Uthnallappa and Others vs M.E. Munirajegowda and Others

Ravi V. Malimath, J.—The case of the plaintiff is that their father purchased the plaint schedule property through the registered sale deed dated 19-2-1987 from the 1st defendant and his wife. Since then they have been in possession of the same as per ''A'' schedule to the plaint. The possession was handed over to them to an extent of 1 acre 4 guntas. The plaint ''B'' schedule property consists of 2 guntas of land which has been in the possession of the plaintiff from the last 17 years and the said possession continues uninterruptedly. This 2 guntas of land did not form part and parcel of the sale deed executed in his favour. However, he has been in uninterrupted possession for the last 17 years. Hence, he has perfected his title by way of adverse possession. They are enjoying the usufructs of jackfruits situated in ''B'' schedule property. The plaintiffs father filed OS No. 264/1999 against the defendants for permanent injunction which was decreed and inspite of that the defendants have attempted to knock off ''B'' schedule property. Hence, he filed the instant suit seeking for a declaration of title by way of adverse possession and for permanent injunction. The defendants entered appearance and denied the suit averments. They denied that the plaintiffs are the owners and in possession of Sy. No. 83/1 measuring 1 acre 4 guntas. They denied that the property has been handed over by the 1st defendant and his wife and that the plaintiffs are getting the fruits from the jackfruit trees. That the 1st defendant in terms of the gift deed dated 16-4-2003 gifted the ''B'' schedule property to the 2nd defendant and the katha was mutated in his name. Hence he is in possession of the same. Hence, he sought for dismissal of the suit.

On the basis of the pleadings the trial Court framed the following issues:--

"1. Whether the plaintiffs prove that 1st defendant and his deceased wife had handed over possession of ''B'' schedule property to them?

Whether plaintiffs prove that they are in possession of the ''B'' Schedule property hostile to the knowledge of defendants ever since past 17 years?

Whether plaintiffs prove that they have perfected their title over the ''B'' schedule property by way of adverse possession?

Whether 2nd defendant is in possession of the ''B'' schedule property by virtue of Gift deed dated 16.01.2003?

Whether the alleged causes of action true?

Whether the suit is not properly valued and court fee paid insufficient?

What order or decree?"

Plaintiff No. 1 was examined as P.W. 1 and two other witnesses were examined on behalf of the plaintiffs and 26 documents were marked. Two witnesses were examined on behalf of the defendants and 9 documents were marked. Issue Nos. 1, 2, 3 and 5 were held in the affirmative. Issue No. 4 and 6 were held in the negative. The trial Court decreed the suit for declaration holding that the plaintiffs have proved the title by way of adverse possession. The defendants were restrained from interfering with the plaintiffs possession. Aggrieved by the same, the defendants filed an appeal which was dismissed. Hence, this present second appeal by the first defendant.

By the order dated 17-7-2012 the appeal was admitted to consider the following substantial questions of law:--

"When P.W. 1, the son of deceased plaintiff admits in his evidence that he has purchased the land bearing Sy. No. 83/1 measuring 1 acre 4 guntas alongwith two guntas of land in Sy. No. 83/4 (''B'' schedule property), whether he could claim title to ''B'' schedule property by adverse possession?"

The learned counsel for the appellant defendants contends that the impugned order is bad in law and liable to be set aside. That the plaintiff could not maintain the suit based on adverse possession. That the plea of adverse possession can only be taken as a shield and not as a sword. So far as the grant of injunction is concerned, the plaintiffs have failed to make out any case for interference by the defendants. Hence, he prays for dismissal of the suit.

On the other hand, the learned counsel for the respondents defends the impugned order. He contends that there is no error that calls for interference. That since then he has been in uninterrupted possession of the suit schedule property the possession should be confirmed in his name.

Heard learned counsels and examined the records.

The first prayer seeking for declaration that the plaintiffs have perfected the title of plaint ''B'' schedule property by way of adverse possession could never have been considered by the Courts below. No such suit could be maintained based on adverse possession. The same is opposed to the principles of adverse possession.

The Hon''ble Supreme Court in the Case of Gurudwara Sahib Vs. Gram Panchayat Village Sirthala and Another, held at para-8 as follows:

"Para 8. There cannot be any quarrel to this extent that the judgment 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."

Adverse possession could be claimed only as a shield and not as a sword by the plaintiff. Therefore as and when possession is threatened it is only then the plea of adverse possession could be set up as a defence and not otherwise. Therefore, the 1st prayer of the plaintiffs is rejected. So far as the second prayer regarding injunction is concerned, there is no material placed by the plaintiff to show interference by the defendants. Irrespective of the fact whether the plaintiffs have been in possession of the property or not they will have to show by producing material that the defendants intended to disturb their possession over the suit schedule property. The courts below fell in error in holding that only because they held adverse possession in favour of the plaintiffs with regard to the ''B'' schedule properties he is entitled to an order of injunction, I''am unable to accept the reasoning assigned by the trial Court. There is no iota of evidence led in by the plaintiffs to show any disturbance by the defendants with respect to ''B'' schedule property. In the absence of any interference by the defendants no injunction could be granted in favour of the plaintiffs.

Under these circumstances, even the second prayer granted by the Courts below is unjust. Hence, the substantial question of law is answered by holding that the plaintiffs could not claim title to ''B'' schedule property by adverse possession.

Consequently, the appeal is allowed. The Judgment and decree dated 26-6-2009 passed in O.S. No. 92/2005 by the Civil Judge, Junior Division Devanahalli and the Judgment & decree dated 4-10-2010 passed in RA No. 25/2009 by the Fast Track Court, Devanahalli, are set aside. The suit of the plaintiff is dismissed.

No costs.