; nec clam, i.e., adequate in
publicity; and nec precario, i.e., adverse to a
competitor, in denial of title and knowledge;
(a) In Radhamoni Debi v. Collector of
Khulna6, the Privy Council held that-
“The possession required must be
adequate in continuity, in publicity, and
in extent to show that it is possession
adverse to the competitor.”
(b) Further, the Council Maharaja Sri
Chandra Nandi v. Baijnath Jugal Kishore7
observed-
“It is sufficient that the possession should
be overt and without any attempt at
concealment, so that the person against
whom time is running ought, if he6
1900 SCC OnLine PC 4
7
AIR 1935 PC 36
– 28 –
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RSA No. 100271 of 2020exercises due vigilance, to be aware of
what is happening.”
(c) A Bench of three judges of this Court in
Parsinni v.Sukhi8 held that:-
“Party claiming adverse possession must
prove that his possession must be ‘nec
vi, nec clam, nec precario’ i.e. peaceful,
open and continuous. The possession
must be adequate, in continuity, in
publicity and in extent to show that their
possession is adverse to the true owner.”
(d) In Karnataka Board of Wakf v. Govt. of
India9 (two- Judge Bench) it was held:-
“It is a well-settled principle that a party
claiming adverse possession must prove
that his possession is “nec vi, nec clam,
nec precario”, that is, peaceful, open and
continuous. The possession must be
adequate in continuity, in publicity and in
extent to show that their possession is
adverse to the true owner. It must start
with a wrongful disposition of the rightful
owner and be actual, visible, exclusive,8
(1993)4 SCC 375
9
(2004) 10 SCC 779
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RSA No. 100271 of 2020
hostile and continued over the statutory
period.”
This case was relied on in the case of M.
Venkatesh v. Bangalore Development
Authority10 (three-Judge Bench), Ravinder Kaur
Grewal v. Manjit Kaur11 (three-Judge Bench).
(e) This Court in a recent case of M Siddiq
(D) through LRs v. Mahant Suresh Das & Ors.12
(five-Judge Bench) reiterated this principle as
under –
“748. A person who sets up a plea of
adverse possession must establish both
possession which is peaceful, open and
continuous – possession which meets the
requirement of being ‘nec vi nec clam
and nec precario’. To substantiate a plea
of adverse possession, the character of
the possession must be adequate in
continuity and in the public because the
possession has to be to the knowledge of
the true owner in order for it to be
adverse. These requirements have to be
duly established first by adequate10
(2015) 17 SCC 1
11
(2019) 8 SCC 729
12
(2020) 1 SCC 1
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RSA No. 100271 of 2020
pleadings and second by leading
sufficient evidence.”
21.2 The person claiming adverse possession must
show clear and cogent evidence substantiate
such claim;
This Court in Thakur Kishan Singh v. Arvind
Kumar13 (two-Judge Bench) held that –
“5. A possession of a co-owner or of a
licensee or of an agent or a permissive
possession to become adverse must be
established by cogent and convincing
evidence to show hostile animus and
possession adverse to the knowledge of
real owner. Mere possession for
howsoever length of time does not result
in converting the permissive possession
into adverse possession…”
Reference may also be made to M. Siddiq
(supra).
21.3 Mere possession over a property for a long
period of time does not grant the right of
adverse possession on its own;
13
(1994) 6 SCC 591
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(a) In Gaya Prasad Dikshit v. Dr. Nirmal
Chander and Anr.14 (two-Judge Bench), this
court observed-
“1 … It is not merely unauthorised
possession on termination of his licence
that enables the licensee to claim title by
adverse possession but there must be
some overt act on the part of the
licensee to show that he is claiming
adverse title. It is possible that the
licensor may not file an action for the
purpose of recovering possession of the
premises from the licensee after
terminating his licence but that by itself
cannot enable the licensee to claim title
by adverse possession. There must be
some overt act on the part of the
licensee indicating assertion of hostile
title. Mere continuance of unauthorised
possession even for a period of more
than 12 years is not enough.”
Reference may also be made to Arvind
Kumar (supra); Mallikarjunaiah v. Nanjaiah15
(two-Judge Bench); Uttam Chand (supra).
