SMT. ZAIBUNNISA v. LATE ABDUL JABEER KHAN

Judgment

1. LATE ABDUL JABEER KHAN SINCE DEAD BY HIS LRs., 1(a) SMT. AMEENA, W/O. LATE ABDUL JABEER KHAN, AGED ABOUT 65 YEARS, 1(b) KALEEM KHAN S/O LATE ABDUL JABEER KHAN, AGED ABOUT 42 YEARS, 1(c) SMT. MUJEEBA KHANAM D/O. LATE ABDUL JABEER KHAN, AGED ABOUT 34 YEARS, 1(d) SMT. MOHISEENA KHANAM D/O. LATE ABDUL JABEER KHAN, AGED ABOUT 32 YEARS, 1(e) SRI SALEEM KHAN S/O. LATE ABDUL JABEER KHAN, AGED ABOUT 30 YEARS, MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA - 2 - NC: 2024:KHC:31897 RSA No. 567 of 2017 ALL ARE R/AT LAKKUR VILLAGE, SOMPURA HOBLI, NELAMANGALA TALUK – 562 113.

2. LATE AJMAL KHAN S/O. ABBAS KHAN, SINCE DEAD BY HIS LRs., 2(a) SMT. SHAZIYA, W/O. LATE AJMAL KHAN, AGED ABOUT 40 YEARS, 2(b) MASTER DANIYAL KHAN S/O. LATE AJMAL KHAN, AGED ABOUT 15 YEARS, THE RESPONDENT NO.2(b) IS MINOR, REPRESENTED BY HIS MOTHER 2(a) SMT. SAZIYA, BOTH ARE R/AT NO.67/2, KHAZI STREET, MOHAMMADAN BLOCK, BASAVANAGUDI, BANGALORE – 560 004.

3. SRI AKMAL KHAN S/O. LATE ABBAS KHAN, AGED ABOUT 54 YEARS, R/AT CHANDRA LAYOUT, BANGALORE – 560 040.

4. SRI G.P. SADASHIVA S/O. G. PUTTARAJU, AGED ABOUT 55 YEARS, R/AT NO.32/1, 45TH 2ND WARD, SOMESHWARA LAYOUT, DODDABALLAPUR TOWN, BANGALORE RURAL DISTRICT-561 203. (BY SRI DEVARAJU M., ADVOCATE FOR C/R-4) ... RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 09.06.2016 PASSED IN R.A.NO.65/2006 ON THE FILE OF THE VII ADDL. DISTRICT AND SESSIONS JUDGE, BANGALORE RURAL DISTRICT, BANGALORE DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 04.04.2006 PASSED IN O.S.NO.320/2002 ON THE FILE OF THE CIVIL JUDGE (SENIOR DIVISION) DODDABALLAPUR. - 3 - NC: 2024:KHC:31897 RSA No. 567 of 2017 THIS APPEAL COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA ORAL JUDGMENT Plaintiff is before this Court in the regular second appeal assailing the concurrent findings of facts recorded by the Courts below.

2. Parties herein are referred to as per the rank before the Trial Court for the sake of convenience.

3. Suit for declaration of title by way of adverse possession and for consequential relief of permanent injunction restraining the defendants or anybody claiming under them from interfering with the peaceful possession and enjoyment of the suit schedule property.

4. It is the case of the plaintiff that the suit schedule property belongs to the plaintiff’s father Abdul Aziz, during his life time, he executed a nominal sale deed in favour of one Muddamma, but the possession continued with Abdul Aziz. It is the case of the plaintiff that - 4 - NC: 2024:KHC:31897 RSA No. 567 of 2017 Muddamma had not acted upon the sale deed nor paid any taxes to the Municipality and it is the plaintiff and his father who had paid taxes and electricity charges even though the sale deed was executed favour of Muddamma on 18.11.1964, and from 1964 till 1998, the plaintiff has continued in possession and enjoyment over the suit schedule property and defendant Nos.1 and 2 have no right, title and interest over the suit property and

the plaintiff is in continuous possession and enjoyment of the suit schedule property hostile to the interest of the true owner and she has perfected her title to the suit property by way of adverse possession.

