Andhra Pradesh High Court – Amravati
S.M.Sakina Begum vs K.S.Masood Sab And 3 Ors on 3 July, 2025
BVLNC,J S.A.No.354 OF 2003
Page 1 of 27 Dt: 03.07.2025
APHC010904432003
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3368]
(Special Original Jurisdiction)
THURSDAY, THE THIRD DAY OF JULY
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE B V L N CHAKRAVARTHI
SECOND APPEAL No: 354/2003
Between:
1. S.M.SAKINA BEGUM, -
...APPELLANT
AND
1. K S MASOOD SAB AND 3 ORS, ANANTHAPUR
2. MAIMOON BEE DIED PER LRS, ANANTHAPUR
3. S M ANWAR BASHA, S/O. LATE K. MASOOD SAB, AGED
ABOUT 72 YEARS, MUSLIM, R/O. H.NO. 6-686, RAMNAGAR,
ANANTAPUR.
4. S M JAFFAR, S/O. LATE K. MASOOD SAB, AGED ABOUT 59
YEARS, MUSLIM, EMPLOYEE, MINERVA MILLS STAFF
QUARTERS, MAGADI ROAD, BANGALORE, (RESPONDENT
NO. 3 AND 4 ADDED AS LRS OF RESPONDENT NO. 1 IN IA
NO. 1923/93 DT 13-04-1994)
5. SYED ALLABAKASH, S/O SYED DASTHAGIRI SAB, AGED
ABOUT 79 YEARS, R/O. 7-498, RAHAMATH NAGAR, WARD
NO.2, ANANTHAPUR TOWN AND CITY, ANANTHAPUR
DISTRICT.
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6. SYED HIDAYATHULLA, S/O. S. ALLABAKASH, AGED ABOUT 53
YEARS, R/O. 6-3-291/A, RAM NAGAR, ANANTHAPUR TOWN
AND CITY, ANANTHAPUR DISTRICT.
7. SHAIK SHANULLA, S/O. S. ALLABAKASH, AGED ABOUT 49
YEARS, /O. 7-498, RAHAMATH NAGAR, WARD NO.2,
ANANTHAPUR TOWN AND CITY, ANANTHAPUR DISTRICT.
8. SYED SAMIULLAH, S/O. S. ALLABAKASH, AGED ABOUT 45
YEARS, R/O. 7-498, RAHAMATH NAGAR, WARD NO.2,
ANANTHAPUR TOWN AND CITY, ANANTHAPUR DISTRICT.
9. S THAJUMUNNISA, W/O. S. AHMAD ALI, AGED ABOUT 42
YEARS, R/O. 6-1-843, LAKSHMI NAGAR, ANANTHAPUR TOWN
AND CITY, ANANTHAPUR DISTRICT. (AS PER THE COURT
ORDER DATED 01.04.2024 RESPONDENT NO.5 TO 9 ARE
BROUGHT ON RECORD AS LRS OF THE DECEASED
RESPONDENT NO.2, VIDE IA NO. 3 OF 2024 IN SA NO.354 OF
2003)
...RESPONDENT(S):
Counsel for the Appellants:
1. N CHANDRA SEKHAR REDDY
Counsel for the Respondents:
1. GORLA MANASA
2. PRATAP NARAYAN SANGHI
The Court made the following:
BVLNC,J S.A.No.354 OF 2003
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HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
S.A.No.354 OF 2003
Between:
1. S.M.Sakina Begum (died)
2. S.M.Iqbal (died)
3. S.M.Inayath Basha, S/o.S.M.Anwar Basha,
Muslim, Aged 39 years, Business,
R/o.6-3-275, Ramnagar, Anantapur.
4. S.M.Abida Begum, W/o.H.A.Rahim,
Muslim, Aged 54 years,House wife,
R/o.6-3-275, Ramnagar, Anantapur.
5. S.M.Shanawaz Begum, W/o.Md.Karamatulla,
Muslim, Aged 51 years, House wife,
R/o.6-3-166A, Asiq Apartment, Anantapur.
6. S.M.Shataz Begum, W/o.T.S.Shafi Ahmed Khan,
Muslim, Aged 47 years, House wife,
Presently R/o.Dubai.
