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SUPREME COURT OF INDIA
SANJAY KISHAN KAUL, AJAY RASTOGI, ANIRUDDHA BOSE, JJ.
Narasamma and Others – Appellants
Versus
A. Krishnappa (Dead) through LRs. – Respondent
Civil Appeal No. 2710 of 2010
Decided On : 26-08-2020
Adverse Possession – Conditions – Success of this plea requires the person claiming the same to prove that he is in possession and that his possession is peaceful, open and continuous – Possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to true owner – It must start with wrongful dispossession of rightful owner and be actual, visible, exclusive, hostile and continued over statutory period – On crucial issue of factual matrix regarding documents and conclusion to be drawn from them, both Courts are ad idem – Not only grave doubt has been thrown on story of appellants, but both Courts also record that documents sought to be propounded by appellants, i.e., Agreement of Sale, Power of Attorney and affidavit, have too many discrepancies to be treated worth their while – No reason to disturb these concurrent findings of Courts below – Once case of original defendant was that it is his wife who had derived title and alternative plea was of her adverse possession, then to establish that plea, she ought to have been examined – On failure to establish plea of title, it was necessary to prove as to from which date did possession of wife of defendant amount to a hostile possession in a peaceful, open and continuous manner – In order to establish adverse possession inquiry is required to be made into starting point of such adverse possession and when recorded owner got dispossessed would be crucial – Plea of adverse possession is lacking in all material particulars – Possession has to be in public and to knowledge of true owner as adverse and this is necessary as a plea of adverse possession seeks to defeat rights of true owner – Appeal dismissed with costs. (Paras 16, 24, 25, 28, 29, 34, 35, 36 and 39)
Facts of the case:
Title based on adverse possession. A plaint was laid before the City Civil Judge at Bangalore by predecessor-in-interest of respondents herein (original plaintiff) against predecessor-in-interest of the appellants herein(original defendant) under Order VII Rule 1 of the Code of Civil Procedure, 1908 in respect of the schedule property. Suit was resisted by the original defendant and a different narrative was sought to be set out. On the ownership of the property, same was denied as the original defendant disclaimed any knowledge of the same. Appeal was allowed by impugned judgment decreeing the suit with costs against the legal heirs of the original defendant giving them time to hand over vacant and peaceful possession of the property within three months from the date of the judgment.
Findings of Court:
Plea of original defendant that his wife possessed title was not established on the basis of the documents sought to be propounded. It is also relevant that none of the parties chose to implead her as a party. Once the case of the original defendant was that it is his wife who had derived title, and alternative plea was of her adverse possession, then to establish that plea, at least, she ought to have been examined.
Result : Appeal dismissed with costs.
JUDGMENT :
SANJAY KISHAN KAUL, J.
1. A plaint was laid before the City Civil Judge at Bangalore by A. Krishnappa, predecessor-in-interest of the respondents herein (original plaintiff) against Sri. Jayaram, predecessor-in-interest of the appellants herein (original defendant) under Order VII Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘said Code’) being O.S. No. 4268/1989 in respect of the schedule property to the plaint being described as a portion of property bearing Revenue Site No. 9, part of Corporation No. 2, 2nd main road, 1st block, Goraguntepalya, Bangalore-22 (hereinafter referred to as ‘schedule property’).
2. The original plaintiff stated that he and his late brother, Mr. A. Muniswamappa, were full and absolute owners of agricultural land measuring 2 acres and 22 guntas in Survey No. 8/4 of Goraguntepalya, Yeswanthpur Hobli, Bangalore North Taluk. The said land was an ancestral property and in a family partition drawn among the plaintiff’s uncles, the plaintiff and his elder brother by a registered Partition Deed dated 29.8.1956, the said land fell to the share of the plaintiff and his elder brother, Mr. A. Muniswamappa. In a portion of the said land, the two brothers formed a revenue layout and sold the revenue sites to different persons, while retaining some of the sites. The area was subsequently included within the limits of the Corporation of the City of Bangalore (hereinafter referred to as ‘the Corporation’) for which betterment charges and other taxes were collected by the Corporation. Mr. A. Muniswamappa passed away on 4.9.1988 and was survived by his two wives but no children. The wives were stated to be residing in the residence of the original plaintiff.
3. The original plaintiff stated that the Revenue Sites bearing Nos.8 and 9 were assigned as Site No. 2 by the Corporation, which collected betterment charges of Rs. 4,320/- for both the sites which fell under the aforementioned common Site No. 2. The khata of the property was made out in the name of the original plaintiff who paid taxes and, thus, he claimed full and absolute ownership of the revenue site in question, which was being maintained by him as a karta of the joint family comprising of himself and his late brother, Mr. A. Muniswamappa.
4. It is the case of the original plaintiff that during the lifetime of his late brother, Mr. A. Muniswamappa, the original defendant approached them after having resigned from his job in B.H.E.L. to permit him to occupy the schedule property, to facilitate him to eke out his livelihood by running a fuel depot. This was acceded to and the portion of the land was given free of rent to the original defendant on the condition that whenever original plaintiff and his elder brother directed the defendant to vacate the schedule property, he would oblige. This arrangement was accepted by the original defendant for running a fuel depot as a licensee. This arrangement is stated to have continued till before the plaint was instituted, when the original defendant made an attempt to lease out the schedule property. It is conceded that the original defendant was permitted to put a temporary structure for running a fuel depot on the specific condition that when he was called upon to vacate that land, he would remove the structure. In view of the endeavour of the original defendant to induct third parties in the schedule property, the original plaintiff got issued a legal notice dated 3.7.1989, calling upon him to surrender possession and withdrawing permission to occupy the same. There was no response to the notice, and thus, a suit was laid on these allegations seeking a decree in the following terms:
(b) Directing the defendant to remove the temporary structure put up by him on the schedule property and put the plaintiff in vacant possession of the schedule property.
(c) To pay the mesne profits from the date of suit till th
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