R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE23D DAY OF DECEMBER, 2020 PRESENT THE HON' BLE MR. JUSTICE B. VEERAPPA AND THE HON’BLE MR. JUSTICE K. NATARAJAN REGULAR FIRST APPEAL No.965/2013(DEC/INJ) BETWEEN:
1. . SRI. R. ANTHONY JOSEPH S/O LATE SCHOOL MASTER @ J.RAYAPPA, AGED ABOUT64YEARS, R/AT DORESANIPALYA, BANNERGHATTA ROAD, BANGALORE-560 076. SMT. C. MEENAKSHI, D/O C.G. MUTTANNA, AGED51YEARS, R/O No.145, 3RD CROSS, R.K. GARDEN, BEHIND GOWRI APARTMENT, NEW B.L. ROAD, BANGALORE. (CAUSE TITLE AMENDED AS PER COURT
ORDERDATED77.2017) 2 . SMT.MARIA GORRETTI, D/O LATE SCHOOL MASTER @ J.RAYAPPA, AGED ABOUT52YEARS, 2 3 . SRI.JOHN BOSCO S/O LATE SCHOOL MASTER @ J.RAYAPPA, AGED ABOUT54YEARS, ALL ARE RESIDENTS OF DORESANIPALYA, BANNERGHATTA ROAD, BANGALORE-560 076. ...APPELLANTS (BY SRI R. RAVI, ADVOCATE FOR APPELLANT No.1 SRI S.P. SHANKAR, SENIOR COUNSEL A/W SMT. MAMATHA G. KULKARNI, ADVOCATE FOR APPELLANT Nos.2 &
3) AND: SRI FRANCIS BILLOMANE, PARISH PRIEST, CHURCH OF MARY IMMACULATE, DORESANIPALYA, BANNERGHATTA ROAD, BANGALORE-560079. …RESPONDENT (BY SRI R. A. DEVANAND, ADVOCATE) …. THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION96OF THE CODE OF CIVIL PROCEDURE, PRAYING TO SET ASIDE THE IMPUGNED
JUDGMENTAND DECREE DATED2204.2013 PASSED IN O.S. No.6674/2009 ON THE FILE OF THE XLIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE, BY ALLOWING THIS APPEAL AND DECREEING THE SUIT AS PRAYED FOR IN SO FAR AS IT RELATES TO ADVERSE POSSESSION IS CONCERNED. THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENTIS COMING ON FOR PRONOUNCEMENT OF
JUDGMENTTHIS DAY, B.VEERAPPA, J, DELIVERED THE FOLLOWING:
3.
JUDGMENTThe plaintiffs have filed the present regular first appeal against the impugned judgment and decree dated 22nd April, 2013 made in O.S.No.6674/2009 on the file of the XLIV Additional City Civil and Sessions Judge, Bangalore (CCH-45) decreeing the suit of the plaintiffs in-part for permanent injunction as claimed by them and restraining the defendant or anybody claiming through him from interfering with their peaceful possession and enjoyment of the schedule property until they are evicted under due process of law and dismissed the suit for declaration of plaintiffs’ right and title over the suit schedule property.
2. The parties herein are referred to as per their rankings before the Court below. I FACTS OF THE CASE3 The plaintiffs filed a suit for declaration and permanent injunction mainly contending that they are the absolute owners in peaceful possession and enjoyment of the suit schedule property bearing Sy.No.152/5 situated at Bilekahalli village, Begur Hobli, 4 Bangalore South Taluk totally measuring 1 acre 4 guntas morefully described in the plaint schedule. It is further contended that during the year 1929, the reverend Priest Albert has orally gifted the suit schedule property in favour of School Master alias J.Rayappa at Doresanipalya, Begur Hobli, Bangalore, who was cultivating the land by growing crops; the said area was developed as the adjacent land owners formed the layout, and some people had constructed the houses on the Western and Eastern side of the suit property.
4. It was further contended that School Master alias J.Rayappa died on 18.10.1988 and after his death, the plaintiffs have succeeded the estate of the deceased School Master alias J.Rayappa. Since the plaintiffs were in possession and enjoyment of the suit schedule property with all rights, title and interest, the names of all the legal heirs of School Master alias J.Rayappa were entered in the Records of Rights, Index of Land and R.T.C. extracts which were standing in the name of School Master alias J.
Rayappa and they continued to be in possession and enjoyment of the suit schedule property. It is further contended that since 1929, their family members were in possession and enjoyment of the suit 5 schedule property and except them, no one was having title or possession over the schedule property. The suit schedule property stood in their father’s name i.e., the professional name, “School Master”. Recently, they claimed for change of revenue entries and filed an application before the Tahsildar which is pending for consideration.
