Important point
Adverse possession is a question of fact which has to be specifically pleaded and proved and in absence of specific plea and issue and evidence, findings of Court on the point could not be sustained.

Headnote:Constitution of India—Article 136 —Suit for declaration that plaintiff-respondent was owner of suit site and to set aside the sale deed executed by Development Authority in favour of appellant—Trial Court dismissed suit holding that sale deed executed by plaintiff was not outcome of fraud or misrepresentation and plaintiff could not challenge the sale deed executed by Development Authority in favour of appellant—High Court set aside trial Court’s judgment and decreed suit taking a view that Development Authority had failed to issue notice to plaintiff before executing sale deed in favour of appellant and that plaintiff had perfected title by adverse possession—Appeal—Plea of non-issuance of notice by Development Authority before executing sale deed in favour of appellant was neither pleaded nor raised before trial Court but was raised only before High Court—High Court also ignored evidence on the point and erred in holding that Authority did not issue notice to plaintiff—Plea of adverse possession was taken vaguely and no issue had been framed—High Court was wrong in its finding on adverse possession—Impugned judgment of High Court was liable to be set aside and that of trial Court to be restored. (Paras 10 to 13)

Judgment

Bhan, J.—This appeal by grant of leave has been filed by defendant No. 2, (hereinafter referred to “the Appellant”) against the judgment and decree of the High Court of Karnataka at Bangalore dated 13.02.2003 in Regular First Appeal No. 388 of 1996 whereby and whereunder the High Court while setting aside the judgment and decree of the trial Court decreed the suit filed by the plaintiff, 1st respondent herein for declaration of ownership of suit property as well as for setting aside the sale deed dated 21.05.1983 executed by the City Improvement Trust Board (CITB), now Bangalore Development Authority (BDA) respondent No. 2 herein. The High Court held the action of the BDA in executing the sale deed in favour of the appellant as void and not binding on respondent No. 1. Further, the BDA has been restrained from interfering with the peaceful possession and enjoyment of the property by respondent No. 1.

2. Plaintiff-respondent No. 1 is proceeded ex-parte since she has chosen not to enter appearance despite service of notice.

3. Plaintiff-respondent filed a suit seeking declaration that she is the owner of the site bearing No. 115, situated at Jabbar Block. Rajamahal Cuttahalli Bangalore 560 003, hereinafter referred to as “the suite property” and for setting aside the sale deed dated 21.05.1983 executed by the BDA in favour of the appellant being illegal, null and void and not binding on her. She also sought for an order of permanent injunction restraining the BDA from interfering with her possession. In the suit, plaintiff claims herself to be in possession of the suit property since 1940, same being allotted to her by erstwhile CITB, now BDA vide possession certificate dated 27.01.1971 and actual possession being delivered to her on 06.05.1971. It was averred that she had perfected her title to the suit property by virtue of adverse possession. That she created a charge on suit property and borrowed Rs. 2,000/- from one Krishnappa, who in place of mortgage deed, by cheating, got executed a sale deed. Later, Krishnappa fraudulently sold away the property to one Eramma who in turn sold the same to the appellant. That on an application filed by the appellant, the BDA regularised the sale and executed the sale deed dated 21.05.1983 in her favour. That soon after coming to know about the sale made in favour of the appellant, a notice under Section 64 of Bangalore Development Authority Act, (`the Act’) was got issued on 04.06.1988 to BDA informing about the nature of wrong committed by it. It is her case that since the BDA failed to take any action on the notice issued, the present suit was filed.

4. BDA in its written statement denied the receipt of alleged notice dated 04.06.1988 issued under Section 64 of the Act. It was contended that the suit property was allotted to plaintiff and on payment of the full value thereof a lease-cum-sale deed was executed in her favour on 08.01.1971 along with possession certificate dated 27.01.1971. That plaintiff sold the suit property to one V. Krishnappa vide registered sale deed dated 13.01.1975 who in turn sold the same to one Eramma on 05.12.1979. Eramma, in turn, sold the suit property to the appellant on 17.05.1982. That on a representation made by the appellant, to grant a transfer of site from the name of original purchaser to her name, suit property was transferred in her name on 30.03.1983. Sale deed was executed in favour of the appellant on 21.05.1983.

5. Appellant in her separate written statement denied the plaint averments contending that she is the owner of suit property having purchased the same and in view of the sale deed dated 21.05.1983 executed in her favour. That one Bajappa and his supporters tried to interfere with her peaceful possession and enjoyment of the property against which she filed O.S. No. 1522 of 1984 and obtained a decree of injunction. That in the said suit, plaintiff made an attempt to implead herself as a party but her application was rejected.

6. Trial

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2005 Supreme(SC) 815

Important pointAdverse possession is a question of fact which has to be specifically pleaded and proved and in absence of specific plea and issue and evidence, findings of Court on the point could not be sustained.

Important point
Adverse possession is a question of fact which has to be specifically pleaded and proved and in absence of specific plea and issue and evidence, findings of Court on the point could not be sustained.