A party cannot claim adverse possession without admitting the other party's title; the limitation period does not apply if adverse possession is not proven.

JUDGMENT :

S. VISHWAJITH SHETTY, J.

1. Defendant nos.1(a) & 1(b) have preferred this Regular First Appeal under Section 96 CPC , with a prayer to set aside the judgment and decree dated 05.01.2007 passed in O.S.No.138/1999 by the Court of I Addl. Civil Judge (Sr.Dn.), Chitradurga.

2. Heard the learned Counsel for the parties.

3. O.S.No.138/1999 is filed by respondent nos.1 to 8 herein with a prayer for passing a decree for recovery of possession of suit schedule property.

4. The appellants herein had filed written statement opposing the suit claim.

5. The Trial Court based on the rival pleadings, had framed the following issues in O.S.No.138/1999.

"1. Whether the plaintiffs prove that the defendants came in possession of suit property on 8-6-98 after the dismissal of R.S.A.No.313/92?

2. Whether defendants prove that deceased Sanna Thammappa was in possession of suit property along with Basavva since 1935, to the knowledge of its owner vendor Thimmanna and continued to be in possession after the death of Basavva in1950, openly, uninterruptedly, continuously to the knowledge of Channabasappa, Basappa and perfected his title to suit property by adverse possession?

3. Whether defendants prove that the suit is barred by time?

4. Whether plaintiffs are entitled for possession of suit property from defendants?

5. What decree or order?"

6. During the course of trial, on behalf of the plaintiffs, three witnesses were examined as PWs-1 to 3 and ten documents were got marked as Exs.P-1 to P-10. The defendants had examined two witnesses in support of their case as DWs-1 & 2 and 33 documents were got marked as Exs.D-1 to D-33.

7. After hearing the arguments addressed on both sides, the Trial Court vide the impugned judgment and decree has decreed the suit and directed the defendants to vacate and hand over vacant possession of the suit schedule property to the plaintiffs. Aggrieved by the said judgment and decree dated05.01.2007, defendant nos.1(a) & 1(b), are before this Court.

8. Learned Counsel for the appellants having reiterated the grounds urged in the memorandum of appeal, submits that Ex.D-6 is the order of the Assistant Commissioner passed under Section 145 Cr.PC, in which, it is observed that defendants in the present case are in possession of the suit schedule property. He submits that O.S.No.309/1978 was earlier filed seeking the relief of declaration and injunction. In the said suit also, there is a finding that defendants in the present case are in possession of the suit schedule property. The defendants have perfected their title to the suit schedule property by way of adverse possession. He submits that the suit is hopelessly barred by limaition. He has placed reliance on Article 65 of the Limitation Act, and submits that the suit is not filed within a period of 12 years from the date defendants have come in possession of the suit schedule property. He submits that merely for the reason that proceedings in O.S.No.309/1978 was pending, the limitation to file a suit for recovery does not get saved. In support of his arguments, he has placed reliance on the judgment of the Hon'ble Supreme Court in the cases of RAJENDAR SINGH VS SANTA SINGH - LAWS(SC)-1973-8-38 and DES RAJ VS. BHAGAT RAM - LAWS(SC)-2007-2-76.

9. Per contra, learned Counsel appearing for the respondents who are the plaintiffs in the present suit, have argued in support of the impugned judgment and decree. They submit that plaintiffs title has been declared in O.S.No.309/1978. The present suit is only for the relief of possession based on title. The claim of adverse posses