5. The plaintiffs further contend that the defendant is stranger to them and he is neither relative nor share holder to the suit property in any manner. The defendant having no interest, title or possession over the schedule property, on 13.10.2009 at about 9.00 a.m., along with his henchmen tried to interfere with the peaceful possession and enjoyment of their suit schedule property in order to dig the land for the purpose of putting up construction without any intimation or prior permission. When they protested against the same, the defendant and his supporters went away stating that they would come and continue illegal acts of digging the land at any moment. It is further contended that the defendant is a Parish Priest and is an influential person in the locality. The cause of action arose for the plaintiffs on 13.10.2009 at about 9.00 6 a.m, when the defendant along with his supporters tried to put up the construction of the compound wall and with great difficulty, the plaintiffs resisted the work of defendant and have lodged a complaint against him since the defendant had no right or possession or documents whatsoever from whomsoever and the defendant is not in possession of the suit schedule property at any point of time. The survey reports also showed that the plaintiffs are in possession of the suit schedule property and even they have been in continuous, uninterrupted and peaceful possession of the suit schedule property. Hence, they filed a suit for declaration and permanent injunction against the defendant in respect of the suit schedule property. II PLEADINGS IN SUPPORT OF AMENDMENT CLAIMING ADVERSE POSSESSION6 By way of amendment to the plaint, the plaintiffs further contended that the plaintiffs are in continuous, uninterrupted and peaceful possession of the suit schedule property. The possession of the suit schedule property was with the father of plaintiffs from the year 1929 till his death on 7 18.10.1988. Subsequently, after the death of School Master alias J.
Rayappa, they being the legal heirs are in absolute possession and enjoyment of the suit schedule property without any obstruction from anybody else. Hence, they contended that since they have perfected their title over the suit schedule property, the suit be decreed in their favour. III DEFENDANT FILED WRITTEN STATEMENT7 The defendant filed his written statement denying the averments made in paragraphs 3 and 4 of the plaint and contended that the School Master alias J.
Rayappa, Doresanipalya, Bangalore South was only a Teacher in the School appointed by the School Administration, which is under the Parish Priest of Doresanipalya. The said Parish Priest of the Church of Mary Immaculate, Doresanipalya is existing since more than 100 years and the School Master alias J., Rayappa was only a teacher appointed by the School Master, the then Parish Priest of the Church of Mary Immaculate and hence, the Gift Deed executed in favour of the School Master alias J., Rayappa as alleged is totally false and baseless. He further contended that the suit filed by the plaintiffs is 8 not maintainable since he is disputing the execution of the Gift Deed, R.T.C. and Pahani produced by the plaintiffs in support of their case. He also contended that mere production of Pahani and RTC will not give the title to claim the relief of injunction as they are only the auxiliary documents and without document of title, the relief cannot be claimed. He has also contended that the RTC extracts stand in the name of the School Master i.e., the Parish Priest, Church of Mary Immaculate, Doresanipalya, Bannerghatta Road, Bangalore.
8. The defendant further contended that there was no cause of action against him and the very suit filed by the plaintiffs for the relief of declaration and permanent injunction is not maintainable and hence, sought to dismiss the same. IV ADDITIONAL WRITTEN STATEMENT BY THE DEFENDANT9 After amendment of the plaint, the defendant filed additional written statement and contended that all the church properties belong to the Arch-diocese of Bangalore where the Arch- Bishop of Bangalore is the owner since, the Parish Priests appointed 9 in every Church are in-charge of Church, religious activities, schools and other institutions and head of all other administrative work, all the revenue documents like Khatha extract, Pahani and RTC stand in the name of School Master that is Parish Priest of Church of Mary Immaculate, Doresanipalya, Begur Hobli, Bangalore South Taluk, Bangalore.
10. The defendant has further contended that the averments made in paragraph-5 of the amended plaint are only concocted stories; it is only after filing of the written statement and they have no locus standi to file the suit. Hence, the suit is not maintainable. It is further contended that when the School Master alias J.
Rayappa was only a teacher in the school appointed by the School Administration which is under the Parish Priest of Doresanipalya, Bangalore, question of execution of Gift Deed in favour of School Master Alias J Rayappa is totally false. The entire land bearing survey number 152/5 is under the Church and he is the Parish Priest, Church of Mary Immaculate, and the entire property belongs to the Church since its inception for more than 100 years and he is in possession and enjoyment of the School and other institutions in 10 the same survey number 152/5. Therefore, the suit filed by the plaintiffs is liable to be dismissed. V ISSUES AND ADDITIONAL ISSUES FRAMED BY THE TRIAL COURT11 On the aforesaid pleadings, the trial Court framed the following issues and additional issues:
1. Whether the plaintiffs prove the lawful possession of the suit schedule property as on the date of the suit?.
2. Whether the plaintiffs prove the interference by the defendant?.
3. Whether the plaintiffs are entitled to the reliefs claimed?.
4. What order or decree?. Additional issues framed on 14.2.2012 1. Whether the plaintiffs prove the title to the suit schedule property?.
