IMPORTANT POINT
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.

JUDGMENT :

C.M. Poonacha, J.

The present second appeal is filed by the plaintiff under Section 100 of Code of Civil Procedure, 1908, [Hereinafter referred to as ‘CPC’] challenging the judgment and decree dated 25.11.2008 passed in RA No.125/2007 by the Additional District and Sessions Judge, Fast Track Court IV, Belgaum, [Hereinafter referred to as the ‘first appellate Court’] and the judgment and decree dated 2.1.2004 passed in OS No.140/2002 by the III Additional Civil Judge (Jr.Dn) Belgaum, [Hereinafter referred to as the ‘Trial Court’], wherein the suit for declaration and possession filed by the plaintiff has been decreed by the Trial Court, which has been set aside by the first appellate Court.

2. The parties will be referred to as per their ranking before the Trial Court, for the sake of convenience.

3. It is the case of the plaintiff that he is the owner of suit property which is a residential house measuring 26 feet x 10 ¼ feet and a shed measuring 12 feet x 10 ¼ feet, together forming part of Municipal No.244/100A corresponding to CTS No.4879/46B, situated at Fulbag Galli, Belgaum. That defendant No.1 is the sister of the plaintiff and defendant No.2 is her husband.

4. It is the case of the plaintiff that his father had purchased CTS No.4879/46 vide registered Sale Deed dated 24.9.1943 and constructed a residential house. That he died on 9.8.1951 and after his death, his two sons i.e., Mahadeva and Shankar continued to be in joint possession of the suit property. That a partition is effected between the plaintiff and his brother and accordingly, the property bearing No.4879/46B fell to the share of the plaintiff, whereas CTS No.4879/46A fell to the share of his brother, Shankar. That the name of the plaintiff appears as owner in respect of CTS No.4879/46B. That the plaintiff is in possession of a portion of the suit property shown by the letters EFGH in the hand sketch and ABCD portion was originally an open backyard where defendants have put up a temporary shed. That the plaintiff allowed the defendants occupy ABFE portion as a licensee.

5. It is the further case of the plaintiff that he asked the defendants somewhere in the year 1988 to vacate ABFE portion and handover possession of the same to him. That since the defendants failed to vacate and handover vacant possession, the plaintiff was constrained to file a suit for possession in OS No.478/1988 on the file of the Principal Munsiff, Belgaum. That the said suit was dismissed, which was upheld in RA No.15/1997 as also in RSA No.403/1998. That this Court in the judgment passed in RSA No.403/1998 made an observation that the findings given in the judgment would not come in the way of the plaintiff seeking possession of the property from the defendants on the basis of his title. It is further contended by the plaintiff that the defendants have no right to continue in possession of the suit property and the possession is illegal. That since RSA No.403/1998 was disposed of on 19.11.2001, the time spent over the litigation is required to be excluded under Section 14 of the Limitation Act, 1963, [Hereinafter referred to as the ‘Limitation Act’]. Hence, the plaintiff has filed the suit for declaration of title and possession of the suit property.

6. The defendants entered appearance through a counsel and filed their written statement denying the case of the plaintiff. It is denied that the plaintiff is the owner of the suit property. It is contended by the defendants that they are in occupation of the suit property in their own right. It is denied that the plaintiff allowed defendant Nos.1 and 2 as licensees and they are in permissive possession of the suit property. It is further contended that the claim of the plaintiff having been rejected in OS No.478/1988, on identical issues the suit is hit by the principles of res judicata. It is further contended that the suit is barred by limitation and the time spent in the earlier litigation is not saved under Section 14 of the Limit