14
(1984) 2 S CC 286
15
(2019) 15 SCC 756
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RSA No. 100271 of 2020
21.4 Such clear and continuous possession must be
accompanied by animus possidendi – the
intention to possess or in other words, the
intention to dispossess the rightful owner;
in Karnataka Board of Wakf (supra) it was
observed-
“…Physical fact of exclusive possession
and the animus possidendi to hold as
owner in exclusion to the actual owner
are the most important factors that are
to be accounted in cases of this nature…”
(a) The case of Annakili v. A.
Vedanayagam (two-Judge Bench) also shed
light on this principle as under -
24. Claim by adverse possession has two
elements:
(1) the possession of the defendant
should become adverse to the plaintiff;
and (2) the defendant must continue to
remain in possession for a period of 12
years thereafter. Animus possidendi as is
well known is a requisite ingredient of
adverse possession. It is now a well-
settled principle of law that mere
possession of the land would not ripen
into possessory title for the said purpose.
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Possessor must have animus possidendi
and hold the land adverse to the title of
the true owner. For the said purpose, not
only animus possidendi must be shown to
exist, but the same must be shown to
exist at the commencement of the
possession…”
(b) In Des Raj and Others v. Bhagat
Ram16 (two- Judge Bench) this Court observed-
“21. In a case of this nature, where long
and continuous possession of the
plaintiff-respondent stands admitted, the
only question which arose for
consideration by the courts below was as
to whether the plaintiff had been in
possession of the properties in hostile
declaration of his title vis-à-vis his co-
owners and they were in know thereof.”
(c) This court in L.N. Aswathama v. P.
Prakash17 (two-Judge Bench) had observed
that permissive possession or possession in the
absence of Animus possidendi would not
constitute the claim of adverse possession.
16
(2007) 9 SCC 641
17
(2009) 13 SCC 229
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RSA No. 100271 of 2020
(d) It was also held in the case of Chatti
Konati Rao v.Palle Venkata Subba Rao18 (two-
Judge Bench) –
“15. Animus possidendi as is well known
is a requisite ingredient of adverse
possession. Mere possession does not
ripen into possessory title until the
possessor holds the property adverse to
the title of the true owner for the said
purpose. The person who claims adverse
possession is required to establish the
date on which he came in possession,
nature of possession, the factum of
possession, knowledge to the true owner,
duration of possession and that
possession was open and undisturbed…”
(Emphasis supplied)
Referring to the above judgment Subha Rao
(supra) this Court has reiterated the cardinality
of the presence of Animus possidendi in a case
concerning adverse possession in Brijesh
Kumar & Anr. v. Shardabai (dead) by LRs.19
(two- Judge Bench).
18
(2010) 14 SCC 316
19
(2019) 9 SCC 369
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RSA No. 100271 of 2020
21.5 Such a plea is available not only as a defence
when title is questioned, but is also available as
a claim to a person who has perfected his title;
The prior position of law as set out
in Gurudwara Sahab v. Gram Panchayat Village
Sirthala20 (two-Judge Bench) was that the plea
of adverse possession can be used only as a
shield by the defendant and not as a sword by
the plaintiff. However, the position was
changed later by the decision of this Hon’ble
Court in the case of Ravinder Kaur (supra) had
held that – “… Title or interest is acquired it can
be used as a sword by the plaintiff as well as a
shield by the defendant within ken of Article
65 of the Act and any person who has
perfected title by way of adverse possession,
can file a suit for restoration of possession in
case of dispossession…”
The position in Ravinder Kaur (supra) was
followed in Narasamma & Ors. v. A. Krishnappa
(Dead) Through LRs.24 (three-Judge Bench).
21.6 Mere passing of an ejectment order does not
cause brake in possession neither causes his
dispossession;
20
(2014) 1 SCC 669
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In Balkrishna v. Satyaprakash21 (two-Judge
Bench) this Court held :
“…Mere passing of an order of ejectment
against a person claiming to be in
adverse possession neither causes his
dispossession nor discontinuation of his
possession which alone breaks the
continuity of possession.”
21.7 When the land subject of proceedings wherein
adverse possession has been claimed, belongs
to the Government, the Court is duty-bound to
act with greater seriousness, effectiveness,
care and circumspection as it may lead to
Destruction of a right/title of the State to
immovable property. In State of Rajasthan v.
