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2024 Supreme(Online)(KAR) 37798
HIGH COURT OF KARNATAKA
K.S.Hemalekha, J
Krishna Gajanan Hegade – Appellant
Versus
Suresh Ramakrishna Hegde – Respondent
RSA No. 100086 of 2019
For the Appellants/Petitioners: Sharad V. Magadum
For the Respondents: Sanjay S Katageri
A plea of adverse possession requires proof of 'nec vi, nec clam, nec precario' (peaceful, open, and continuous possession) and is inherently inconsistent with a claim of title; a plaintiff must specifically plead the origin of hostile possession, and concurrent factual findings regarding its failure will not be disturbed in second appeals.
Headnote:(A) Code of Civil Procedure, 1908 - Section 100 - Appeal - Scope and ambit - Regular Second Appeal - Interference with concurrent findings of facts - Appellate court should not substitute its view unless the decision is perverse or illegal - No substantial question of law arises to warrant interference.
(B) Adverse Possession - Burden of proof - Essential ingredients - Possession must be open, clear, continuous, and hostile (nec vi, nec clam, nec precario) - Mutually exclusive with the plea of title - Plaintiff must specifically plead the origin and duration of hostile possession to the knowledge of the true owner - Mere long-standing possession does not translate into adverse possession.
Facts of the case:
The plaintiff sought a declaration of ownership by way of adverse possession and a permanent injunction regarding the suit property in Sy. No. 2. The trial court and the first appellate court dismissed the suit and allowed the defendant’s counterclaim, declaring the defendant the absolute owner. The plaintiff appealed against the dismissal of his suit.
Findings of Court:
The courts below rightly concluded that the plaintiff failed to prove the essential ingredients of adverse possession. The claim of title and adverse possession are inconsistent, and the plaintiff failed to establish the hostilitiy of his possession against the true owner. The counterclaim of the defendant, declaring him the absolute owner, attained finality as it was not challenged in the first appeal.
Issues: Whether the plaintiff established title through adverse possession and whether the concurrent findings of the lower courts warrant interference under Section 100 CPC.
Ratio Decidendi: A plea of adverse possession requires the applicant to specifically plead and prove the date of hostilitiy and that the possession was open and continuous to the knowledge of the true owner. Without these, or where pleas of title and adverse possession are contradictory, the claim fails.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. overview of the dispute regarding possession and previous court findings. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10) |
| 2. contentions of parties and scope of second appeal under section 100 cpc. (Para 11 , 12 , 13) |
| 3. essential elements of adverse possession and pleading requirements. (Para 14 , 15 , 16 , 17) |
| 4. application of legal principles to the family partition and conclusion of appeal. (Para 18 , 19 , 20 , 21 , 22) |
THIS RSA IS FILED U/S.100 OF CPC., PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 31.10.2018 PASSED IN R.A.NO.41/2012 BY THE SENIOR CIVIL JUDGE, SIRSI, ITINERARY COURT SIDDAPUR, CONFIRMING THE JUDGMENT AND DECREE DATED 18.07.2012 PASSED IN O.S.NO.109/2007 PASSED BY THE CIVIL JUDGE SIDDAPUR AND FURTHER MAY BE PLEASED TO DECREE THE SUIT BY DISMISSING COUNTER CLAIM OF THE DEFENDANT, IN THE INTEREST OF JUSTICE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
ORAL JUDGMENT
The plaintiffs are before this Court in this regular second appeal, against the concurrent findings of facts recorded by the Courts below, whereby, the suit seeking for declaration and permanent injunction came to be dismissed.
2. Parties herein are referred to as per their rank before the trial Court for the sake of convenience.
3. Sy. No.2 measuring 1 acre 26 guntas 8 annas (hereinafter referred to as “suit property” for short), suit seeking title by way of adverse possession and for permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the suit property.
4. It is the case of the plaintiff that there was a partition in the family of the plaintiff and defendant in the year 1956, i.e., Gajanan the father of plaintiff and Ramkrishnan the father of defendant, and in the suit Sy.No.2, which was totally measuring 5.15 acres, 2.27 acres each to both branches, further the plaintiff and his brother divided the property fallen to their share and accordingly, the plaintiff’s brother Ramachandra Gajanan Hegde acquired to an extent of 1 acre 27 guntas 8 annas and remaining extent i.e., 1 acre of suit was taken by the plaintiff, further in the suit 1 acre was allotted to the share of Thirumala Ramakrishna Hegde, the brother of plaintiff’s father there was a partition among the defendant and his brother and at that time, 1 acre was allotted to the brother of defendant and remaining property left with the plaintiff. The plaintiff contends that the plaintiff is uninterruptedly in possession and enjoyment of the suit property to the knowledge of the defendant since more than 12 years and the defendant has lost his right over 1 acre 26 guntas 8 annas and he has been cultivating the suit property. It is the contention of the plaintiff that the share of the defendant together with Thirumala Ramakrishna Hegde to the extent of 1 gunta is in the possession of the plaintiff and as such the plaintiff is in possession of totally 2 acres 27 guntas 8 annas.
5. On notice, the defendant appeared and filed his written statement admitting the partition effected in the family of the plaintiff and defendant in the year 1956. The defendant contended that in the year 1956 registered partition was effected between the father of the plaintiff and father of defendant and in the suit property 2 acre 27 guntas 8 annas was fell to the branch of the plaintiff and 2 acre 27 guntas 8 annas was fell to the branch of the defendant and properties were measured by authorized surveyor and after the division of the properties between the branch of plaintiff and defendant, the plaintiff and his brother partitioned suit property, which was allotted in the year 1956. The defendant specifically contended that the property fallen to the branch of plaintiff is Sy. No.2/2 measuring 2 acre 27 guntas 8 annas and they are in joint possession and peaceful enjoyment and from the year 1956 to 1998 and in the year 1998 there was a partition in th