2. Whether the plaintiffs prove that during the year 1929 the Reverend Priest Albert orally gifted the suit schedule property in favour of School Master alias R.Rayappa?. 11 3. Whether the plaintiffs prove that they have perfected their title to the suit schedule property by adverse possession?.
4. Whether the suit is not maintainable in law?.
5. Whether defendant proves its title and possession of the suit schedule property?.
6. Whether the plaintiff is entitled to the relief of declaration as prayed for?. VI WITNESSES EXAMINED BY THE PARTIES12 In order to prove the case of the plaintiffs, the plaintiff No.1 is examined as PW.1 and got marked the material documents - Ex.P1 to P71. They have also examined two witnesses as PWs.2 and 3 in support of their case. In order to disprove the case of the plaintiffs, the defendant examined D.Ws.1 to 3 and material documents Exs.D.1 to 19. VII FINDINGS RECORDED BY THE TRIAL COURT13 The trial Court considering the entire oral and documentary evidence on record has recorded a finding that the 12 plaintiffs have proved their lawful possession of the suit schedule property as on the date of the suit and also interference by the defendant. With regard to additional issue No.3, the trial Court recorded a finding that the plaintiffs have utterly failed to prove the oral gift and also their title by way of adverse possession. They have proved that they are in possession of the suit schedule property. The trial Court further recorded a finding on additional issue No.1 that the plaintiffs have failed to prove their title over the suit schedule property that during the year 1929, the then Rev. Parish Priest Albert orally gifted the schedule property in favour of School Master J.
Rayappa and since then J.
Rayappa i.e., the father of the present plaintiffs was in possession of the suit schedule property. Hence, the plaintiffs have failed to prove that they have perfected their title to the suit schedule property by adverse possession. Accordingly, decreed the suit in part. It has also recorded a finding that the defendant has failed to prove his title and possession of the suit schedule property. Accordingly, the trial Court by the impugned judgment dismissed the suit for declaration of title over the suit schedule property and decreed the suit for permanent injunction as claimed by the plaintiffs in the plaint and 13 restrained the defendant or anybody claiming through him from interfering in plaintiffs’ peaceful possession and enjoyment of the schedule property until they are evicted under due process of law.
14. Hence, the present regural first appeal is filed by the plaintiffs only in so far as non granting of declaration of title in respect of the suit schedule property, but the defendant has not filed any appeal against the impugned judgment and decree granting permanent injunction in favour of the plaintiffs.
15. Heard the learned Counsel for the parties to the lis. VIII ARGUMENTS ADVANCED BY THE LEARNED SENIOR COUNSEL FOR APPELLANT Nos.2 AND316. Sri S.P. Shankar, learned Senior Counsel for appellant Nos.2 and 3 contended with vehemence that the impugned judgment and decree passed by the trial Court dismissing the suit of the plaintiffs for declaration of title is erroneous and contrary to the material on record and cannot be sustained. He would further contend that the trial Court erred in not decreeing the suit for declaration by way of 14 adverse possession in respect of the suit schedule property in view of the admission made by the defendant in his pleadings regarding continuous uninterrupted possession of the plaintiffs’ family for more than 12 years i.e., 75 to 80 years in respect of the suit schedule property and on that ground alone, the impugned judgment and decree passed by the trial Court rejecting the title of the plaintiffs cannot be sustained. He would further contend that the learned trial Court ought to have considered the documents produced by the plaintiffs, in right perspective i.e., the Survey Tippani of the property bearing Sy.No.152/5 as per Ex.P.1, RTC extracts for the period from 1989-90 till 2008 in respect of the property in question standing in the name of ‘School Master’ as per Exs.P.9 to 14, the application submitted by P.W.1 to the Tahsildar, Bangalore South to transfer the Khatha of Sy.No.152/5 in favour of plaintiff No.1 on the ground the original owner ‘School Master @ Rayappa’ died as Ex.P.15, Mutation extracts, RTC extracts for the period from 2000-01 to 2011-12, survey sketches, survey records, Hissa Tippani in respect of suit property showing the name of School Master @ Rayappa as per Exs.P.22 to 50, Tax paid receipts dated 16.3.1978, 25.6.1981 and 8.9.1986 as per Exs.P.65 to 67, 15 RTC Extract for the year 2011-12 showing that after the death of School Master @ J.
Rayappa, the name of plaintiff No.1 is entered in the RTC in respect of the suit schedule property - Ex.P.69.
17. The learned Senior Counsel would further contend that the Court below erred in holding that the plaintiffs are claiming ownership rights under the oral Gift Deed and at the time of filing of the suit, they had not admitted the defendant as the owner of the suit property. As admitted by the plaintiffs, initially they had filed a suit against the defendant for bare injunction, subsequently the plaint came to be amended and a declaratory relief of adverse possession was claimed by them and at the time of amendment and in their evidence, the plaintiffs have admitted that the defendant was the absolute owner of the suit property and they are claiming adverse possession against the true owner i.e., Reverend Priest Albert representing the defendant in the year 1929, who had orally gifted the suit property in favour of the plaintiffs’ father School Master @ J.