5. On notice, defendant Nos.1 and 3 appeared and filed their statement of objections, inter alia, contending that on 18.11.1964 the plaintiff’s father Abdul Aziz had sold the suit schedule property to one Muddamma under the registered Sale Deed, who in turn sold the suit property to defendant No.1 and father of defendant Nos.2 and 3, on 10.12.1971 and after purchase, the katha has - 5 - NC: 2024:KHC:31897 RSA No. 567 of 2017 been mutated in their names and they have constructed shops and let out to some tenants and defendants filed eviction petition against the tenants including the present plaintiff, the plea of adverse possession set up by the plaintiff is denied by the defendants.

6. The Trial Court, on the basis of the pleadings, framed the following issues: “1. Whether the plaintiff proves that she has perfected her title to the suit schedule property by way of adverse possession?

2. Whether the plaintiff proves that she is the absolute owner of the suit schedule property?

3. Whether the plaintiff proves that she has developed and constructed 3 shops towards southern side of the suit schedule property?

4. Whether the plaintiff proves that she has let out the 3 shops constructed by her to 3 tenants and collecting rents from the last 30 years?

5. Whether, the plaintiff proves the alleged interference?

6. Whether the defendants prove that the first defendant and father of defendants 2 and 3 have - 6 - NC: 2024:KHC:31897 RSA No. 567 of 2017 jointly purchased the suit schedule property from Smt. Muddamma on 10/12/1971?

7. Whether the defendants prove plaintiff is a tenant under them in one of the portions of the suit schedule property?

8. Whether the plaintiff is entitle for declaration and injunction?”

7. In order to substantiate her claim, plaintiff examined herself as P.W.1 and two witnesses as P.W.2 and 3 and marked documents at Exs.P.1 to P.64. On the other hand, defendant No.1 examined himself as D.W.1 and two witnesses as D.W.2 and 3 and marked documents at Exs.D.1 to D10.

8. The Trial Court, on the basis of the pleadings, oral and documentary evidence, arrived at a conclusion that : i. Plaintiff has failed to prove that she has perfected her title to the suit schedule property by way of adverse possession; - 7 - NC: 2024:KHC:31897 RSA No. 567 of 2017 ii. Plaintiff has failed to prove that she is the absolute owner of the suit schedule property And by the judgment and decree, the Trial Court dismissed the suit of the plaintiff.

9. Aggrieved, the plaintiff preferred appeal before the First Appellate Court. The First Appellate Court, while re-appreciating and reconsidering the entire oral and documentary evidence, concurred with the judgment and decree of the Trial Court. Aggrieved, the plaintiff is before this Court in the regular second appeal.

10. Heard Sri S.A. Khadri, learned counsel for the appellant and Sri Devaraju M., learned counsel for caveat / respondent No.4.

11. Learned counsel for the appellant submits that the Courts below have failed to consider the oral and documentary evidence produced by the plaintiff in a proper perspective, which clearly indicates that she is the absolute owner in possession and enjoyment of the suit - 8 - NC: 2024:KHC:31897 RSA No. 567 of 2017 schedule property from the date of the nominal sale deed dated 18.11.1964 and 10.12.1971. Learned counsel submits that the Courts below miserably failed to examine the clinching documents produced by the plaintiff is proved and the plaintiff has clearly established that a nominal sale was executed in favour of Muddamma and possession was not delivered to Muddamma. Further, from 1964 till 1998 the father of the plaintiff and the plaintiff have paid taxes to the municipal authority and they are in possession of the suit property and the purchasers have not taken steps to take possession of the suit schedule property from the plaintiff nor the khata is transferred in their name and that the registered sale deed is never acted upon. Learned counsel submits that the plaintiff has established that she is in continuous possession of the suit schedule property by way of adverse possession and that there arise substantial questions of law to be framed considered by this Court. - 9 - NC: 2024:KHC:31897 RSA No. 567 of 2017

12. Per contra, learned counsel for the respondents justified the judgment and decree of the Courts below and submits that the plaintiff has failed to prove her title by way of adverse possession by satisfying the ingredients of adverse possession and submits that against concurrent finding of facts recorded by the Courts below, the same does not warrant any interference under Section 100 CPC.

13. This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the material on record.

14. The claim of the plaintiff over the suit property is by way of adverse possession, nothing is forthcoming from the material produced by the plaintiff to indicate that from when the plaintiff’s possession became adverse to the knowledge of the defendant. The plaintiff’s plea is that she has perfected her title by way of adverse possession, to prove her adverse possession, the principles and essential ingredients that are necessary are that: - 10 - NC: 2024:KHC:31897 RSA No. 567 of 2017 (a) Possession must be open, clear, continuous and hostile to the claim or possession of the other party. (b) The essential ingredients must co-exist (i) nec vi i.e., adequate in continuity (ii) nec clam l.e., adequate in publicity (iii) nec precario adverse to a competitor, in denial of title and knowledge, which means the adverse possession is proved only when possession is peaceful, open, continuous and hostile, and merely a long period of possession, does not translate into a right of adverse possession.