7. S.M.Zareentaj Begum, W/o.S.A.Khader Basha,
Muslim, Aged 44 years, House wife,
R/o.8/375, Gulzarpet, Anantapur.
8. S.M.Farhat Jan, W/o.S.M.Iqbal,
Muslim, Aged 64 years, House wife,
R/o.15-5-9, Madanapalle, Annamayya District.
9. S.M.Fayaz, S/o.S.M.Iqbal,
Muslim, Aged 41 years, Employee,
R/o.15-5-9, Madanapalle, Annamayya District.
10. S.M.Zaheer Arafat, S/o.S.M.Iqbal,
Muslim, Aged 38 years, Employee,
R/o.15-5-9, Madanapalle, Annamayya District.
BVLNC,J S.A.No.354 OF 2003
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(Appellants 2 to 7 are brought on record as legal
representatives of the deceased-sole appellant
vide C.O. dt: 06.10.2005 in CMP 2082/2005).
(Appellants 8 to 10 are brought on record as legal
representatives of the deceased-2nd appellant
vide C.O. dt: 28.01.2025 in I.A.6/2024).
.... APPELLANTS
Versus
1. K.S.Masood Sab (died by L.Rs).
2. S.A.Maimoon Bee (died)
3. S.M.Anwar Basha, S/o.Late M.Masood Sab,
Muslim, Aged 72 years,
R/o.H.No.6-686, Ramnagar, Anantapur.
4. S.M.Jaffar, S/o.Late M.Masood Sab,
Muslim, Aged 59 years, Employee,
R/o.Minerva Mills Staff QUARTERS,
Magadi Road, Bangalore.
5. Syed Allabakash, S/o.Syed Dastagiri Sab,
Muslim, Aged 79 years,
R/o.H.No.7-498, Rahamatnagar,
Ward No.2, Anantapur City and District.
6. Syed Hindayathulla, S/o.Syed Allabakash,
Muslim, Aged 53 years,
R/o.H.No.6-3-291/A, Ramnagar,
Ward No.2, Anantapur City and District.
7. Shaik Shanulla, S/o.Syed Allabakash,
Muslim, Aged 49 years,
R/o.H.No.7-498, Rahamatnagar,
Ward No.2, Anantapur City and District.
8. Syed Samiullah, S/o.Syed Allabakash,
Muslim, Aged 45 years,
R/o.H.No.7-498, Rahamatnagar,
Ward No.2, Anantapur City and District.
BVLNC,J S.A.No.354 OF 2003
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9. S.Thajumunnisa, W/o.S.Ahmad Ali,
Muslim, Aged 42 years,
R/o.H.No.6-1-843, Lakshmi Nagar,
Anantapur City and District.
(Respondents 3 and 4 are added as legal
representatives of the deceased-1st respondent
as per order dated 13.04.1994 in I.A.No.1923/1993).
(Respondents No.3 and 4 remained exparte in the
Trial Court. Hence, they are not necessary parties
herein).
(Respondents No.5 to 9 are brought on record as legal
Representatives of the deceased-2nd respondent vide
C.O. dt: 01.04.2024 in I.A.No.3 of 2024).
.... RESPONDENTS
DATE OF JUDGMENT PRONOUNCED : 03.07.2025
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
1. Whether Reporters of Local Newspapers
may be allowed to see the Judgment? Yes/No
2. Whether the copy of Judgment may be
marked to Law Reporters/Journals? Yes/No
3. Whether His Lordship wish to see the
fair copy of the Judgment? Yes/No
_____________________________
JUSTICE B.V.L.N.CHAKRAVARTHI.
BVLNC,J S.A.No.354 OF 2003
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* HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
+ S.A.No.354 OF 2003
% 03.07.2025
# Between:
1. S.M.Sakina Begum (died)
2. S.M.Iqbal (died)
3. S.M.Inayath Basha, S/o.S.M.Anwar Basha,
Muslim, Aged 39 years, Business,
R/o.6-3-275, Ramnagar, Anantapur.
4. S.M.Abida Begum, W/o.H.A.Rahim,
Muslim, Aged 54 years,House wife,
R/o.6-3-275, Ramnagar, Anantapur.