Rayappa, which material aspect has not been considered by the trial Court. He would further contend that the plaintiffs are claiming title and possession based on continuous 16 adverse possession against the defendant in terms of Section 27 of the Limitation Act. When the meaning of Section 27 is expanded, the plaintiffs can confer title by adverse possession. He would further contend that in the written statement at paragraphs-6 and 7 as well as in the additional written statement at paragraph-8, the defendant has denied the title of the plaintiffs contending that the School Master alias J.Rayappa was only appointed by the School Administration as a teacher in the school and the trial Court has not considered the entire material on record in proper perspective and thereby erroneously dismissed the suit of the plaintiffs for declaration of title. Therefore, he sought to allow the present regular first appeal.
18. In support of his contentions, the learned Senior Counsel relied upon the following dictums of the Hon’ble Supreme Court: i) M.Kallappa Setty –vs- M.V. Lakshminarayana Rao reported in AIR1972SC2299– paragraphs-5 and 6; ii) Collector of Bombay –vs- Municipal Corporation of the City of Bombay and Others reported in AIR1951SC469– paragraphs 18, 19 and 23; 17 iii) Prem Singh and Others –vs- Birbal and Others reported in AIR2006SC3608– paragraphs 11 and 20; iv) Janatha Dal Party, Bangalore –vs- The Indian National Congress and Others reported in ILR2014Kar. 4726 – paragraphs 116, 117 and 118; the same also referred in AIR2014SC1062paragraph-12; v) Yeshwantrao Laxmanrao Ghatge and Another –vs- Baburao Balla Yadav (dead) reported in AIR1978SC941– paragraph-5; vi) Kshitish Chandra Bose v. Commissioner of Ranchi reported in AIR1981SC707– paragraphs-8 and 9; vii) State of W.B., vs. The Dalhousie Institute Society reported in AIR1970SC1778paragraphs-16 and 17; viii) Bondar Singh and others vs. Nihal Singh and others reported in (2003) 4 SCC161 paragraph -5; ix) Kalika Prasad and Another vs. Chhatrapal Singh (Dead) by Lrs. reported in (1997) 2 SCC544 x) Sharadamma v. Mohammed Pyrejan reported in AIR2015SC3747– Paragraph – 6; 18 xi) Thomson Press (India) Ltd v. Nanak Builders and Investors P.Ltd., and Others reported in AIR2013SC2389Head Note – A; xii) Laliteshwar Prasad singh and others vs. S.P. Srivastava (dead) through legal representatives reported in (2017) 2 SCC415 Head Note – B, Paragraphs 17-19; xiii) Vidhyadhar vs. Mankikrao and Another reported in AIR1999SC1441 Section 100 of the Evidence Act; xiv) Ravinder Kaur Grewal and Ors. Vs. Manjit Kaur and Ors. Radhakrishna Reddy (D) Through Lrs. V. G. Ayyavoo and Ors. reported in AIR2019SC382719. Sri R. Ravi, learned Counsel appearing for appellant No.1 adopted the arguments advanced by Sri S.P. Shankar, learned Senior Counsel appearing for appellant Nos.2 and 3. IX ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR RESPONDENT20 Per contra, Sri R.A. Devanand, learned Counsel appearing for the respondent-defendant contended that since the 19 plaintiffs at paragraph-3 of the plaint are claiming that they are the absolute owners in peaceful possession and enjoyment of the suit schedule property and defendant is stranger to them and to suit schedule property, question of claiming title by way of adverse possession would not arise. He further contended that at paragraph-4 of the plaint, the plaintiffs have averred that from 1929 to 1988, their father School Master J.
Rayappa was owner by virtue of the oral Gift Deed and after the year 1988, the plaintiffs are in continuous possession. It is further contended that the plaintiffs have not admitted the ownership of the property by the defendant. Unless and until the ownership is admitted by the plaintiffs, they cannot seek adverse possession against true owner. He would further contend that at paragraph-8 of the additional statement, the plaintiffs have stated that defendant is stranger to them. It is specifically stated in paragraphs-11a, that the plaintiffs have not admitted the ownership of the property by the defendant. The name of the owner is neither mentioned in the prayer of the plaint nor in the cause title or there is any averment. He would further contend that in Ex.P.27 – the RTC for the year 2007-08, column No.9 shows the name of the Khatedaar and possession as 20 the ‘School Master’ and use of the land as ‘building’. Ex.P.11 – RTC for the years 1989 to 1994, column Nos.9 and 13, show the name of the Khatedaar and possession as the ‘School Master’ and use of the land as ‘wet’. Ex.P.12 RTC for the years 1976-80 Column Nos.9 and 12 shows the name of the Khatedaar and possession as the ‘School Master’ and cultivators column is shown as ‘S. Anantharaya’. The trial Court considering the entire material on record has rightly dismissed the suit of the plaintiffs for declaration and erroneously granted permanent injunction restraining the defendant from interfering with the plaintiffs’ peaceful possession and enjoyment of the suit schedule property. He further contended that the trial Court ought not to have granted permanent injunction in favour of the plaintiffs and this Court being an Appellate Court exercising the powers under Order 41 Rule 33 r/w Section 107 of the Code of Civil Procedure (for short, hereinafter referred to as ‘CPC”), can declare the ownership of the property in question by the defendant.
