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2015 Supreme(Kar) 1203
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
S. Abdul Nazeer, J.
S.D. Nagaraju and Ors. – Appellants
Vs.
Sri Shivaganga Education and Charitable Trust (R) and Ors. – Respondent
Regular Second Appeal No. 1832/2011 (DEC/INJ)
Decided On : 11-08-2015
For the Appellant : Padmanabha Mahale, Sr. Adv. for L. Rajanna, Advs.
For the Respondents: M. Shivppa, Sr. Adv. for B.S. Hadimani, Adv.
Headnote:ADVERSE POSSESSION - Alternative plea: [S. Abdul Nazeer, J] Alternative plea as to perfecting title by adverse possession - Held, Plaintiff has established title to the suit schedule properties - alternative plea of the defendants that they have perfected their title by adverse possession - Held, It is well established that plea of adverse possession is not a pure question of law but a mixed question of fact and law. Therefore, a person, who claims adverse possession should plead and establish on what date he came into possession, what was the nature of his possession, whether factum possession was known to the other party, how long his possession has continued and his possession was open and undisturbed.
LIFE INSURANCE CORPORATION ACT, 1956 - Article 65: [S. Abdul Nazeer, J] Adverse possession - Held, it is also well established that in a suit falling under Article 65 of the Limitation Act, plaintiff must establish his title to the property. He need not prove that he was in possession within 12 years. When the plaintiff has established his title to a land, the burden of proving that he has lost that title by reason of the adverse possession of the defendant lies upon the defendant. If the defendant fails to prove that he has been in adverse possession for more than 12 years, the plaintiff is entitled to succeed on the strength of his title. A person alleging that he has become owner of immovable property by adverse possession must establish that he was in possession of the property peaceably, openly and in assertion of a title hostile to the real owner. Stricter proof is required to establish acquisition of title by adverse possession for the statutory period.
SPECIFIC RELIEF ACT,1963 - Section 34: [S. Abdul Nazeer, J] Suit for declaration - Defendants taking plea as to adverse possession, permissive possession - They are totally analogous or inconsistent - They being diametrically opposite to each other cannot go hand in hand. The defendants have right to take up inconsistent pleas in any suit. But, it does not mean that they are at liberty to take up any inconsistent pleas which are capable of eliminating or demolishing one another.
S. Abdul Nazeer, J.
1. This appeal is directed against the judgment and decree in R.A. No. 125/2010 dated 13.6.2011 on the file of the II Additional District and Sessions Judge, Tumkur.
2. Respondent No. 1 herein was the plaintiff in the suit O.S. No. 122/2005 on the file of the Senior Civil Judge at Sira. The appellants and respondent Nos. 2 to 4 were the defendants. For the sake of convenience, the parties are referred to by their respective ranking before the trial Court.
3. The plaintiff filed the above suit for declaration that it is the owner of the suit schedule properties by cancelling the sale deeds executed by the 5th defendant in favour of defendant Nos. 1 to 3 dated 14.1.2000 and 22.5.2000 and for permanent injunction restraining the defendants, their agents, servants or workmen and all others claiming through them from interfering with its peaceful possession and enjoyment of the suit schedule properties and for certain other reliefs.
4. According to the plaintiff, it has purchased two bits of land measuring 225 x 217 ft. and 250 x 370 ft. under a deed of sale dated 24.2.1992. It has constructed certain buildings to house the hostel and school for the children and the remaining portion is a vacant land and is used as a play ground for the school children. The suit schedule properties are part and parcel of the aforesaid two bits of lands. The defendants have no right, title or interest over the suit schedule properties. It is a revenue land. The sixth defendant executed three different sale deeds in favour of defendants Nos. 1 to 5 in respect of the suit schedule properties. The title of the plaintiffs vendor in respect of the suit schedule properties has been confirmed in O.S. No. 5/1984 dated 31.1.1990.
5. Defendant Nos. 1 to 5 have filed their written statement denying the plaintiffs title to the suit schedule properties. It is contended that they are in lawful possession and enjoyment of the suit schedule properties. Their father was in possession of the suit schedule properties and that they had put up construction over the same about 35 years back and after his death, defendant Nos. 1 to 5 have reconstructed the building. They are in continuous lawful possession uninterruptedly, openly and that they have perfected their title by adverse possession in respect of the said properties. Defendant No. 8 has also filed the written statement denying the plaintiffs title to the suit schedule properties.
6. On the basis of the pleadings of the parties, the trial Court has framed the following issues:
"1. Whether the plaintiff- Institution proves that the suit schedule property belongs to it by virtue of registered sale deed dated 24.2.1992?
2. Whether plaintiff-Institution further proves that the defendant Nos. 6 to 8 have no right, whatsoever over the suit schedule property?
3. Whether plaintiff-Institution further proves that the alleged sale deeds dated 14.1.2000 and 25.2.2000 executed in favour of defendant Nos. 1 to 5 by T.M.C., Sira, are not valid and not binding on the plaintiff?
4. Whether plaintiff- Institution proves that the said institution is entitled for relief of declaration and consequential reliefs of mandatory injunction and permanent injunction, as sought for?
5. Whether the defendants prove that the suit is barred by limitation?
6. Whether defendant further proves that defendants No. 1 to 5 have perfected their title over the suit schedule property by way of adverse possession?
7. What order or decree?"
7. On behalf of the plaintiff, three witnesses were examined as PW.1 to PW.3. DW.1 to DW.12 were examined as witnesses of the defendants. Several documents have been marked in the evidence of both the parties. On appreciation of the materials on record, the trial Court has held issue Nos. 1 to 3 in the affirmative and in favour of the plaintiff On issue No. 5, the trial Court held that the suit is not barred by time. However, issue Nos. 4 and 6 have been answered against the plaintiff Consequently, suit