5. S.M.Shanawaz Begum, W/o.Md.Karamatulla,
Muslim, Aged 51 years, House wife,
R/o.6-3-166A, Asiq Apartment, Anantapur.
6. S.M.Shataz Begum, W/o.T.S.Shafi Ahmed Khan,
Muslim, Aged 47 years, House wife,
Presently R/o.Dubai.
7. S.M.Zareentaj Begum, W/o.S.A.Khader Basha,
Muslim, Aged 44 years, House wife,
R/o.8/375, Gulzarpet, Anantapur.
8. S.M.Farhat Jan, W/o.S.M.Iqbal,
Muslim, Aged 64 years, House wife,
R/o.15-5-9, Madanapalle, Annamayya District.
9. S.M.Fayaz, S/o.S.M.Iqbal,
Muslim, Aged 41 years, Employee,
R/o.15-5-9, Madanapalle, Annamayya District.
10. S.M.Zaheer Arafat, S/o.S.M.Iqbal,
Muslim, Aged 38 years, Employee,
R/o.15-5-9, Madanapalle, Annamayya District.
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(Appellants 2 to 7 are brought on record as legal
representatives of the deceased-sole appellant
vide C.O. dt: 06.10.2005 in CMP 2082/2005).
(Appellants 8 to 10 are brought on record as legal
representatives of the deceased-2nd appellant
vide C.O. dt: 28.01.2025 in I.A.6/2024).
.... APPELLANTS
Versus
1. K.S.Masood Sab (died by L.Rs).
2. S.A.Maimoon Bee (died)
3. S.M.Anwar Basha, S/o.Late M.Masood Sab,
Muslim, Aged 72 years,
R/o.H.No.6-686, Ramnagar, Anantapur.
4. S.M.Jaffar, S/o.Late M.Masood Sab,
Muslim, Aged 59 years, Employee,
R/o.Minerva Mills Staff QUARTERS,
Magadi Road, Bangalore.
5. Syed Allabakash, S/o.Syed Dastagiri Sab,
Muslim, Aged 79 years,
R/o.H.No.7-498, Rahamatnagar,
Ward No.2, Anantapur City and District.
6. Syed Hindayathulla, S/o.Syed Allabakash,
Muslim, Aged 53 years,
R/o.H.No.6-3-291/A, Ramnagar,
Ward No.2, Anantapur City and District.
7. Shaik Shanulla, S/o.Syed Allabakash,
Muslim, Aged 49 years,
R/o.H.No.7-498, Rahamatnagar,
Ward No.2, Anantapur City and District.
8. Syed Samiullah, S/o.Syed Allabakash,
Muslim, Aged 45 years,
R/o.H.No.7-498, Rahamatnagar,
Ward No.2, Anantapur City and District.
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9. S.Thajumunnisa, W/o.S.Ahmad Ali,
Muslim, Aged 42 years,
R/o.H.No.6-1-843, Lakshmi Nagar,
Anantapur City and District.
(Respondents 3 and 4 are added as legal
representatives of the deceased-1st respondent
as per order dated 13.04.1994 in I.A.No.1923/1993).
(Respondents No.3 and 4 remained exparte in the
Trial Court. Hence, they are not necessary parties
herein).
(Respondents No.5 to 9 are brought on record as legal
Representatives of the deceased-2nd respondent vide
C.O. dt: 01.04.2024 in I.A.No.3 of 2024).
.... RESPONDENTS
! Counsel for the Appellants : Sri N.Chandra Sekhar Reddy
^ Counsel for the
Respondents : Sri Pratap Narayana Sanghi and
Gorla Manasa
< Gist:
> Head Note:
? Cases referred:
1. 2024 SCC Online SC 318
2. AIR 2008 SC 2033
3. 2020 1 SCC 1
4. 2004 (10) SCC 779
This Court made the following:
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THE HON'BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI
SECOND APPEAL No.354 OF 2003
J U D G M E N T:
This Second Appeal is preferred by the appellant/plaintiff under
Section 100 of the Code of Civil Procedure 1908, assailing the decree
and judgment, dated 07.08.2002, passed in A.S.No.79 of 2001 on the
file of the Addl.Senior Civil Judge, at Ananthapuram (old A.S.No.9/1997
on the file of District Judge, Ananthapuram).