21. The learned Counsel for the defendant further contended that in the absence of admitting the ownership of the property by 21 the defendant, the very prayer sought by the plaintiffs for adverse possession is not maintainable. He would further contend that the name of the owner of the property in question has neither been mentioned in the cause title nor in the plaint averments. Therefore, the trial Court ought not to have granted permanent injunction in favour of the plaintiffs.
22. The learned Counsel for the defendant would further contend that this Court while dismissing the regular first appeal exercising the powers under Order 41 Rule 33 of the Code of Civil Procedure can also set aside the decree for permanent injunction granted in favour of the plaintiffs.
23. The learned Counsel for the defendant further contended that even though the defendant has neither filed any appeal or cross appeal as contemplated under the provisions of Order 41 Rule 22 of CPC, still the defendant can contend that the trial Court is not justified in passing the impugned judgment and decree granting injunction as the entire material on record would clearly depict that the defendant is the absolute owner and in possession of the suit schedule property, but the same has been erroneously considered 22 by the trial Court and thereby has granted permanent injunction in favour of the plaintiffs is contrary to law. As such, he sought to declare the right of ownership of the suit property in favour of the defendant.
24. In support of his contentions, the learned Counsel for the respondent-defendant relied upon the following judgments: i) State of Punjab and Others –vs- Bakshish Singh reported in (1998) 8 SCC222– paragraphs 7, 8, 9, 10 and 11; and ii) Ravinder Kumar Sharma –vs- State of Assam and Others reported in (1997) 7 SCC435 Therefore, he sought to dismiss the regular first appeal filed by the appellants-plaintiffs. X THE POINTS FOR DETERMINATION25 In view of the aforesaid rival contentions urged by the learned Counsel for the parties, the points that arise for our consideration in the present regular first appeal are:
23. “i) Whether the plaintiffs have made out a case to interfere with the impugned judgment and decree passed by the trial Court dismissing the suit for declaration of title by adverse possession?. And ii) Whether the defendant has made out a case to interfere with the impugned judgment and decree passed by the trial Court granting permanent injunction in favour of the plaintiffs and to declare that he is the owner of the suit schedule property in the facts and circumstances of the present case?.” XI CONSIDERATION26 We have given our thoughtful consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material including the original records carefully.
27. The plaintiffs had filed a suit for declaration and permanent injunction against the defendant contending that they are the owners in peaceful possession and enjoyment of the suit 24 schedule agricultural property and during the year 1929, the Reverend Priest Albert has orally gifted the schedule property, in favour of School Master alias J.
Rayappa, at Doresanipalya, Begur Hobli, Bangalore and he has been in possession and enjoyment of the same till he died i.e., on 18.10.1988. After his death, the plaintiffs have succeeded intestate of the deceased School Master alias J.
Rayappa. Since the plaintiffs are in possession and enjoyment of the suit schedule property with all right and title, all the documents such as survey Records of Rights and Records of Right, Index of Land and RTC extract stand in the name of School Master alias Rayappa and they continued to be in possession and enjoyment of the suit schedule property.
28. It is the further case of the plaintiffs that they are in possession and enjoyment of the suit schedule property and except them, no one is having title or possession over the same and the Records of Right and Index of Land have not been changed so far and the khatha column in RTC in respect of the suit schedule property stands in their father’s name i.e., the professional name ‘School Master’. It is further contended in the plaint that the 25 defendant is stranger to the plaintiffs; has got no right, title or interest over the suit schedule property; and he is trying to interfere with their peaceful possession and enjoyment of the suit schedule property. It is further contended that though the defendant has no right or possession document of whatsoever from whomsoever, at any point of time, he is not in possession of the property. The prayer in the plaint is to declare that plaintiffs are owners of the suit schedule property having perfected their title and interest by adverse possession and for permanent injunction.
29. On careful reading of the plaint, it clearly depicts that at one breath, the plaintiffs claim that they are the absolute owners in peaceful possession and enjoyment of the suit schedule property by virtue of the oral Gift Deed and at another breath, they contend that after the death of their father, School Master alias J.