15. The Apex Court in the case of Karnataka Board of Wakf vs. Government of India & others1 has considered the essential ingredients that are necessary for establishing the plea of adverse possession and also held that the plea based on title of the suit schedule property and plea of adverse possession are mutually, exclusive, inconsistent and the latter does not 1 (2004)10 SCC 779 - 11 - NC: 2024:KHC:31897 RSA No. 567 of 2017 begin to operate until the former is renounced and at para No.11 to 13 has held as under: "11. 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 "nec vi, nec clam, nec 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 v. Bibi Sakina, Parsinni v. Sukhi and D.N. Venkatarayappa v. State of Karnataka.) 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 - 12 - NC: 2024:KHC:31897 RSA No. 567 of 2017 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 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. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma']

12. A plaintiff filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. (See S.M. Karim v. Bibi Sakina) In P. Periasami v. P Periathambi this Court ruled that: "Whenever adverse possession is projected, inherent in the plea is that someone else was the owner of the property." The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. - 13 - NC: 2024:KHC:31897 RSA No. 567 of 2017 Dealing with Mohan Lal v. Mirza Abdul Gaffar that is similar to the case in hand, this Court held: "4. As regards first plea, inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and assertion independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e. up to completing the period his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."

13. As we have already found, the respondent obtained title under the provisions of the Ancient Monuments Act. The element of the respondent's possession of the suit property to the exclusion of the appellant with the animus to possess it is not - 14 - NC: 2024:KHC:31897 RSA No. 567 of 2017 specifically pleaded and proved. So are the aspects of earlier title of the appellant or the point time of disposition. Consequently, alternative plea of adverse possession by the respondent is unsustainable. The High Court ought not to have found the case in their favour on this ground."

16. The Apex Court in the case of Narasamma & Ors. vs. A. Krishnappa (Dead) through LRs.2 (Narasamma) has taken a similar view that when the plaintiff is claiming title over the property must specifically plead when such plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property. Having taken a plea that the sale deed executed by plaintiff’s father in favour of Muddamma is a nominal sale deed, which invariably means, that she is asserting her right over the suit property as an absolute owner, she must first disclaim her right of ownership and then plead and prove her assertion of her independent, hostile adverse 2 AIR 2020 SC 4178 - 15 - NC: 2024:KHC:31897 RSA No. 567 of 2017 the knowledge of transferor which conspicuously absent in the present case. Admittedly, the plaintiff pleads his title of ownership and possession by way of adverse possession, which are contradictory to each other. The Apex Court in the case of Narasamma has held at para No.16, 29, 31, 32, 33, 36 and 37, which read as under: "16. That brought the High Court to the main aspect which resulted in the appeal being allowed i.e. the failure of the appellants herein on their plea of adverse possession. Once again, there is an elaborate discussion on the various judicial pronouncements of this Court on the plea of adverse possession, emphasizing that the success of this plea requires the person claiming the same to prove that he is in possession and that, "his possession is “nec vi, nec clam, nec 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 dispossession of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.” - 16 - NC: 2024:KHC:31897 RSA No. 567 of 2017

29. We may also note that on the one hand, the appellants herein have sought to take a plea of bar of limitation vis-à-vis the original defendant claiming that possession came to them in 1976, with the suit being filed in 1989. Yet at the same time, it is claimed that the wife had title on the basis of these very documents. The claim of title from 1976 and the plea of adverse possession from 1976 cannot simultaneously hold. On the failure to establish the plea of title, it was necessary to prove as to from which date did the possession of the wife the defendant amount to a hostile possession in a peaceful, open and continuous manner. We fail to appreciate how, on the one hand the appellants claimed that the wife of the original defendant, Appellant 1 herein, had title to the property in 1976 but on their failure to establish title, in the alternative, the plea of adverse possession should be recognised from the very date.