Harphool Singh22 (two-Judge Bench) it was
held :
“12. So far as the question of perfection
of title by adverse possession and that
too in respect of public property is
concerned, the question requires to be
considered more seriously and effectively
for the reason that it ultimately involves
destruction of right/title of the State to
immovable property and conferring upon21
(2001) 2 SCC 498
22
(2000) 5 SCC 652
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RSA No. 100271 of 2020
a third-party encroacher title where he
had none.”
Further, in Mandal Revenue Officer v. Goundla
Venkaiah23 (two-Judge Bench) it was stated :
“…It is our considered view that
where an encroacher, illegal occupant or
land grabber of public property raises a
plea that he has perfected title by
adverse possession, the court is duty-
bound to act with greater seriousness,
care and circumspection. Any laxity in
this regard may result in destruction of
right/title of the State to immovable
property and give an upper hand to the
encroachers, unauthorised occupants or
land grabbers.”
21.8 A plea of adverse possession must be pleaded
with proper particulars, such as, when the
possession became adverse. The court is not to
travel beyond pleading to give any relief, in
other words, the plea must stand on its own
two feet. This Court has held this in the case
of V. Rajeshwari v. T.C. Saravanabava24 (two-
Judge Bench):
23
(2010) 2 SCC 461
24
(2004) 1 SCC 551
– 38 –
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RSA No. 100271 of 2020
“…A plea not properly raised in the
pleadings or in issues at the stage of the
trial, would not be permitted to be raised
for the first time at the stage of
appeal…”
It has also been held in the case of State of
Uttrakhand v. Mandir Sri Laxman Sidh
Maharaj25 (two-Judge Bench) :
“…The courts below also should have
seen that courts can grant only that relief
which is claimed by the plaintiff in the
plaint and such relief can be granted only
on the pleadings but not beyond it. In
other words, courts cannot travel beyond
the pleadings for granting any relief…”
Mandir Sri Laxman Sidh Maharaj (supra) was
relied on in Dharampal (Dead) v. Punjab Wakf
Board26 (two-Judge Bench) on the same
principle.
21.9 Claim of independent title and adverse
possession at the same time amount to
contradictory pleas. The case of Annasaheb
25
(2017) 9 SCC 579
26
(2018) 11 SCC 449
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RSA No. 100271 of 2020
Bapusaheb Patil v. Balwant27 (two-Judge
Bench) elaborated this principle as :
“15. Where possession can be referred to
a lawful title, it will not be considered to
be adverse. The reason being that a
person whose possession can be referred
to a lawful title will not be permitted to
show that his possession was hostile to
another’s title. One who holds possession
on behalf of another, does not by mere
denial of that other’s title make his
possession adverse so as to give himself
the benefit of the statute of limitation.
Therefore, a person who enters into
possession having a lawful title, cannot
divest another of that title by pretending
that he had no title at all.”
This principle was upheld in the case of Mohan
Lal v. Mirza Abdul Gaffar28 (two-Judge Bench) –
“4. As regards the first plea, it is
inconsistent with the second plea. Having
come into possession under the
agreement, he must disclaim his right
thereunder and plead and prove
assertion of his independent hostile
27
(1995) 2 SCC 543
28
(1996) 1 SCC 639
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RSA No. 100271 of 2020
adverse possession to the knowledge of
the transferor or his successor in title or
interest and that the latter had
acquiesced to his illegal possession
during the entire period of 12 years, i.e.,
up to completing the period of his title by
prescription nec vi, nec clam, nec
precario. Since the appellant’s claim is
founded on Section 53-A, it goes without
saying that he admits by implication that
he came into possession of the land
lawfully under the agreement and
continued to remain in possession till
date of the suit. Thereby the plea of
adverse possession is not available to the
appellant.”
The Court in Uttam Chand (supra) has
reiterated this principle of adverse possession.
21.10 Burden of proof rests on the person claiming
adverse possession.
This Court, in P.T. Munichikkanna Reddy v.
