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1987 Supreme(Kar) 358
Karnataka High Court
Thimaiah - Appellant
Versus
Madegowda - Respondent
Decided On : 11-13-87
Acquisition of title by adverse possession can occur even in the presence of decrees in favor of the true owner, if the adverse possession is uninterrupted and hostile for the statutory period.
Headnote:
Adverse Possession - Property Dispute - [Transfer of Property Act, Section 65, Limitation Act, Articles 61 and 65] - The court discussed the adverse possession of the defendant, acquisition of title by adverse possession, and the effect of decrees on adverse possession. The court found that the defendant had acquired title by adverse possession, resulting in the extinguishment of the plaintiffs' title to the suit properties.
Fact of the Case:
The plaintiffs sought possession of two pieces of land, which had been the subject of litigation for over 35 years. The defendant had successfully resisted the plaintiffs' attempts to recover possession through a series of legal proceedings.
Finding of the Court:
The court found that the defendant had acquired title by adverse possession, resulting in the extinguishment of the plaintiffs' title to the suit properties.
Issues: 1) Whether the defendant was entitled to raise the plea of adverse possession after earlier contending that the plaintiffs should seek relief of partition and possession. 2) Whether the defendant had established adverse possession despite decrees in favor of the plaintiffs.
Ratio Decidendi: The court held that the defendant had acquired title by adverse possession, as her possession had been uninterrupted and hostile to the plaintiffs for over 12 years, despite decrees in favor of the plaintiffs.
Final Decision: The appeal was dismissed, and the parties were ordered to bear their own costs in the Court.
( 1 ) THIS second appeal is at the instance of the plaintiffs in O. S. No. 178 of 1971 and is directed against the differing judgments of the two courts below.
( 2 ) THIS case with a very long and checkered career has brought little solace to the plaintiffs who by the mselves and through their predecessor-in-interest have been battling for possession of two small bits of lands one measuring 12 guntas and another measuring I acre 20 guntas situate in the village Begur at Channapatna taluk within the rural district of Bangalore, from the year 1951-52 but have not been able to call it a day even after 35 years of incessant litigation carried on from the portals of the Munsiff's court at Ramanagaram to this Court, where it is making its appearance for the third time.
( 3 ) THIS ill-fated litigation began with the purchase of these two lands in survey No. 8/1 by one Thimmaiah, maternal-grand- father of the plaintiffs, (parties will be referred to as plaintiffs and defendant in the course of this judgment) in a court auction sale, pursuant to which he obtained possession of the same on 22-6-1942. It is common ground that thereafter Thimmaiah leased the suit properties to one Karigowda under a registered sale (Sic) deed dt. 10-2-1943 for a period of five years. It transpired subsequently that Madegowda, the husband of the defendant Smt. Ningamma, took possession of the properties from Karigowda by colluding with him and thereafter refused to give it up on a demand made by Thimmaiah and, therefore, Thimmaiah had to file a suit in O. S. No. 583/51-52 in the court of the Munsiff at Ramanagaram seeking declaration of his title to the properties and for possession thereof, both from Madegowda and the lessee Karigowda.
( 4 ) IN the suit, Karigowda, having remained ex parte, the same was contested only by Madegowda who lost it before the Munsiff, in that the suit stood decreed by the judgment of the Court made on 30-7-1953.
( 5 ) FROM that judgment and decree of the Munsiff, Madegowda, preferred an appeal to the Court of the subordinate Judge at Bangalore in R. A. No. 260/1952 without any success. The appeal having stood dismissed by the subordinate Judge on 21-6-1954, the said Madegowda, preferred a second appeal to this Court in R. S. A. 122 of 1955 which was dismissed by this Court by order dt. 9-4-1958.
( 6 ) FOLLOWING the dismissal of the second appeal as aforesaid the decree-holder thimmaiah sued out execution for recovery of possession of the suit properties by making as many as four execution applications in Ex. Nos. 372/57, 646/1960, 765/1962 and 259/1963. In the last of the execution cases to wit - Ex. No. 259/1963 there was a change in the array of parties because by then the decree-holder Thimmaiah, who perhaps had got tired of the confrontation with the judgment debtor Madaiah, Gowda had assigned the decree in favour of Boraiah, stated to be his son-in-law and during the pendency of the execution case 259 of 1963 the Court ordered the bringing on record the assignee-decree holder with a direction to him to continue the execution proceedings.
( 7 ) BY the date of that order made on the 26th August, 1967 Madegowda Judgment-Debtor, having died, his wife Ningamma the defendant herein came on record and the first thing she did was to challenge the order of the Munsiff, made on the 26th August, 1967 permitting the assignee decree-holder to come on record with leave to prosecute the execution case further. That challenge by Ningamma was in Execution R. A. 146 of 1967 before the Civil Judge and was eventually dismissed on 29-2-1968. Notwithstanding the said dismissal Ningamma brought it up to this Court in Ex. S. A. 80 of 1968 which resulted in 4 remit of the case back to the Munsiff. After remit of the case, the judgment debtor Ningam ma raised a further objection asserting that possession of the properties cannot be delivered without a partition of the suit properties. The learned Munsiff, who considered that obj