31. The question which confronts us is not the aforesaid, but whether simultaneously a plea can be taken of title and adverse possession i.e. whether it would amount taking contradictory pleas. In this behalf, we may refer to the four judgments cited by the - 17 - NC: 2024:KHC:31897 RSA No. 567 of 2017 learned counsel for the respondent herein, which succinctly set forth the legal position.

32. In Karnataka Board of Wakf case, it has been clearly set out that a plaintiff filing a title over the property must specifically plead it. When such a plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property. In that context, it was observed in para 12 that“… The pleas on title and adverse possession are mutually inconsistent and the latter does not to operate until former renounced….”

33. The aforesaid judgment in turn relied upon the judgment in Mohan Lal (Deceased) Thr. LRs, which observed in para 4 as under: “4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor-in-title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e. - 18 - NC: 2024:KHC:31897 RSA No. 567 of 2017 up to completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.”

36. The possession has to be in public and to the knowledge of the true owner as adverse, and this is necessary as a plea of adverse possession seeks to defeat the rights of the true owner. Thus, the law would not be readily accepting of such a case unless a clear and cogent basis has been made out.

37. We may also note another judicial pronouncement in Ram Nagina Rai v. Deo Kumar Rai (Deceased) by LRs and anr. dealing with a similar factual matrix i.e. where there is permissive possession given by the owner and the defendant claims that the same had become adverse. It was held that it has to be specifically pleaded and proved as to when possession becomes adverse in order for the - 19 - NC: 2024:KHC:31897 RSA No. 567 of 2017 real owner to lose title 12 years hence from that time."

17. Thus, the party who pleads adverse possession in order to substantiate the plea of adverse possession, the three classic requirements which need to co-exist were again emphasized in Narsamma's case, as under: (a) Possession must be open, clear, continuous and hostile to the claim or possession of the other party. (b) The essential ingredients must co-exist: i) Nec vi i.e., adequate in continuity (ii) Nec clam i.e., adequate in publicity (iii) Nec precario meaning that the adverse to the competitor in denial of title and his knowledge.

18. The Apex Court in the recent decision in the case of Govt. of Kerala & Anr. Vs. Joseph & Ors.3 stated supra has held at para No.30 to 55, as under: "30. Before proceeding to do so, it is essential to take note of the law governing such a claim. After a perusal and consideration of various judgments 3 2023 SCC Online SC 961 - 20 - NC: 2024:KHC:31897 RSA No. 567 of 2017 rendered by this Court, the following principles can be observed:

31. Possession must be open, clear, continuous and hostile to the claim or possession of the other party; all three classic requirements must coexist- nec vi, i.e., adequate in continuity; nec clam, i.e., adequate in publicity; and nec precario, i.e., adverse to a competitor, in denial of title and knowledge; (a) In Radhamoni Debi v. Collector of Khulna, the Privy Council held that- “The possession required must be adequate in continuity, in publicity, and in extent to show that it is possession adverse to the competitor.” (b) Further, the Council Maharaja Sri Chandra Nandi v. Baijnath Jugal Kishore observed- “It is sufficient that the possession should be overt and without any attempt at concealment, so that the person against whom time is running ought, if he exercises due vigilance, to be aware of what is happening.” (c) A Bench of three judges of this Court in Parsinni v. Sukhi held that “Party claiming adverse possession must prove that his possession must be ‘nec vi, - 21 - NC: 2024:KHC:31897 RSA No. 567 of 2017 nec clam, nec precario’ i.e. 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.” (d) In Karnataka Board of Wakf v. Govt. of India (two-Judge Bench) it was held:— “It is a well-settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec 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.” This case was relied on in the case of M. Venkatesh v. Bangalore Development Authority (three-Judge Bench), Ravinder Kaur Grewal v. Manjit Kaur (three-Judge Bench). (e) This Court in a recent case of M Siddiq (D) through LRs v. Mahant Suresh Das (five-Judge Bench) reiterated this principle as under - “748. A person who sets up a plea of adverse possession must establish both - 22 - NC: 2024:KHC:31897 RSA No. 567 of 2017 possession which is peaceful, open and continuous - possession which meets the requirement of being ‘nec vi nec claim and nec precario’. To substantiate a plea of adverse possession, the character of the possession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. These requirements have to be duly established first by adequate pleadings and second by leading sufficient evidence.”

