T. Vikramarjuna Hegde vs Sarojini Hedge and Others

Ravi V. Malimath, J.—Aggrieved by the concurrent findings of the Courts below in dismissing the plaintiff''s suit for title based on adverse possession, the plaintiff has filed the present appeal.

The case of the plaintiff is that ''A'' schedule properties are in the actual possession and enjoyment of the plaintiff since more than 20 years earlier to the date of filing of the suit. The said properties had been allotted as ''B'' schedule properties in favour of late Karunakara Hegde, the husband of first defendant and father of defendants 2 to 5 by registered deed dated 01.06.1972. Late Karunakara Hegde was the absolute title holder of these suit properties. He was working in Gujarat State. He had executed a General Power of Attorney before the Sub Registrar, Karkala in favour of late Ravindra Hegde who is the father of plaintiff. He had put Ravindra Hegde into actual possession and enjoyment of suit properties. It is said in the General Power of Attorney that since he could not look after the management of suit properties, he has authorized his agent to even execute the sale deed in case of necessity. Thereafter, no effort was made to get back actual possession and enjoyment of the suit properties during his life time.

A notice was issued by Karunakara Hegde on 08.02.1981 regarding cancellation of General Power of Attorney. Another notice was sent asking Ravindra Hegde to surrender the suit properties in his favour. The same did not take place. Karunakara Hegde died on 09.04.1986. Since then, the plaintiff is in possession and enjoyment of the suit properties to the knowledge of defendants. The legal heirs of late Karunakara Hegde had been causing various kinds of interference for the peaceful use and enjoyment of the suit properties, hence, the said suit was filed seeking title of the suit properties based on adverse possession and also for a relief that the defendants claim for recovery of possession is barred by limitation and permanent injunction.

The suit summons were served and the defendants entered appearance and denied the plaint averments. Based on the pleadings, the Trial Court framed the following issues:

"1. Has to plaintiff acquired his title by adverse possession with respect to suit property?

Are the defendants have extinct their right to recover possession of suit properties?

Whether the plaintiff proves the alleged interference of defendants over the suit properties?

Whether the plaintiff entitles for the reliefs sought?

What Order or Decree?"

On behalf of the plaintiff, three witnesses were examined as PWs. 1 to 3 and 10 documents were marked as Exs. P1 to P10. On behalf of the defendants, the GPA holder was examined as DW 1 and 10 documents were marked as Exs. D1 to D10. All the issues were held as ''Negative". The suit was dismissed. The plaintiff preferred an appeal, which was also dismissed. Hence, the present appeal is filed by the plaintiff.

Learned Counsel for the appellant submits that the Courts below committed an error in misreading the evidence that the plaintiff has set up a plea of adverse possession. He submits that the plaintiff has shown that he is in possession of the suit properties for the last more than 20 years to the detriment of defendants. He is entitled for a decree of title based on adverse possession. Hence, the Trial Court committed an error in dismissing the suit.

On the other hand, learned Counsel for the respondents defend the impugned order. She states that the primary question of maintainability of suit itself is erroneous. No suit could lie based on adverse possession. Hence, she pleads that even though the suit was dismissed on other grounds, no interference is called for.

On hearing learned Counsels, it is needless to state that no plaintiff could maintain a suit for declaration or otherwise based on adverse possession. The principles of adverse possession could be used only as a shield and not as a sword. The Trial Court on issue No. 1 has held that the plaintiff''s father was a caretaker of the disputed properties since he is managing the same on behalf of deceased Karunakara Hegde. The Trial Court held that the plaintiff has failed to prove his possession over the suit properties as well as he has not fulfilled the ingredients of the plea of adverse possession.

Therefore, in my considered view, the question of the Trial Court getting into the merits and demerits of the plea of adverse possession as set up by the plaintiff is wholly uncalled for. As has been held by various judgments, the plaintiff cannot set up a plea of adverse possession. It can only be raised as a defence. Therefore, on going through the finding as to when the possession was taken, when the hostility was claimed does not arise for consideration.

The Hon''ble Supreme Court in the case of Gurudwara Sahib Vs. Gram Panchayat Village Sirthala and Another, , in para 8 has held as under:

"8. There cannot be any quarrel to this extent that the judgments of the Courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence." 11. On consideration of the aforesaid judgment, there is no merit in this appeal. Even though, the suit has been dismissed on various other grounds, the fundamental question as to whether the plaintiff can maintain the suit for title based on adverse possession has been answered by the aforesaid judgment of the Hon''ble Supreme Court. I find no error that calls for interference. The entire case revolves on facts. No substantial question of law arises for consideration.

Consequently, the appeal being devoid of merit is dismissed.