02. Heard Sri N. Chandrasekhara Reddy, learned counsel for the
A ppellants. Heard Sri Pratap Narayana Sanghi, learned Senior Counsel
assisted by Gorla Manasa, learned counsel for the Respondents.
Perused the material on record.
03. The appellants are legal representatives of the plaintiffs in the
suit. The respondents No.1 to 4 are the defendants in the suit. The
parties in the Second Appeal shall hereinafter be referred to as
arraigned in the Original Suit, for convenience and clarity.
04. The suit in O.S.202/1991 on the file of Junior Civil Judge,
Ananthapuram, was instituted seeking the relief of declaration of title
over the plaint schedule property and also for permanent injunction to
restrain the defendants from interfering with the possession and
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enjoyment of the plaintiffs. The plaint schedule consists of Ac.4-86 cents
of land in K.No.227 in S.No.172 of Kakkalapalli Village of Ananthapur
Mandal.
05. The trial Court decreed the suit vide judgment and decree dated
20.12.1996. The 2nd defendant preferred appeal in A.S.9/1997 on the file
of District Judge, Ananthapuram. Later, the appeal transferred to the
Addl.Senior Civil Judge, Ananthapuram and re-numbered as
A.S.79/2001. The learned Addl.Senior Civil Judge, Ananthapuram vide
judgment and decree dated 07.08.2002 partly allowed the appeal with
regard to Ac.0-86 cents of land, out of Ac.4-86 cents of land. Dismissed
the rest of the appeal. Therefore, the plaintiffs preferred the Second
Appeal, challenging the judgment and decree of the Addl. Senior Civil
Judge at Ananthapuram with respect to Ac.0-86 cents of land. The
2nd defendant did not prefer any Second Appeal regarding dismissal of
the 1st appeal with respect to Ac.4-00 of land.
PLEADINGS:
06. The case of the plaintiff is that plaintiff is owner of the plaint
schedule property. Originally it belongs to the 1st defendant; the
1st defendant sold an extent of Ac.4-50 cents of land, in S.No.172 to Sri
M.Nagendra Gowd, G.Subbarayudu and B.Hanumanthappa on
BVLNC,J S.A.No.354 OF 2003
Page 11 of 27 Dt: 03.07.202516.05.1998 and put them in possession; the 1st defendant permitted
purchasers to use the cart track existed on the northern side of the
remaining land; the purchasers have been using the cart track, as
conveyed under the sale deed;
Later, the 1st defendant executed a gift deed on 02.05.1972 in
favour of the plaintiff, the daughter-in-law of the 1st defendant for Ac.4-00
of land in S.No.172; the plaintiff accepted the gift on 02.05.1972; the
property was delivered to the plaintiff on the same day by the
1st defendant; the plaintiff has been in possession and enjoyment of the
land from the date of gift; the plaintiff also enjoying the remaining
Ac.0-86 cents land, in S.No.172 from the date of gift deed; the plaintiff
perfected her title to the said property, by adverse possession; the
plaintiff obtained a loan from Ananthapuram Co-operative Agriculture
Development Bank Limited, mortgaging the property, for the purpose of
digging well; the plaintiff has been cultivating the land personally; the
name of the plaintiff was also mutated in revenue records.
The 1st defendant died leaving the defendants No.2 to 4, as legal
representatives; there are no cordial terms between the plaintiff and the
defendants No.2 to 4; they are trying to interfere with the possession of
the plaintiff over the suit property; the plaintiff came to know that the
1st defendant cancelled the gift deed dated 02.05.1972, by a document
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dated 20.03.1991; the plaintiff also came to know that the 1st defendant
sold an extent of Ac.0-86 cents of land in favour of the 2nd defendant on
22.04.1991; the cancellation deed and the sale deed executed by the
1st defendant are sham and nominal documents; the plaintiff did not
know about the documents till the written statement filed by the
1st defendant.