32. The person claiming adverse possession must show clear and cogent evidence substantiate such claim;

33. This Court in Thakur Kishan Singh v. Arvind Kumar (two-Judge Bench) held that - “5. A possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession…” - 23 - NC: 2024:KHC:31897 RSA No. 567 of 2017

34. Reference may also be made to M. Siddiq (supra).

35. Mere possession over a property for a long period of time does not grant the right of adverse possession on its own; (a) In Gaya Prasad Dikshit v. Dr. Nirmal Chander (two-Judge Bench),this court observed- “1… It is not merely unauthorised possession on termination of his licence that enables the licensee to claim title by adverse possession but there must be some overt act on the part of the licensee to show that he is claiming adverse title. It is possible that the licensor may not file an action the purpose of recovering possession of the premises from the licensee after terminating his licence but that by itself cannot enable the licensee to claim title by adverse possession. There must be some overt act on the part of the licensee indicating assertion of hostile title. Mere continuance unauthorised possession even for a period of more than 12 years is not enough.”

36. Reference may also be made to Arvind Kumar (supra); Mallikarjunaiah v. Nanjaiah (two-Judge Bench); Uttam Chand (supra). - 24 - NC: 2024:KHC:31897 RSA No. 567 of 2017

37. Such clear and continuous possession must be accompanied by animus possidendi - the intention to possess or in other words, the intention to dispossess the rightful owner; in Karnataka Board of Wakf (supra) it was observed- “…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…” (a) The case of Annakili v. A. Vedanayagam (two-Judge Bench) also shed light on this principle as under - “24. Claim by adverse possession has two elements : (1) the possession of the defendant should become adverse to the plaintiff; and (2) 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 - 25 - NC: 2024:KHC:31897 RSA No. 567 of 2017 animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession…” (b) In Des Raj v. Bhagat Ram (two-Judge Bench) this Court observed - “21. In a case of this nature, where long and continuous possession of the plaintiff- respondent stands admitted, the only question which arose for consideration by the courts below was as to whether the plaintiff had been in possession of the properties in hostile declaration of his title vis-à-vis his co-owners and they were in know thereof.” (c) This court in L.N. Aswathama v. P. Prakash (two-Judge Bench) had observed permissive possession or possession in the absence of Animus possidendi would not constitute the claim of adverse possession. (d) It was also held in the case of Chatti Konati Rao v. Palle Venkata Subba Rao (two-Judge Bench) - “15. Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. The - 26 - NC: 2024:KHC:31897 RSA No. 567 of 2017 person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed…” (Emphasis supplied)

38. Referring to the above judgment Subha Rao (supra) this Court has reiterated the cardinality of the presence of Animus possidendi in a case concerning adverse possession in Brijesh Kumar v. Shardabai (dead) by LRs. (two-Judge Bench).

39. Such a plea is available not only as a defence when title is questioned, but is also available as a claim to a person who has perfected his title;

40. The prior position of law as set out in Gurudwara Sahab v. Gram Panchayat Village Sirthala (two-Judge Bench) was that the plea of adverse possession can be used only as a shield by the defendant and not as a sword by the plaintiff. However, the position was changed later by the decision of this Hon'ble Court in the case of Ravinder Kaur (supra) had held that - “…Title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has - 27 - NC: 2024:KHC:31897 RSA No. 567 of 2017 perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession…”

41. The position in Ravinder Kaur (supra) was followed in Narasamma v. A. Krishnappa (Dead) Through LRs. (three-Judge Bench).

42. Mere passing of an ejectment order does not cause brake in possession neither causes his dispossession;

43. In Balkrishna v. Satyaprakash (two-Judge Bench) this Court held: “…Mere passing of an order of ejectment against a person claiming to be in adverse possession neither causes his dispossession nor discontinuation of his possession which alone breaks the continuity of possession.”

44. When the land subject of proceedings wherein adverse possession has been claimed, belongs to the Government, the Court is duty-bound to act with greater seriousness, effectiveness, care and circumspection as it may lead to Destruction of a right/title of the State to immovable property. In State of Rajasthan v. Harphool Singh (two-Judge Bench) it was held: - 28 - NC: 2024:KHC:31897 RSA No. 567 of 2017 “12. So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immovable property and conferring upon a third-party encroacher title where he had none.”

45. Further, in Mandal Revenue Officer v. Goundla Venkaiah (two-Judge Bench) it was stated: “…It is our considered view that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the court is duty-bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State to immovable property and give an upper hand to the encroachers, unauthorised occupants or land grabbers.”