Rayappa in the year 1988, they have succeeded the estate of the deceased and they are in possession and enjoyment of the suit schedule property with all rights and title. Further they contend that the defendant is stranger to them. In the entire plaint averments, they have not admitted the ownership of the defendant in respect of the 26 suit schedule property. Therefore, the very suit filed by the plaintiff with regard to first prayer to declare them as absolute owners of the suit schedule property having perfected their right, title and interest by adverse possession is not maintainable in view of the provisions of Article 65 of the Limitation Act. The plaintiffs have proved that they are in lawful possession of the suit schedule property as on the date of filing of the suit and also interference by the defendant, but have failed to prove that during 1929, the Reverend Priest Albert had orally gifted the suit schedule property in favour of their father – School Master @ J.
Rayappa as well as they have failed to prove that they have perfected their title over the suit schedule property by way of adverse possession.
30. The trial Court has also recorded a finding on issue No.5 that, the defendant has failed to prove his title and possession of the suit schedule property. Plaintiff No.1 also examined himself as P.W.1, who in his examination in chief has stated that they have filed a suit against the defendant for the relief of declaration that they are the absolute owners of the property in question having perfected their right, title and interest by way of adverse possession 27 and consequential relief of permanent injunction. He has also stated in paragraph-3 of his evidence that they are the absolute owners and in peaceful possession and enjoyment of the agricultural land bearing Sy.No.152/5 situated at Bilekahalli village, Begur Hobli, Bangalore South Taluk measuring 1 acre 4 guntas. He has also deposed in his evidence that the property in question was orally gifted in favour of his father - School Master @ J.Rayappa in the year 1929 by the Reverend Priest Albert and his father was cultivating the said land by growing crops which area has been developed as the adjacent land owners have formed a layout. His father died in the year 1988 and the plaintiffs are in possession and enjoyment of the suit property with all right, title and interest and all the documents i.e., Survey Records of Right, Record of Rights, Index of Land and RTC extract stand in the name of his father School Master @ J.
Rayappa, but the same has been cancelled without issuing any notice to them. Therefore, they filed a revision petition before the Deputy Commissioner, Bangalore District and the same is pending adjudication. It is further stated that defendant is a Parish Priest and is an influential person in the locality. He may come at any moment with his men and materials 28 and disturb their peaceful possession and enjoyment of the suit schedule property of the plaintiffs. Though defendant has no manner of right, title and interest in the property, he is trying to interfere with the same. It is further contended that their father and they continued to be in continuous long period of possession for more than 85 to 90 years and therefore, they are in lawful possession as true owners and have perfected their title by adverse possession. There is an improvement in the evidence of P.W.1 which is contrary and inconsistent to the plaint averments.
31. In his cross-examination, P.W.1 has denied the suggestion with regard to suit schedule property that in Ex.P.1, the name of the School Master is shown. He admits that in Exs.P.2 is pertaining to his father’s pension and he retired from service on 1.4.1963; there is no mention of ‘School Master’ in Exs.P.2 and 3; Ex.P.4 is the tax paid receipt for having paid the balance tax in the name of the ‘School Master’; his father joined the Church in his early age of 16 and after completion of 18 years, he was appointed as ‘School Master’ in the said School since 1930 and all the transactions, Management and activities of the School were looked 29 after by his father. Ex.D.1 is the letter written by J.
Rayappa, School Master to the Manager of the Primary School showing that he was the Manager of the School; another letter showing that his father was appointed as School Master and retired; he has signed Ex.P.7 – the Sale Deed dated 7.3.1951 as a witness; Ex.P.41, shows the name of Albert with respect to Sy.No.152/5; Ex.P.42 which is the document of the year 1924, showing the name of ‘School Master; Ex.P.43 does not clearly depict Sy.No.152/5; Ex.P.54 is a copy of the complaint lodged by him. He has denied that the suit schedule property was given to J.
Rayappa, School Master by way of oral gift. He admits that his father was working as School Master/Teacher in a school run by the Church and he retiring from service on 1.4.1963 and after Exs.P.2 and 3, the documents which are relating to the pension of J.Rayappa are not referring him as the School Master. He further deposes that his father had joined service of the Church in his early age of 16 years and after completion of 18 years, he was appointed as School Master in the said School. The father of the Church was managing the School and its activities. He had shown his ignorance that his father was removed from the services. According to him, the 30 Fathers of the Church are managing the School and its activities. He further denies the suggestion that all the previous documents are relating to the Church and in respect of the suit property, the Father of the Church is mentioned as Parish Priest and subsequently, the name of ‘School Master’ is mentioned on the ground that the Parish Priest himself was managing the School. The persons, who come to the Church as a Parish Priest Father are working as correspondent Manager and looking after the administration of the School and the Father had no authority to sell the School or School building or to mortgage the said property in favour of any other persons. Though it was suggested that J.
Rayappa was working only as a School Teacher and there was no oral Gift in his favour in respect of the schedule property, the same was denied by him.
32. P.W.2 –Sri C. Joseph, who is the son of late Chinnappa, has deposed that in the year 1929 Reverend Priest Albert had orally gifted the agricultural land bearing Sy.No.152/5 situated at Bilekahalli village to an extent of 1 acre 4 guntas in favour of School Master J.