Revamma29 (two-Judge Bench), it held that
initially the burden lied on the landowner to
prove his title and title. Thereafter it shifts on
29
(2007) 6 SCC 59
– 41 –
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RSA No. 100271 of 2020
the other party to prove title by adverse
possession. It was observed: –
“34. The law in this behalf has
undergone a change. In terms of Articles
142 and 144 of the Limitation Act, 1908,
the burden of proof was on the plaintiff to
show within 12 years from the date of
institution of the suit that he had title
and possession of the land, whereas in
terms of Articles 64 and 65 of
the Limitation Act, 1963, the legal
position has underwent complete change
insofar as the onus is concerned : once a
party proves its title, the onus of proof
would be on the other party to prove
claims of title by adverse possession….”
The Court reiterated this principle in the case
of Janata Dal Party v. Indian National
30
Congress (two-Judge Bench):
“…the entire burden of proving that the
possession is adverse to that of the
plaintiffs, is on the defendant…”
21.11 The State cannot claim the land of its citizens
by way of adverse possession as it is a welfare
State.
30
(2014) 16 SCC 731
– 42 –
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RSA No. 100271 of 2020
[State of Haryana v. Mukesh
31
Kumar (two-Judge Bench)]"
26. In the instant case, defendant Nos.1 to 8
contend that they are in possession of the suit properties
from the date they have purchased under an oral sale from
Danappa i.e., on 22.01.1980 and further when the
deceased Danappa filed varadhi to the Village Accountant to
enter the name of the purchasers under ME No.725 was
duly effected on 04.01.1994 and the defendants have been
continuously in possession from 22.01.1980; if the
contention of the defendants is considered, their possession
can only be termed as a permissive possession and not by
way of adverse possession as contended by the defendants;
when the plea of adverse possession is pleaded by the
defendants, the limitation starts from the time when the
defendants’ possession has become adverse to the
knowledge of the plaintiffs. In the instant case, the
averment is totally absent as to when the possession of the
31
(2011) 10 SCC 404
– 43 –
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RSA No. 100271 of 2020
defendants becomes adverse to the knowledge of the
plaintiffs.
27. The Apex Court in the case of Narasamma &
Ors. vs. A. Krishnappa (Dead) through LRs.32 has held
at para Nos.16, 29, 31, 32, 33, 36 and 37, which read as
under:
“16. That brought the High Court to the main
aspect which resulted in the appeal being allowed
i.e. the failure of the appellants herein on their plea
of adverse possession. Once again, there is an
elaborate discussion on the various judicial
pronouncements of this Court on the plea of adverse
possession, emphasizing that the success of this plea
requires the person claiming the same to prove that
he is in possession and that, “his possession is “nec
vi, nec clam, nec precario”, that is, peaceful, open
and continuous. The possession must be adequate in
continuity, in publicity and in extent to show that
their possession is adverse to the true owner. It
must start with a wrongful dispossession of the
rightful owner and be actual, visible, exclusive,
hostile and continued over the statutory period.”
32
AIR 2020 SC 4178
– 44 –
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RSA No. 100271 of 2020
29. We may also note that on the one hand,
the appellants herein have sought to take a plea of
bar of limitation vis-à-vis the original defendant
claiming that possession came to them in 1976, with
the suit being filed in 1989. Yet at the same time, it
is claimed that the wife had title on the basis of
these very documents. The claim of title from 1976
and the plea of adverse possession from 1976
cannot simultaneously hold. On the failure to
establish the plea of title, it was necessary to prove
as to from which date did the possession of the wife
of the defendant amount to a hostile possession in a
peaceful, open and continuous manner. We fail to
appreciate how, on the one hand the appellants
claimed that the wife of the original defendant,
Appellant 1 herein, had title to the properties in
1976 but on their failure to establish title, in the
alternative, the plea of adverse possession should be
recognised from the very date.
31. The question which confronts us is not the
aforesaid, but whether simultaneously a plea can be
taken of title and adverse possession i.e. whether it
would amount to taking contradictory pleas. In this
behalf, we may refer to the four judgments cited by
the learned counsel for the respondent herein, which
succinctly set forth the legal position.
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32. In Karnataka Board of Wakf case, it has
been clearly set out that a plaintiff filing a title over
the properties must specifically plead it. When such
a plea of adverse possession is projected, it is
inherent in the nature of it that someone else is the
owner of the properties. In that context, it was
observed in para 12 that”… The pleas on title and
adverse possession are mutually inconsistent and
the latter does not begin to operate until the former
is renounced….”