07. The 1st defendant filed written statement, contending that the land
in S.No.172 belongs to the 1st defendant; he sold Ac.4-30 cents in
S.No.172, to M.Nagendra Gowd and others on 16.05.1998 and delivered
possession; the 1st defendant also provided right of cart track to
purchasers; the 1st defendant executed a gift deed on 02.05.1972 in
favour of the plaintiff, the daughter-in-law of the 1st defendant for Ac.4-00
in S.No.172; Possession was not delivered; the well has been in
existence for more than 25 years; it is in possession of the 1st defendant;
the allegation that the plaintiff perfected title for Ac.4-86 cents by
adverse possession is false. The 1st defendant sold the remaining 86
cents land in S.No.172 to the 2nd defendant on 22.04.1991 and delivered
possession.
The defendants No.3 and 4 remained exparte.
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ISSUES:
08. Basing on the above pleadings, the trial Court settled the
following issues for trial:
1. Whether the plaintiff is in possession of the suit land?
2. Whether the gift deed dated 02.05.1972 by defendant in
favour of plaintiff was not applicable (mistaken for accepted)
and acted upon?
3. Whether the registered deed of cancellation of gift dated
20.03.1991 by the defendant is binding on the plaintiff?
4. Whether the plaintiff is entitled for perpetual injunction as
prayed for?
5. To what relief?
On 05.09.1996, the following additional issues are framed:
1. Whether the sale deed dated 22.04.1991 executed by
1st defendant in favour of 2nd defendant is true, valid and
binding on the plaintiff?
2. Whether the 2nd defendant is in exclusive possession of the
suit property for an extent of Ac.0-86 cents in S.No.172 as
claimed by the defendant?
3. Whether the plaintiff is entitled for declaration of title as
prayed for?
EVIDENCE:
09. During trial, five witnesses were examined for the plaintiff, as
P.Ws-1 to 5 and eight documents marked as Exs.A-1 to A-8. Four
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witnesses were examined for the defendant as D.Ws-1 to 4 and 10
documents marked as Exs.B-1 to B-10.
10. P.W-1 is the plaintiff. P.W-2 is the husband of the plaintiff. P.W-3
is southern side neighbor of the suit land. P.W-4 is purchaser of Ac.4.50
cents in S.No.172. P.W-5 is attestor of Ex.A-3 will. D.W-1 is
1st defendant. The 2nd defendant was examined as D.W-2. D.W-3 is the
husband of D.W-2. D.W-4 is Village Administrative Officer of
Kakkalapalli Village. Ex.A-1 is the registered gift deed executed by the
1st defendant in favour of the plaintiff. Ex.A-2 is the copy of sale deed
executed by the 1st defendant in favour of the 2nd defendant. Ex.A-3 is
the registration extract of registered will. Ex.A-4 is receipt. Exs.A-5 and
A-6 are demand notice. Ex.A-7 is certificate issued by Bank. Ex.A-8 is
10-1 account extract issued by Mandal Revenue Officer, Ananthapur.
Ex.B-1 is the registered cancellation deed. Ex.B-2 is the registered sale
deed executed by the 1st defendant in favour of the 2nd defendant.
Exs.B-3 and B-4 are the land revenue receipts. Ex.B-5 is the
encumbrance certificate. Ex.B-6 is Pattadar passbook. Ex.B-7 is R.O.R.
Title Book issued by R.D.O., Ananthapur. Exs.B-8 and B-9 are certified
copies of No.2 Adangal for fasli 1400 and 1402 respectively. Ex.B-10 is
registration extract of a mortgage deed executed in favour of
Cooperative Central Bank, Ananthapur.
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FINDING OF THE TRIAL COURT:
11. The trial Court on consideration of the above oral and
documentary evidence, found that Ex.A-1 gift deed executed in favour of
the plaintiff is valid and binding on the 1st defendant. Therefore, the
1st defendant cannot cancel it, by executing Ex.B-1 cancellation deed.
The trial Court further held that the plaintiff is in possession of the suit
land i.e., Ac.4-00 conveyed under gift deed and also Ac.0-86 cents, as
claimed by the plaintiff. Therefore, decreed the suit for declaration of title
and permanent injunction as prayed for.
FINDING OF THE FIRST APPELLATE COURT:
12. The Addl.Senior Civil Judge at Ananthapur, on consideration of
the above evidence found that the plaintiff proved her title and
possession over Ac.4-00 of land conveyed under Ex.A-1 gift deed, but
she failed to prove her title and possession of Ac.0-86 cents of land,
covered by Ex.B-2 sale deed executed in favour of the 2nd defendant.
