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SUPREME COURT OF INDIA
DEEPAK GUPTA, ANIRUDDHA BOSE, JJ.
Krishnamurthy S. Setlur (D) by Lrs. – Appellants
Versus
O.V. Narasimha Setty (D) by Lrs. – Respondents
Civil Appeal No. 6111 of 2009
Decided on : 26-09-2019
Adverse Possession – Acquisition of Title – Plaintiff can claim title to property based on adverse possession – Presumption of truth is attached to revenue record which has not been rebutted – High Court rightly held that in proceedings decided in favour of KS, HR or his legal representatives were not made parties – However, High Court lost sight of fact that in proceedings filed by AR, KS was not impleaded as a party though his name was shown in revenue record – Reliance cannot be placed on either of documents in which all parties were not duly represented – KS is not owner of property but he had been shown to be in possession pursuant to application and order of Tehsildar – This possession was adverse to true owner – It was openly hostile to claim of HR and his legal representatives and they never filed a suit for possession of property – Once it is held that KS was in possession of suit property, consequence will be that he is in adverse possession – Legal representatives of HR have failed to show how they obtained possession from HR – Even, according to case of HR, it was AR who was in possession as a tenant – High Court gravely erred in coming to conclusion that KS was not in possession of suit property when suit was filed – He may have been dispossessed after filing of suit but that has no effect on the case – Judgment and decree of High Court set aside and that of trial court restored. (Paras 14, 15, 17 and 18)
Facts of the Case:
In 1949, predecessor-in-interest of appellants, along with his brother, filed a suit against predecessor-in-interest of contesting respondents seeking declaration that suit property belonged to the plaintiff. It was urged that though the property had been purchased by predecessor-in-interest of appellants. With his own money, the sale deed was effected in favour of predecessor-in-interest of contesting respondents, who was nothing more than a Benamidar of predecessor-in-interest of appellants. After remand, appeal filed by predecessor-in-interest of contesting respondents was again dismissed by the first appellate court confirming the judgment and decree of the trial court and tenant of predecessor-in-interest of appellants was held to be tenant in possession of the suit land. Admittedly, no appeal against the said judgment has been filed and the same had become final. Issues are whether predecessor-in-interest of appellants was in possession of land, was his possession hostile to true owner and has this adverse possession matured into ownership?
Findings of the Court:
Legal heirs of predecessor-in-interest of contesting respondents miserably failed to prove how they came into possession of the suit property. High Court gravely erred in coming to conclusion that predecessor-in-interest of appellants was not in possession of the suit property when the suit was filed. He may have been dispossessed after filing of the suit but that has no effect on the case.
Result : Appeal allowed.
JUDGMENT :
Deepak Gupta, J.
By this judgment we hope to bring quietus to a dispute which has its genesis to facts prior to the independence of the country. The parties through their predecessors have been litigating for more than 70 years.
2. Krishnamurthy S. Setlur (hereinafter referred to as ‘KS’), was the predecessor-in-interest of the appellants. He was obviously a very rich landlord. H.R. Narayana Iyengar (hereinafter referred to as ‘HR’), was the predecessor-in-interest of the contesting respondents. It appears that HR used to manage the properties of KS. KS had executed a general power of attorney in favour of HR to manage the properties and he used to manage and sell properties on behalf of KS.
3. In 1942 KS, through his general power of attorney HR, purchased the suit properties from the then land owner. On 22.10.1946, KS revoked the power of attorney. In 1947, HR filed a suit for recovery of certain amounts which he alleged that he had incurred to recover the property of KS. In 1948, KS filed a suit against HR seeking return of some documents. These two suits had no direct bearing on the present case, but have been referred to bring out the history of the dispute. In 1949, KS along with his brother, filed a suit against HR seeking a declaration that the suit property belonged to the plaintiff. It was urged that though the property had been purchased by KS with his own money, the sale deed was effected in favour of HR, who was nothing more than a benamidar of KS. This suit which was originally the Suit No.101/1948-1949 was later numbered as O.S. 94 of 1956.
4. About the same time, HR filed a suit being O.S. No.79 of 1949 seeking injunction against KS and the tenant K. Achyuthananatha Raju (hereinafter referred to as ‘AR’). The stand of HR was that earlier he was in possession of the suit land as a lessee and later vide sale deed executed in 1942, he had taken possession of the suit land and he sought an injunction restraining KS and AR from interfering in the suit land. KS took the plea that he was the true owner of the property and AR was the tenant. The trial court dismissed the suit filed by HR holding that HR was not in possession of the suit property. The trial court held that AR was a tenant under KS. However, the trial court also observed that HR could file a suit for possession. This judgment was delivered on 28.02.1951. The trial court specifically held that it could not go into the issue of title in the said suit. HR filed an appeal against the said judgment. In the first round, the appeal was allowed by the first appellate court but on an appeal filed by KS in the High Court (being RSA No.338 of 1953), the High Court vide judgment dated 07.08.1959, remanded the matter to the first appellate court for rehearing. During the pendency of the appeal after remand, HR died and his legal representatives were brought on record. After remand, the appeal filed by HR was again dismissed by the first appellate court confirming the judgment and decree of the trial court and AR was held to be tenant in possession of the suit land. Admittedly, no appeal against the said judgment has been filed and the same had become final.
5. According to KS and the appellants before us, since the trial court had held that KS was in constructive possession of the property through his tenant AR, confirmation of this decree meant that the Appellate Court had affirmed this finding. According to them, this finding is binding on all the parties.
6. During the pendency of the case filed by HR, as pointed out above, KS had also filed a suit which was later renumbered O.S. 94 of 1956. This suit was dismissed on 10.11.1961. It was held that KS had failed to prove that HR had purchased the properties as benamidar of KS. His claim for ownership to the properties was rejected. Appeal was filed by KS against this judgment which was dismissed in default on 27.07.1966 and the same attained finality.
7. According to KS, on 16.04.1962, he entered into a settlemen
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