33. The aforesaid judgment in turn relied upon
the judgment in Mohan Lal (Deceased) Thr. LRs,
which observed in para 4 as under:
“4. As regards the first plea, it is inconsistent
with the second plea. Having come into
possession under the agreement, he must
disclaim his right thereunder and plead and
prove assertion of his independent hostile
adverse possession to the knowledge of the
transferor or his successor-in-title or interest
and that the latter had acquiesced to his illegal
possession during the entire period of 12 years
i.e. up to completing the period of his title by
prescription nec vi, nec clam, nec precario.
Since the appellant’s claim is founded on
Section 53-A, it goes without saying that he
admits by implication that he came into
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RSA No. 100271 of 2020possession of the land lawfully under the
agreement and continued to remain in
possession till date of the suit. Thereby the
plea of adverse possession is not available to
the appellant.”
36. The possession has to be in public and to
the knowledge of the true owner as adverse, and
this is necessary as a plea of adverse possession
seeks to defeat the rights of the true owner. Thus,
the law would not be readily accepting of such a case
unless a clear and cogent basis has been made out.
37. We may also note another judicial
pronouncement in Ram Nagina Rai v. Deo Kumar Rai
(Deceased) by LRs and anr. dealing with a similar
factual matrix i.e. where there is permissive
possession given by the owner and the defendant
claims that the same had become adverse. It was
held that it has to be specifically pleaded and proved
as to when possession becomes adverse in order for
the real owner to lose title 12 years hence from that
time.”
28. The First Appellate Court being the last fact
finding Court has considered point No.1 and answered the
contentions raised by the parties. The contention of the
– 47 –
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RSA No. 100271 of 2020
learned Senior Counsel that the procedure as envisaged
under Order 41 Rule 31 of CPC is not complied, does not
hold water as the perusal of the judgment of the First
Appellate Court indicates that, the First Appellate Court
though didn’t frame a specific point for consideration,
however while answering Point No.1 has considered all the
aspects and reasons for reversal of the judgment of the
trial Court.
29. The Apex Court in the in case of Santosh
Hazare Vs. Purushottam Tiwari (Deceased) by L.Rs.,33
at paragraph No.15 has held as under:
“15. A perusal of the judgment of the trial
court shows that it has extensively dealt with the
oral and documentary evidence adduced by the
parties for deciding the issues on which the parties
went to trial. It also found that in support of his plea
of adverse possession on the disputed land, the
defendant did not produce any documentary
evidence while the oral evidence adduced by the
defendant was conflicting in nature and hence
unworthy of reliance. The first appellate court has, in
a very cryptic manner, reversed the finding on
33
AIR 2001 SC 965
– 48 –
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RSA No. 100271 of 2020question of possession and dispossession as alleged
by the plaintiff as also on the question of adverse
possession as pleaded by the defendant. The
appellate court has jurisdiction to reverse or affirm
the findings of the trial court. First appeal is a
valuable right of the parties and unless restricted by
law, the whole case is therein open for rehearing
both on questions of fact and law. The judgment of
the appellate court must, therefore, reflect its
conscious application of mind and record findings
supported by reasons, on all the issues arising along
with the contentions put forth, and pressed by the
parties for decision of the appellate court. The task
of an appellate court affirming the findings of the
trial court is an easier one. The appellate court
agreeing with the view of the trial court need not
restate the effect of the evidence or reiterate the
reasons given by the trial court; expression of
general agreement with reasons given by the court,
decision of which is under appeal, would ordinarily
suffice (See Girijanandini Devi v. Bijendra Narain
Choudhary [AIR 1967 SC 1124] ). We would,
however, like to sound a note of caution. Expression
of general agreement with the findings recorded in
the judgment under appeal should not be a device or
camouflage adopted by the appellate court for
shirking the duty cast on it. While writing a
judgment of reversal the appellate court must
– 49 –
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RSA No. 100271 of 2020remain conscious of two principles. Firstly, the
findings of fact based on conflicting evidence arrived
at by the trial court must weigh with the appellate
court, more so when the findings are based on oral
evidence recorded by the same Presiding Judge who
authors the judgment. This certainly does not mean
that when an appeal lies on facts, the appellate court
is not competent to reverse a finding of fact arrived
at by the trial Judge. As a matter of law if the
appraisal of the evidence by the trial Court suffers