Hence, partly allowed the appeal in respect of Ac.0-86 cents of land.
13. Challenging the above judgment of the First Appellate Court, the
Second Appeal is preferred by the plaintiff. The Second Appeal was
admitted on 17.06.2003.
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SUBSTANTIAL QUESTION OF LAW:
14. Basing on the 2 to 6 grounds raised in the grounds of appeal,
the following substantial question of law would arise in the Second
Appeal, for consideration:
“Whether the I Appellate Court failed to apply the principles
of adverse possession? If so, wrongly held that the plaintiff
failed to prove adverse possession over Ac.0-86 cents of
land”?
15. CONTENTIONS OF THE RESPECTIVE COUNSEL IN THE
SECOND APPEAL:
The learned counsel for the appellant/plaintiff would submit that
the judgment of the 1st Appellate Court is contrary to the evidence and
law. He would further submit that the 1st Appellate Court wrongly
interpreted recitals of Ex.A-3 will, though it refers to Ac.4-50 cents, as
gifted to the plaintiff. The 1st Appellate Court did not apply law of
adverse possession to the facts properly, and therefore came to a
wrong conclusion.
16. The learned counsel for the respondent/2nd defendant
contended that Ex.A-1 was executed only for Ac.4-00. The plaintiff
claimed title to the remaining Ac.0-86 cents of land, by adverse
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possession, but no evidence was placed to prove the plea of adverse
possession. The burden of proof is on the person, who pleads adverse
possession.
In support of his arguments, he relied on judgment of the
Hon’ble Apex Court in the case of M.Radheshyamlal Vs. V.Sandhya
and another1. The 1st Appellate Court came to a right conclusion that
the plaintiff failed to prove possession over Ac.0-86 cents of land.
Hence, there are no grounds to interfere with the findings of the
1st Appellate Court.
ANALYSIS:
17. The trial Court and the 1st Appellate Court on consideration of
the evidence placed by the plaintiff and the 2nd defendant, concurrently
found that the 1st defendant is the father of defendants No.3 and 4.
The plaintiff is wife of the 3rd defendant; 2nd defendant claims to have
been purchased Ac.0-86 cents of land from the 1st defendant under a
registered sale deed dated 22.04.1991 vide Ex.B-2; The 1st defendant
denied the entire suit claim, whereas the 2nd defendant restricted his
claim to Ac.0-86 cents of land purchased by hum under Ex.B-2 from
the 1st defendant. With regard to claim of the 1st defendant to Ac.4-00
of land covered under the gift deed was elaborately dealt by the trial
1
2024 SCC Online SC 318
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Court and the 1st Appellate Court and found that the plaintiff is in
possession of 4 Acres, conveyed under the gift deed; In those
circumstances, cancellation of Ex.A-1 through Ex.B-1 does not arise;
This finding of the trail Court and 1st Appellate Court was not
challenged by the 2nd defendant, or the other defendants.
18. The 1st Appellate Court thoroughly examined the plaintiff’s case
about title and possession over the remaining Ac.0-86 cents of land, in
view of the plea of the 2nd defendant. The 1st Appellate Court found
that the plaintiff claimed title to the said property by adverse
possession; She did not file any document to establish her possession
till 03.05.1984; The burden is on the plaintiff to prove the plea of
adverse possession; The plaintiff did not file any document from
03.05.1972 to the date of filing of the suit to establish her possession
over Ac.0-86 cents of land; The documents filed by the plaintiff
regarding mortgage transaction do not contain the details of the land
mortgaged to the bank; Ex.A-3 will made a reference to the gift deed
in favour of the plaintiff; But the extent of land mentioned as Ac.4-50
cents, without mentioning the survey number; The extent of land
conveyed under Ex.A-1 is only Ac.4-00; Therefore, Ex.A-3 does not
confer any title to the plaintiff over Ac.0-86 cents of land.
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19. It is an admitted case of both parties that the 1st defendant was
having Ac.9-36 cents of land in S.No.172. He sold Ac.4-50 cents of
land under Ex.A-2 to third parties in the year 1968. The extent of land
covered under Ex.A-1 gift deed is only Ac.4-00. So, the 1st defendant
is still having Ac.0-86 cents of land. The plaintiff claims possession
over it also from the date of gift deed and claims title to the said
Ac.0-86 cents also.
