Puttananjamma vs Siddashetty and Others

S. Abdul Nazeer, J—This appeal is directed against the judgment and decree in R.A. No. 54/2008 (Old No. 6/2005) dated 1.9.2010 on the file of the District and Sessions Judge, Chamarajanagar.

The appellant/plaintiff filed the suit O.S. No. 212/1995 against the respondent/defendants for declaration, possession and future mesne profits from the date of the suit till delivery of possession. The suit schedule property belongs to defendant Nos. 1 to 4. They had mortgaged the suit schedule property in favour of Mahadevasetty, son of Siddasetty for Rs. 1,000/- and the mortgagee was put in possession of the said property. The mortgage deed was registered on 21.3.1975 for a period of five years. On 30.4.1976, the defendants sold the suit schedule property in favour of the plaintiff for a consideration of Rs. 3,000/-. However, the plaintiff was required to clear the prior mortgage debt. It is further contended that the plaintiff discharged the debt on 15.7.1984 by redeeming the mortgage and took possession of the suit schedule property along with the original mortgage deed. The 5th defendant purchased 1 acre of land in the same survey number from defendant Nos. 1 to 4. The plaintiff is a resident of Ramasamudra, which is situated about 8 miles away from the suit land. Taking advantage of plaintiff''s absence from the village, the defendants trespassed into the land and are in possession of the said property. Despite repeated requests from the plaintiff, they have failed to deliver possession of the land.

The second defendant has filed the written statement stating that Sy. No. 83/2 measuring 3 acres 1 gunta is the ancestral property of defendant Nos. 1 to 3, out of which, they sold the suit schedule property measuring 38 guntas to the plaintiff in the year 1976. They also sold 1 acre of land to the 5th defendant in the year 1981. The remaining 1 acre 3 guntas of land is in possession of defendant Nos. 1 to 3.

The 5th defendant has filed the written statement contending that he has been in possession and enjoyment of the suit schedule property from the year 1981 and he has been in continuous possession and paying land revenue with the knowledge of the plaintiff and defendant Nos. 1 to 4. He has made the land fit for cultivation by spending huge amount of money. He has been cultivating the land.

On the basis of the pleadings of the parties, the trial Court has framed the following issues:

"(1) Whether the plaintiff proves that she became the owner of the suit schedule property under the alleged sale deed dated 30.4.1976 and took possession of the suit schedule property after discharging the mortgage as pleaded by her?

(2) Whether the 5th defendant prove that he is in continuous possession and enjoyment of the suit schedule property from 24.9.91 excluding all?

(3) To what relief the parties are entitled?"

The plaintiff got examined herself as P.W. 1 and two witnesses have been examined in support of her case as P.W. 2 and P.W. 3. Documents Ex. P1 to Ex. P5 were marked in their evidence. On behalf of the defendants, 5th defendant got himself examined as DW 1 and three witnesses have been examined in support of their case as DW 2 to DW 4. Documents Ex. D1 to Ex. D12 were marked in their evidence.

The trial Court, on appreciation of the evidence on record, has come to the conclusion that the plaintiff is the owner of the suit schedule property having purchased the same under a registered sale deed dated 30.4.1976. The trial Court also came to the conclusion that he is entitled for recovery of possession of the property from defendant No. 5. The trial Court rejected the plea of defendant No. 5 that he has perfected title by adverse possession.

Feeling aggrieved, 5th defendant filed an appeal R.A. No. 54/2008 (old No. 6/2005) before the District and Sessions Judge at Chamarajanagar. The first appellate Court on reconsideration of the materials on record, has set aside the judgment and decree of the trial Court and dismissed the suit. That is how the plaintiff has filed the present appeal challenging the judgment and decree of the first appellate Court.

While admitting the appeal, this Court has framed the following substantial question of law for consideration:

"Whether the lower appellate Court was justified in holding that the sale deed dated 24.9.1981 executed in favour of 5th defendant in the original suit is earlier to that of the sale deed dated 30.4.1976 executed in favour of the plaintiff?"

Learned Counsel appearing for the appellant would contend that the plaintiff is the owner of the suit schedule property having purchased the same under a registered sale deed Ex. P1 dated 30.4.1976. Under the terms of the sale deed, the plaintiff has to take possession of the property from the mortgagee Mahadevashetty. She has redeemed the mortgage on 15.7.1984 and took possession of the property from Mahadevashetty on the said date. The plaintiff has proved her title by producing title deeds. 5th defendant has purchased 1 acre of land under a different sale deed at Ex. D1 dated 24.9.1981. This land is adjacent to the property purchased by the plaintiff. The plaintiff is a resident of Ramasamudra, which is situated about 8 miles from the suit land. Taking advantage of the fact that the plaintiff is not the resident of the same village, the defendants had encroached the property of the plaintiff. Both the plaintiff and the 5th defendant purchased their respective properties from defendant Nos. 1 to 3. There is no dispute that defendant Nos. 1 to 4 were the owners of the suit schedule property. Defendant No. 5 though states that he is in continuous possession, he has not taken a specific plea that he has perfected her title by adverse possession. As the plaintiff has proved her title to the property, it was incumbent for the first appellate Court to decree the suit of the plaintiff and direct delivery of possession of the suit schedule property.