from a material irregularity or is based on
inadmissible evidence or on conjectures and
surmises, the appellate court is entitled to interfere
with the finding of fact. (See Madhusudan
Das v. Narayanibai [(1983) 1 SCC 35 : AIR 1983 SC
114] ) The rule is — and it is nothing more than a
rule of practice — that when there is conflict of oral
evidence of the parties on any matter in issue and
the decision hinges upon the credibility of witnesses,
then unless there is some special feature about the
evidence of a particular witness which has escaped
the trial Judge’s notice or there is a sufficient
balance of improbability to displace his opinion as to
where the credibility lie, the appellate court should
not interfere with the finding of the trial Judge on a
question of fact. (See Sarju Pershad Ramdeo
Sahu v. Jwaleshwari Pratap Narain Singh [1950 SCC
714 : AIR 1951 SC 120] ) Secondly, while reversing
– 50 –
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RSA No. 100271 of 2020a finding of fact the appellate court must come into
close quarters with the reasoning assigned by the
trial court and then assign its own reasons for
arriving at a different finding. This would satisfy the
court hearing a further appeal that the first appellate
court had discharged the duty expected of it. We
need only remind the first appellate courts of the
additional obligation cast on them by the scheme of
the present Section 100 substituted in the Code. The
first appellate court continues, as before, to be a
final court of facts; pure findings of fact remain
immune from challenge before the High Court in
second appeal. Now the first appellate court is also a
final court of law in the sense that its decision on a
question of law even if erroneous may not be
vulnerable before the High Court in second appeal
because the jurisdiction of the High Court has now
ceased to be available to correct the errors of law or
the erroneous findings of the first appellate court
even on questions of law unless such question of law
be a substantial one.”
30. The First Appellate Court has rightly appreciated
the entire oral and documentary evidence and there is no
perversity in the judgment and decree of the First Appellate
Court. The reliance placed by the learned counsel for the
– 51 –
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RSA No. 100271 of 2020
appellant in the case of LAKSHMI RAM BHUYAN stated
supra, this Court has absolutely no quarrel about the
settled preposition of law that the operative part of the
judgment has to be clear, so that the relief, which has been
granted should be in conformity with the findings arrived.
The operative portion in the judgment of the First Appellate
Court indicates that the suit of the plaintiffs is decreed and
declared by arriving at a conclusion that the defendants
have failed to establish their possession and that they have
perfected their title by way of adverse possession and held
that the plaintiffs are in possession of the suit properties.
The First Appellate Court has clearly and precisely stated
the manner of reliefs by which the plaintiffs are found to be
entitled in view of the findings arrived during the course of
the Appellate Court’s judgment. The decision of the Apex
Court in the case of LAKSHMI RAM BHUYAN stated supra
is distinguishable and not applicable to the present facts
and circumstances of the case.
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RSA No. 100271 of 2020
31. The law is also well settled that the plaintiffs
have to succeed on their own legs and not depend upon the
weakness of the defendants and the entire burden is casted
upon the plaintiffs. In the instant case as stated supra, the
title derived by the plaintiffs from Danappa is not in dispute
and the defendants when set up a plea of adverse
possession, it means that the plaintiffs’ title has been
admitted and in an unequivocal terms the defendants
admitted the title of the plaintiffs. That being so, there was
no further burden, which was casted upon the plaintiffs to
discharge and the burden shifts upon the defendants to
prove that they have perfected their title either by way of
title or by way of adverse possession, which aspect has
been dealt by this Court in the earlier findings. There is no
error committed by the First Appellate Court in decreeing
the suit of the plaintiffs and setting aside the judgment and
decree of the trial Court.
32. The manner in which the First Appellate Court
has considered the entire oral and documentary evidence
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RSA No. 100271 of 2020
this Court is of the considered view that, the same does not
suffer from any illegality or perversity warranting any
interference under Section 100 of CPC and no substantial
question of law arises for consideration and this Court pass
the following:
ORDER
(i) The Regular Second Appeal is hereby
dismissed;
(ii) The judgment and decree of the First
Appellate Court stands confirmed, holding
that the plaintiffs are entitled for
declaration and permanent injunction.
SD/-
_____________________
(JUSTICE K.S. HEMALEKHA)
VNP / CT: PA
LIST NO.: 1 SL NO.: 52