The burden of proof in a suit for declaration of title over an
immovable property is upon the plaintiff. The evidence placed by the
plaintiff falls short of proving her possession over the said land, as
rightly observed by the lower appellate Court. She failed to prove
possession during the relevant period, having set up plea of adverse
possession. Hence, she is not entitled to the relief of declaration extent
for Ac.0-86 cents of land, covered by Ex.B-2 executed in favour of the
2nd defendant the by the owner 1st defendant. Ex A3 will not improve
her case, when gift deed is only for Ac.4-00. Bank documents would
not disclose the extent of the land as Ac.4-86 cents. Revenue
accounts will not create any right in favour of the plaintiff, when gift
deed is only for four acres. No evidence is forthcoming to establish
that plaintiff has been possession of Ac.0-86 cents also in her own
right and to the knowledge of the 1st defendant.
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20. The Hon’ble Supreme Court in the case of Anathula Sudhakar
Vs. P.Buchi Reddy (dead) by L.Rs. and others2, held that “where a
cloud is raised over plaintiff’s title and possession, in a suit for
declaration and injunction, the burden is on the plaintiff to prove the
title and possession”.
21. Undisputedly, the extent of land conveyed under Ex. A-1 gift
deed is Ac.4-00 only. The plaintiff claimed title for Ac.4-86 cents. The
plaintiff claimed Ac.0-86 cents of land based on plea of adverse
possession.
In a suit for declaration of title and permanent injunction, the
burden is on the plaintiff to prove the title as well possession over the
property, to succeed in the suit. A person who sets up the plea of
adverse possession must establish possession, which shall be
peaceful, open and continuous possession, to meet the requirement of
nec vi, nec claim and nec pre-cario. The possession must be
adequate, in continuity and in the public; because the possession has
to be with in the knowledge of the true owner, in order to be adverse.
These requirements shall be established by adequate pleadings and
sufficient evidence.
2 AIR 2008 SC 2033 BVLNC,J S.A.No.354 OF 2003 Page 21 of 27 Dt: 03.07.2025
22. The Hon’ble Supreme Court in M.Siddiq (Ram Janmabhumi
Temple-5 J.) Vs. Suresh Das3 case, on adverse possession, in
paragraphs 1142 and 1143 held as follows:
“A plea of adverse possession is founded on the acceptance that
ownership of the property vests in another against whom the
claimant asserts a possession adverse to the title of the other.
Possession is adverse in the sense that it is contrary to the
acknowledged title in the other person against whom it is claimed.
Evidently, therefore, the plaintiffs in Suit 4 ought to be cognizant of
the fact that any claim of adverse possession against the Hindus
or the temple would amount to an acceptance of a title in the
latter. Dr Dhavan has submitted that this plea is a subsidiary or
alternate plea upon which it is not necessary for the plaintiffs to
stand in the event that their main plea on title is held to be
established on evidence. It becomes then necessary to assess as
to whether the claim of adverse possession has been
established”.
“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
claim and nec precario’. To substantiate a part of 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.
3 2020 1 SCC 1 BVLNC,J S.A.No.354 OF 2003 Page 22 of 27 Dt: 03.07.2025
These requirements have to be duly established first by adequate
pleadings and second by leading sufficient evidence. Evidence, it
is well settled, can only be adduced with reference to matters
which are pleaded in a civil suit and in the absence of an
adequate pleading, evidence by itself cannot supply the deficiency
of a pleaded case. Reading paragraph 11(a), it becomes evident
that beyond stating that the Muslims have been in long exclusive
and continuous possession beginning from the time when the
Mosque was built and until it was desecrated, no factual basis has
been furnished. This is not merely a matter of details or evidence.
A plea of adverse possession seeks to defeat the rights of the true
owner and the law is not readily accepting of such a case unless a
clear and cogent basis has been made out in the pleadings and
established in the evidence”.
23. The Hon’ble Apex Court also considered the principles of law on
plea of adverse possession, in Karnataka Board of Wakf Vs.
