Hanmant and Others vs Siddappa and Others

A.N. Venugopal Gowda, J.—This is defendants'' second appeal. Suit filed by respondents 1 to 6, to handover possession of the suit land was decreed and an appeal filed by the defendants was dismissed.

Respondents 1 to 6 instituted the suit alleging encroachment of 6 guntas of land by the appellants, out of their property measuring 3 acres in Sy. No. 158/2 and 3 acres in Sy. No. 158/3 of Tamba Village, Taluk: Indi. The suit was contested by filing written statement of defendant No. 1, which was adopted by defendant No. 2 by filing a memo. The claim of the plaintiffs that there is encroachment of an area of 6 guntas of suit land by the defendants was denied and it was contended that the defendants are in actual possession and enjoyment of the alleged encroached area for more than 30 years, as owners, openly and to the knowledge of whole world and hence, they have acquired title by adverse possession. Cause of action to the suit, as stated in the plaint, was denied and it was contended that the suit is not maintainable. During the pendency of the suit, defendant No. 2 having died, his legal representatives were brought on record. Defendant No. 2(c) filed separate written statement.

Based on the pleadings, Trial Judge raised the following issues:

Whether plaintiff proves that defendants have encroached 6 guntas of land as alleged in the plaint?

Whether defendants prove that they have perfected title to the alleged encroached area by adverse possession?

Whether defendants prove that this court has no jurisdiction to try this suit?

Whether plaintiff is entitled for possession of encroached portion? If so, how much?

To what order and decree?

By a Judgment and Decree dated 19.08.1995, the suit was dismissed. R.A.171/1995 having been filed by the plaintiffs, the Civil Judge (Sr. Dn.), Bijapur, by a Judgment and Decree dated 04.08.2003, allowed the appeal, set aside the impugned Judgment and Decree and directed the raising of two additional issues and decide the suit in accordance with law. Pursuant to the Judgment of remand, following additional issues were raised:

Whether plaintiffs prove that they are the owners of the suit property (encroached area)?

Whether the suit of the plaintiffs is barred by limitation?

Further evidence having been adduced by both sides upon hearing of the arguments, Issue Nos. 1, 4 and Addl. Issue No. 1 were answered in the affirmative and Issue Nos. 2, 3 and Addl. Issue No. 2 were answered in the negative and by a Judgment dated 17.03.2006, the suit was decreed and the defendants were directed to handover possession of the suit land (encroached 6 guntas of land) to the plaintiffs.

On appeal by the defendants, the Senior Civil Judge, Indi, in R.A. No. 54/2007, on a fresh assessment and appreciation of oral and documentary evidence led by the parties, held that the Trial Judge was justified in decreeing the suit. By a Judgment dated 31.01.2013, the appeal was dismissed.

Sri D.P. Ambekar, learned advocate, reiterated the contentions put forth before the Courts below and submitted that the impugned Judgments and Decrees being contrary to the facts of the case and the law applicable and that the relief of recovery of possession having not been sought by filing the suit within 12 years'' period from the date the actual cause of action arose, the defendants/appellants having perfected their title to the suit property and as a consequence the plaintiffs having lost their title and in the absence of prayer for grant of decree of declaration, the suit being not maintainable, the impugned Judgments and Decrees have given rise to substantial questions of law and hence, the second appeal, under S. 100 CPC is maintainable.

Perused the record and considered the submissions.

The question of possession of the suit land is essentially one of fact. The Trial Judge, on appreciation of the oral and documentary evidence on record, accepted the case of the plaintiffs and declined to accept the claim of the defendants with regard to they having acquired the title over the suit property by way of adverse possession and enjoyment. The Trial Judge has recorded positive finding based on the revenue records and oral evidence adduced by the plaintiffs. Before the lower Appellate Court, the findings recorded by the Trial Judge, on the issues and additional issues raised, having been assailed, on a fresh assessment and appreciation of the oral and documentary evidence led by the parties and the claim of the defendants, that they are in possession of 6 guntas of land, by way of adverse possession, in view of Ex. P1, an order passed by the Tahsildar and the PT sheet prepared, as per Ex. D1, being unchallenged by the defendants and the plea of adverse possession having not been established, it was held that the plaintiffs are entitled to recovery of possession of 6 guntas of encroached land from the defendants. The plaintiffs having come to know of the encroachment of their land by the defendants, on 16.07.1984, when the measurement was made by the Surveyor and in view of the order passed by the Tahsildar, India on 22.08.1988, it was held that cause of action for the suit arose on 22.08.1988 and the suit having been filed on 06.12.1988, was found to be within the period of limitation. Consequently, the impugned Judgment and Decree having been found to be justified, was affirmed and the appeal dismissed.

In T. Anjanappa and Others Vs. Somalingappa and Another, , Apex Court has held that mere possession however long does not necessarily mean that it is adverse to the true owner and the classical requirement of acquisition of title by adverse possession is that such possession was in denial of the true owner''s title. Therein, it has been held as follows:

"20. It is well-recognized proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner''s title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former''s hostile action."

The facts which are required to be proved to succeed on the plea of adverse possession have been enunciated by the Apex Court in Karnataka Board of Wakf Vs. Government of India and Others, as follows:

"In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won''t affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nee vi, nee clam, nee precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period, {see S.M. Karim Vs. Mst. Bibi Sakina, , Parsinni (Dead) by Lrs. and Others Vs. Sukhi and Others, and D.N. Venkatarayappa and another Vs. State of Karnataka and others, } Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession {( Dr. Mahesh Chand Sharma Vs. Smt. Raj Kumar Sharma and others, }"

In view of the said proposition of law, mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession, the possession must be adequate in continuity, in publicity and in extent, so as to show that it is adverse to the true owner. The possession must be open and hostile enough so that it is known by the parties interested in the immovable property. For the defendant to succeed in his defence of adverse possession, he must continue to remain in position for a period of twelve years adverse to the interest of the plaintiff. The date on which he came in possession, the nature of possession, the factum of possession, knowledge of true owner all have to be pleaded and proved. The Apex Court has held that a person pleading adverse possession has no equities in his favour, since his attempt is to defeat the right of a true owner, and hence it is for him to clearly plead and establish all necessary facts.

Applying the said principles, the Courts below have decided the case. The material evidence brought on record of the suit by the parties has been taken note of and has been appreciated. It is not a case of misreading of any evidence or not considering the material evidence. All the relevant aspects have been kept in view by the Courts below, while recording their respective findings, as per the Judgments passed. The findings recorded by the Courts below in the impugned Judgments was not shown to be perverse. There is no wrong application of any law by the Courts below.

In the circumstances, the impugned Judgments/Decrees have not given rise to any substantial question of law. Hence, the appeal filed u/s. 100 CPC being not maintainable is rejected.