Rayappa, who was the father of plaintiff No.1. The 31 father of the plaintiffs was cultivating the land by growing crops and the said land has been developed. The father of plaintiff No.1 – School Master died in the year 1988 and after his death, the plaintiffs have jointly succeeded the estate of the deceased School Master @ J.
Rayappa. Since then the plaintiffs are in possession and enjoyment of the suit property with right, title and interest and defendant, though has any right, title or interest over the suit schedule property, is trying to interfere with their peaceful possession. The defendant was never in possession of the suit schedule property. In his cross-examination, P.W.2 has deposed that since his childhood, he has seen the father of P.W.1 - J.Rayappa was working as Head Master in the School situated at Doresanipalya. He has admitted that the Church and School were used to be managed by Parish Priest, who used to come every year to the Church as Father. One albert was Parish Priest in the year 1926. He has denied that the same Albert was Parish Priest in the year 1967 also. Though he admits that he has not produced any document to show that Sy.No.165/13 was given to his father by Parish Priest Albert by way of oral Gift, he has deposed that the 32 said property was gifted to his father on the ground that his father was working as '’Mali'.
33. P.W.3 – Sri Santhojappa also has deposed on par with the evidence of P.Ws.1 and 2 that in the year 1929, Reverend Priest Albert had orally gifted the agricultural land bearing Sy.No.152/5 situated at Bilekahalli village, Bangalore South measuring 1 acre 4 guntas in favour of School Master J.
Rayappa, the father of plaintiff No.1 and he continued to be in possession till the year 1988. After his death, the plaintiffs have succeeded to the estate of the deceased – School Master J.
Rayappa and are in possession and enjoyment of the suit schedule property with all right, title and interest. He has further deposed that the plaintiffs have been in continuous peaceful possession and enjoyment of the suit schedule property for more than 12 years. In his cross-examination, he has deposed that since childhood, he knew the plaintiffs, who were cultivating the land, but now they are not doing anything as the cultivation is stopped during the period of Rayappa Master. He has further deposed that he was cultivating the said land after his death 33 upto ten years. He has further denied that the Father was the head of the Church and School.
34. On careful reading of the evidence of P.Ws.1 to 3 and the averments in the plaint, it clearly depicts that in the plaint, the plaintiffs claim that they are the owners of the suit schedule property by virtue of the oral Gift Deed executed in favour of their father, School Master J.
Rayappa, who was cultivating the said land by growing crops and was in possession and enjoyment till his death 1988 and thereafter they are in continuous possession and enjoyment of the suit schedule property and hence, had sought for declaration of title by adverse possession. Either in the plaint averments or in the evidence of P.Ws.1 and 2, they have admitted the ownership of the defendant in respect of the suit schedule property, but have contended that the father of the plaintiffs’ was the owner and subsequently, they have succeeded the right, title and interest over the property of their father and defendant is stranger; the Defendant has no title or right in respect of the property in question, which clearly indicates that the plaintiffs at one breath claiming that they are the owners are seeking for 34 declaration of title and permanent injunction and at another breath, they are saying that defendant is stranger to them and has no right, title or interest over the suit schedule property. The plaintiffs contend that they are in possession of the suit schedule property for more than 12 years by way of adverse possession. As already stated supra, unless the plaintiffs admit the ownership of the defendant in respect of the suit schedule property, they cannot claim adverse possession against the true owner claiming title over the schedule property. Therefore, the very suit filed by the plaintiffs for declaration of title by adverse possession was not maintainable.
35. In his examination-in-chief, D.W.1 has deposed that he is owner of the property in question; The father of the plaintiffs’ – School Master @ J.
Rayappa was appointed only to manage the school and not the owner, but the defendant was the owner of the school. He has further deposed, that in the suit schedule property, there is a school and play ground belonging to the defendant for more than 100 years. He has denied the averments with regard to execution of the oral Gift Deed by the then Reverend Parish Priest 35 in favour of the School Master alias J.
Rayappa at Doresanipalya, Bangalore Hobli; that the father of the plaintiffs was in possession and enjoyment of the suit schedule property since 1929 and the RTC extract of the school property is standing in the name of the plaintiffs’ father Professional name ‘School Master’ and the averment at para-5 of the plaint, is a created story by the plaintiffs. Therefore, the defendant contended that the very suit filed by the plaintiffs is not maintainable. Nothing has been elicited in his cross-examination to disbelieve his evidence.