Government of India and others4 in para 11, held as follows:
“In the eye of law, an owner would be deemed to be in
possession of a property so long as there is no intrusion. Non-
use of the property 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 property and asserts a right over it.
Adverse possession is a hostile possession by clearly asserting
hostile title in denial of the title of true owner. It is a well- settled
principle that a party claiming adverse possession must prove4
2004 (10) SCC 779
BVLNC,J S.A.No.354 OF 2003
Page 23 of 27 Dt: 03.07.2025that 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 Sakinal AIR 1964 SC 1254, Parsinni v. Sukhi
(1993) 4 SCC 375 and D N Venkatarayappa v. State of
Karnataka (1997) 7 SCC 567). 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 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 true
owner, it is for him to clearly plead and establish all facts
necessary to establish his adverse possession. (Dr. Mahesh
Chand Sharma v. Raj Kumari Sharma (1996) 8 SCC 128″.
24. The Hon’ble Supreme Court in M.Radheshyamlal Vs.
V.Sandhya and another etc., considered the above judgments, and
in para 12 held as follows:
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“Therefore, to prove the plea of adverse possession: –
(a) The plaintiff must plead and prove that he was claiming
possession adverse to the true owner;
(b) The plaintiff must plead and establish that the factum of his
long and continuous possession was known to the true owner;
(c) The plaintiff must also plead and establish when he came into
possession; and
(d) The plaintiff must establish that his possession was open and
undisturbed.
It is a settled law that by pleading adverse possession, a party
seeks to defeat the rights of the true owner, and therefore, there is
no equity in his favour. After all, the plea is based on continuous
wrongful possession for a period of more than 12 years”.
Therefore, the facts constituting the ingredients of adverse
possession must be pleaded and proved by the plaintiff.
25. Therefore, the facts constituting the ingredients of adverse
possession must be pleaded and proved by the plaintiff. In the case on
hand, there is no dispute that the original owner is the 1st defendant for
the land in S.No.172. The total extent of land in S.No.172 is Ac.9-36
cents. The 1st defendant executed Ex.A-1 in favour of the plaintiff on
02.05.1972 for Ac.4-00 of land only. Earlier to this, he alienated
Ac.4-50 cents out of Ac.9-36 cents of land in favour of Sri M.Nagendra
Gowd and two others on 16.05.1962. Therefore, the remaining extent
BVLNC,J S.A.No.354 OF 2003
Page 25 of 27 Dt: 03.07.2025
of land held by the 1st defendant is Ac.0-86 cents of land. The
1st defendant executed sale deed in favour of the 2nd defendant under
Ex.B-2 on 22.04.1991.
26. The plaintiff shall prove that she has been in possession and
enjoyment of the said Ac.0-86 cents of land from the date of gift deed
i.e., Ex.A-1, as owner, and it is known to the 1st defendant. The plaintiff
must also prove that when she came into possession, and that her
possession is open and undisturbed.
27. The learned counsel for plaintiff mainly relied on Ex.A-3 will be
executed by the 1st defendant in the year 1986. A reference was made
to the gift deed. The extent of land was mentioned as Ac.4-50 cents.
No survey number was mentioned. There is no dispute that gift deed
was executed only for Ac.4-00 only. Basing on this sole sentence in
Ex.A-3, it cannot be presumed that the plaintiff has been in possession
of Ac.0-86 cents of land from the date of Ex.A-1 gift deed as owner, to
the knowledge of the 1st defendant, to claim adverse possession. No
positive evidence was adduced by the plaintiff to prove the plea of
adverse possession in respect of Ac.0-86 cents of land.
28. In the light of above discussion, the finding of the 1st Appellate
Court on this point does not warrant interference of this Court.
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CONCLUSION:
29. In the light of foregoing discussion, the Second Appeal is liable
to be dismissed.
RESULT:
30. In the result, the Second Appeal is dismissed with costs of the
2nd defendant throughout.
As a sequel, Interlacutory applications pending, if any, shall stand
closed.
______________________________
JUSTICE B.V.L.N. CHAKRAVARTHI.
L.R. copy is to be marked
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THE HON’BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
01
S.A.No.354 OF 2003
Note: Mark L.R. Copy
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03rd July, 2025
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