On the other hand, learned Counsel appearing for respondent No. 1, has sought to justify the impugned judgment and decree.

I have carefully considered the arguments of the learned Counsel made at the Bar and perused the materials placed on record.

It is evident from the sale deed at Ex. P1 dated 30.4.1976 that plaintiff has purchased 38 guntas of land in Sy. No. 83/2 of Dollipura Village from defendant Nos. 1 to 4. Similarly, defendant No. 5 has purchased 1 acre of land in the same survey number under Ex. D1 on 24.9.1981 from defendant Nos. 1 to 4. There is no dispute that defendant Nos. 1 to 4 were the owners of the suit schedule property. Defendant Nos. 1 to 4 have not disputed the title of the plaintiff in respect of the suit schedule property. In fact, the plea of defendant No. 5 is that he has purchased the suit schedule property on 24.9.1981 and that he has been in continuous possession of the property with the knowledge of the plaintiff and defendant Nos. 1 to 4. He has not specifically pleaded that he has perfected his title by adverse possession. In the circumstances, the substantial question of law framed as above may be not relevant for consideration. Having heard the learned Counsel for the parties, I am of the view that the following substantial question of law arises for consideration in this appeal:

"Whether the first appellate Court is justified in reversing the claim of the plaintiff for possession of the suit schedule property when the 5th defendant has not disputed her title to the said property?"

I have also perused the evidence of the parties. The plaintiff has examined herself as P.W. 1. She has deposed that she has purchased the suit schedule property under a registered sale deed Ex. P1 dated 30.4.1976. Ex. P5 is a mortgage deed and the endorsement made in the document redeeming the mortgage is at Ex. P5(a). The mortgagee is examined as DW 3. He has stated that the mortgage has been discharged and that possession of the property has been handed over to the plaintiff. The plaintiff is not a resident of the village where the land is situated. She is staying at Ramasamudra. It is also clear that defendant No. 5 has purchased 1 acre of land in the same survey number, which is adjacent to the plaintiff''s property. It is clear from the evidence of the plaintiff that she is in possession of the suit schedule property. When the plaintiff has proved her title, it was incumbent upon the first appellate Court to grant possession of the property. There is no dispute that the suit schedule properties belong to defendant Nos. 1 to 4 before it was purchased by the plaintiff. Once the title is established, the first appellate Court ought to have directed delivery of possession of the suit schedule property to the plaintiff.

However, defendant No. 5 has stated in his written statement that he has been in continuous possession of the property with the knowledge of the plaintiff and defendant Nos. 1 to 4. There is no specific pea that he has perfected his title by adverse possession. Be that as it may. Claim by adverse possession has two elements; the possession of the defendant should become adverse to the plaintiff; and the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known, is a requisite ingredient of adverse possession. It is now a well settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more, does not ripen into a title.

In Annakili Vs. A. Vedanayagam and Others, AIR 2008 SC 346 : (2008) 1 CTC 329 : (2007) 12 JT 383 : (2007) 11 SCR 517 : (2007) AIRSCW 6892 : (2007) 7 Supreme 342 , the Apex Court has held that the Apex Court has held that when a suit is for possession based on title and the defendant is resisting the suit on basis of hostile title, burden of proof lies on the defendant to show that he/she was in possession of the said property on the basis of hostile title since past 12 years which has resulted in extinguishing the title of plaintiff.

It is also settled that plea of adverse possession is not a pure question of law but a mixed question of fact and law. Therefore, a person claiming adverse possession should plead and establish on what date he came into possession, what was the nature of his possession, whether factum of possession was known to the other party, how long his possession has continued and his possession was open and undisturbed (See Dr. Mahesh Chand Sharma Vs. Smt. Raj Kumar Sharma and others, AIR 1996 SC 869 : AIR 1995 SC 869 : (1995) 8 JT 466 : (1995) 6 SCALE 809 : (1996) 8 SCC 128 : (1995) 6 SCR 41 Supp and Karnataka Board of Wakf Vs. Government of India and Others, (2004) 4 SCALE 856 : (2004) 10 SCC 779 : (2004) 1 SCR 255 Supp ).

Defendant No. 5 has not pleaded or established as to from what date he has been in continuous possession of the property adverse to the interest of the plaintiff. He has also not adduced any evidence in this regard. The trial Court has considered this aspect in detail in its judgment in O.S. No. 212/1995. However, the first appellate Court without considering any of these aspects, has gone behind the pleadings. I am of the view that the first appellate Court is not justified in reversing the well considered judgment and decree of the trial Court.

In the result, the appeal succeeds and it is accordingly allowed. The judgment and decree of the first appellate Court in R.A. No. 54/2008 dated 1.9.2010 is hereby set aside and the judgment and decree of the trial Court in O.S. No. 212/1995 dated 30.10.2014 is restored. The defendants are directed to deliver vacant possession of the suit schedule property to the plaintiff. No costs.