2009 Supreme(SC) 793

Supreme Court of India
THE HONOURABLE MR. JUSTICE R.V. RAVEENDRAN & THE HONOURABLE MR. JUSTICE HARJIT SINGH BEDI
L.N. Aswathama & Another
Versus
P. Prakash
CIVIL APPEAL NO.4125 OF 2009 [Arising out of SLP (C) No. 8405 of 2007]
Decided on : 21-04-2009

IMPORTANT POINTS
First appellate court, being last court of fact, is bound to independently consider the entire evidence. It is not proper to reverse well considered decree of trial court on surmises and conjectures.
In law possession follows title.
Adverse possession must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. Merely long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi.
Title and adverse possession are mutually exclusive.

Headnote:(a) Code of Civil procedure, 1908 – Section 96 – First appeal – First appellate court, being last court of fact, bound to independently consider the entire evidence – Not proper to reverse well considered decree of trial court on surmises and conjectures – Instantly High Court reversing well considered judgment of the trial court mainly on the ground that katha number of the suit property, given in two of the documents relied by the plaintiffs did not tally – While doing so High Court overlooked exclusion of the two documents from consideration – Impugned judgment not sustainable. (Para 8)

       (b) Property law – Possession follows title – Plaintiff establishing his title – Entitled to possession. (Para 13)

       (c) Property law – Title – Defendant claiming title on basis of a sale deed – Documents relating to title recited in the sale deed not produced – Plot in sale deed not tallying with the suit plot – Attempt to give false identity to the plot – Sale deed apparently fabricated – No title can be claimed on such document. (Para 15)

       (d) Property law – Adverse possession and permissive possession – Defendant claiming to purchase suit in 1985 – Also claiming to be in possession as tenant since 1962 – Combing total period to claim adverse possession – Adverse possession must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years – Merely long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. (Para 16, 17)

       (1996) 1 SCC 639 – Distinguished

       (e) Property law – Title and adverse possession – Claims based on – Mutually exclusive – One cannot claim title based on documents on the one hand and adverse possession on the other in the alternative. (Para 17)

       (1995) 6 SCC 523; (2004) 1 SCC 271; (2007) 6 SCC 59 – Relied upon

       (f) Property law – Adverse possession – Plaintiff filing suit in 1987 – Defendant claiming adverse possession – Having failed to establish title over suit plot heavy burden fallen on defendant to establish adverse possession – Not producing any evidence of possession from 12 years prior to filing of suit – Materials on record showing defendant as tenant in adjoining plot – Putting up cattle shed in the suit plot unauthorised in around 1978 – Adverse possession not established – Decision of High Court reversing well reasoned judgment of the trial court cannot be sustained. (Para 25)

       Facts of the case:

       One Narayanaswamappa purchased the suit plot in 1950 and was registered as its owner in the village records and was paying the taxes therefor. Narayanaswamappa suffered a stroke and after a prolonged illness died in December 1966 leaving all his properties to his sons (plaintiffs) under his will dated 15.7.1956. The plaintiffs were unaware that their father owned the said plot and were not conversant with their father’s affairs. Their father had taken some loan from Canara Bank and as security therefor had mortgaged the said site and other properties. The Bank obtained a decree for sale of the mortgaged properties. The plaintiffs became aware of the suit property only after they cleared the loan due to the Bank and got back the various title deeds deposited with the Bank on 9.1.1984.

       Thereafter, they took steps to trace the suit property and found that the defendant was in possession of the said property by putting some temporary unauthorized structure for tethering cattle. The appellants, therefore, filed suit for declaration of title, possession, permanent injunction and mesne profits.

       The trial court decreed the suit on 2.1.2004.

       A Single Judge of the High Court reversed the trial court’s judgment and dismissed the suit.

       Finding of the Court:

       Impugned judgment cannot be sustained.