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J. B. PARDIWALA, R. MAHADEVAN
Mallavva – Appellant
Versus
Kalsammanavara Kalamma (Since Dead) By Legal Heirs – Respondent
JUDGMENT :
J.B. PARDIWALA, J.
1. Leave granted.
2. This appeal arises from the judgment and order passed by the High Court of Karnataka, Dharwad Bench dated 13.06.02019 in Regular Second Appeal No. 100071 of 2019 by which the Second Appeal filed by the appellants herein (original defendants) came to be dismissed thereby affirming the judgment and order passed by the First Appellate Court allowing the appeal filed by the respondents herein(original plaintiffs) and decreeing the suit for declaration of title and possession.
3. The facts giving rise to this appeal may be summarised as under:
b. The original plaintiff Late Kalsammanavara Kalamma instituted Original Suit No. 67 of 2011 in the Court of the Civil Judge and JFMC, Hadagali, seeking relief of declaration and injunction in respect of the suit property. In the said suit, the trial court framed the following issues:
“1. Whether the plaintiff proves that she is the absolute owner and in possession of the suit properties?
2. Whether the plaintiff proves that she
The suit for possession based on title is governed by Article 65 of the Limitation Act, allowing 12 years from the date of adverse possession, not Article 58.
The appellate court upheld that plaintiffs' title validly established, and amendments to pleadings for possession did not change the suit's nature, ensuring compliance with statutory limitation.
In property disputes, once a plaintiff proves title, the burden shifts to the defendant to establish adverse possession; failure to do so results in the plaintiff's claim being upheld.
Possession must be open, continuous, and adverse to establish adverse possession; failure to prove this invalidates claims of ownership.
Suit for possession – Counter claim - In the absence of a pleading, mere production of judgment will not be sufficient to record a finding as to whether the plaintiff ought to have sought for possess....
Point of Law : It is a well-settled principle of law that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuou....
The possession of the plaintiffs' predecessor-in-interest should be considered as the possession of the plaintiffs for the purpose of Article 142 of the Limitation Act, and the sale of immovable prop....
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