46. A plea of adverse possession must be pleaded with proper particulars, such as, when possession became adverse. The court is not to travel beyond pleading to give any relief, in other words, the plea must stand on its own two feet. This - 29 - NC: 2024:KHC:31897 RSA No. 567 of 2017 Court has held this in the case of V. Rajeshwari v. T.C. Saravanabava (two-Judge Bench): “…A plea not properly raised in the pleadings or in issues at the stage of the trial, would not be permitted to be raised for the first time at the stage of appeal…”

47. It has also been held in the case of State of Uttrakhand v. Mandir Sri Laxman Sidh Maharaj (two-Judge Bench): “…The courts below also should have seen that courts can grant only that relief which is claimed by the plaintiff in the plaint and such relief can be granted only on the pleadings but not beyond it. In other words, courts cannot travel beyond the pleadings for granting any relief…”

48. Mandir Sri Laxman Sidh Maharaj (supra) was relied on in Dharampal (Dead) v. Punjab Wakf Board (two-Judge Bench) on the same principle.

49. Claim of independent title and adverse possession at time amount contradictory pleas. The case of Annasaheb Bapusaheb Patil v. Balwant (two-Judge Bench) elaborated this principle as: “15. Where possession can be referred to a lawful title, it will not be considered to be - 30 - NC: 2024:KHC:31897 RSA No. 567 of 2017 adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.”

50. This principle was upheld in the case of Mohan Lal v. Mirza Abdul Gaffar (two-Judge Bench) - “4. As regards the first plea, it is inconsistent the second plea. Having come possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the - 31 - NC: 2024:KHC:31897 RSA No. 567 of 2017 land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.”

51. The Court in Uttam Chand (supra) has reiterated this principle of adverse possession.

52. Burden of proof rests on the person claiming adverse possession.

53. This Court, in P.T. Munichikkanna Reddy v. Revamma (two-Judge Bench), it held that initially the burden lied on the landowner to prove his title and title. Thereafter it shifts on the other party to title by adverse possession. It was observed:— “34. The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, legal position has underwent complete change insofar as the onus is concerned : once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession….” - 32 - NC: 2024:KHC:31897 RSA No. 567 of 2017

54. The Court reiterated this principle in the case of Janata Dal Party v. Indian National Congress (two- Judge Bench): “…the entire burden of proving that the possession is adverse to that of the plaintiffs, is on the defendant…”

55. The State cannot claim the land of its citizens by way of adverse possession as it is a welfare State. [State of Haryana v. Mukesh Kumar (two-Judge Bench)].

19. In order to constitute adverse possession, the possession must be adequate in continuity and publicity and open without any interruption and with the specific knowledge of the owner. The plaintiff has to prove that she had exclusive and open possession of the suit property adversely for a period exceeding 12 years and the same was never interrupted or disturbed. Nothing is forthcoming from the material placed by the plaintiff to indicate that she has proved and she has perfected her title by way of adverse possession. - 33 - NC: 2024:KHC:31897 RSA No. 567 of 2017

20. The Trial Court, taking into consideration the entire oral and documentary evidence, held that the plaintiff has failed to prove that she has perfected her title over the suit property by way of adverse possession. The First Appellate Court, being the last-fact finding Court, has re-appreciated and reconsidered the entire oral and documentary evidence independently and affirmed the judgment and decree of the Trial Court.

21. The plaintiff has taken a contention that the sale deed is a nominal one and by playing fraud, defendant Nos.1 and 2 have got the sale deed executed in their favour, there is no specific pleading with regard to fraud or misrepresentation, neither the sale deed executed by her father in the year 1964 in favour of Muddamma is challenged nor the sale deed executed by Muddamma in favour of the defendants, nor are there any materials forthcoming to indicate that the sale deed executed is only a nominal one, the plaintiff has miserably failed to establish her title by way of adverse possession as rightly - 34 - NC: 2024:KHC:31897 RSA No. 567 of 2017 held by the Courts below. No substantial question of law arises for consideration in the present appeal against the concurrent findings of facts recorded by the Courts below warranting no interference to be dealt with under Section 100 CPC. Accordingly, this Court pass the following: ORDER i. ii. Regular Second Appeal is hereby dismissed. Judgment and decree of the Courts below stand confirmed. In view of dismissal of the appeal, pending I.A.Nos.1/2017 to 3/2017 do not survive for consideration. Sd/- (K.S. HEMALEKHA) JUDGE MBM List No.: 2 Sl No.: 26