36. Sri D. Chowrappa @ Perianna, who is examined as D.W.2, in his examination-in-chief has deposed that the School of Immaculate Conception Church at Doresanipalya was started in the year 1914, but the Church existed at Doresanipalya earlier to this inception of the School. The Fathers of the Church, who were appointed as Parish Priest of the Church at Doresanipalya by his Most Reverend Arch Bishop of Bangalore, were the Head of all the Institutions of the said Church and they were administering all the institutions and catering the spiritual needs as Parish Priest of Immaculate Conception Church, Doresanipalya. Parish Priest were 36 appointed for a period of six years or less than six years as per the direction of Arch Bishop of Bangalore. His father, late David, was given a vacant plot for lease to cultivate the crops on a condition that half of the crop which is cultivated on the leased land should be given to the Church and the remaining half for the cultivator, who cultivates on the leased land. He has further deposed that plaintiffs’ father was appointed as the School Master and there was no execution of oral Gift Deed. Nothing has been elicited in his cross-examination, to disbelieve his evidence.
37. D.W.3 – Smt. Maria Magdalane Mariamma has also deposed on par with D.W.2 and stated that the School of Immaculate Conception Church at Doresanipalya was started in the year 1914, but the Church existed at Doresanipalya earlier to the inception of the School. The Fathers, who were appointed as Parish Priest of the Church at Doresanipalya by the Most Reverend Arch Bishop of Bangalore, were the Head of all the Institutions of the said Church and were administering all the Institutions and catering the spiritual needs as Parish Priest of Immaculate Conception Church, Doresanipalya. Since 1914, various teachers have served 37 the School, but the Head of the School was the Parish Priest and her father – Late Sri Jayaraj was given a vacant plot for lease to cultivate the crops on a condition that half of the crop which was cultivated on leased land should be given to the Church and the remaining half for the Cultivator, who cultivates on the leased land.
38. The evidence of D.Ws.2 and 3 are not helpful to the defendant to prove his title or possession over the suit schedule property. The material on record clearly depict that the plaintiffs have proved that their father – J.
Rayappa was in possession and enjoyment of the suit schedule property during his life time and he was known in the community as ‘School Master’. Therefore, the revenue records relating to Sy.No.152/5 are standing in the name of School Master and the word ‘School Master’ denotes J.
Rayappa as discussed above, Ex.P.7 dated 7.3.1951 discloses that J.
Rayappa was known as ‘School Master’ during that period. Ex.P.17 dated 23.12.1962 also supports that J.
Rayappa was known as ‘School Master’. To show that J.
Rayappa was in possession and enjoyment of the suit schedule property during his life time, the plaintiffs have produced Exs.P.65 to 67 dated 16.3.1978, 25.6.1981 38 and 8.8.1985, the tax paid receipts, wherein J.
Rayappa is referred to as ‘School Master J.Rayappa’. The RTC extracts produced by the plaintiffs i.e., Exs.P.9 to 14 also disclose that since the year 1977- 78, the name of School Master is mentioned in Column No.9 of suit schedule property - Exs.P.22 to 33 also disclose that even during the year 2000, till filing of the suit, School Master is mentioned in Column No.9 of RTC. Therefore, J.
Rayappa, father of the plaintiffs was in possession and enjoyment of the suit schedule property during his life.
39. Though the defendant states that he is the owner of suit schedule property, he has not produced any specific document to show that Sy.No.152/5 belongs to his ownership and he is in possession and enjoyment of the said property by paying tax to the concerned authority. Ex.D.13 also supports the contention of the plaintiffs that the name of ‘School Master’ is entered in the revenue records of Sy.No.152/5. Though in the cross-examination of P.Ws.1 to 3, though the advocate for the defendant has tried to take admission that Parish Priest, who was managing and administering the School run by the Church, was also considered as School Master 39 and the word ‘School Master’ in Column No.9 of the RTC denotes Parish Priest of the Church, nothing has been disclosed from their mouth that Parish Priest was also known as School Master. There is no explanation on behalf of the defendant as to why he has not produced either the Title Deed of the schedule property or the tax paid receipts relating to the schedule property, if really the Church is in possession of the suit property. Therefore, the adverse inference can be drawn against the defendant that he is not in possession of the suit property as an absolute owner.
40. Though the plaintiffs filed an amended plaint claiming that since 1929 till the death of J.
Rayappa, J.
Rayappa was in possession and enjoyment of the suit schedule as owner and after his death, continuously without any obstruction, they are in possession, but very strangely, they are claiming adverse possession without admitting the ownership of the defendant in respect of the property in question.
41. It is well settled that, if any person claims adverse possession against another person in respect of the property in 40 question, unless the ownership of that person is admitted, filing of suit for declaration and permanent injunction specifically pleading that his father was the owner by virtue of the oral Gift Deed and after his death, the plaintiffs continued to be peaceful possession and enjoyment of the property without admitting the title of the defendant in respect of the property in question, the plaintiffs cannot claim adverse possession. There should be necessary animus on the part of the person, who intends to perfect his title by adverse possession where a person, who under the bonafide belief thought that property belongs to him and as such, had been in possession of the same, such possession cannot at all be adverse possession as it lack necessary animus of perfecting title by adverse possession. Under the law of Adverse Possession, without admitted title of the defendant, plaintiff is not permitted to raise the question of adverse possession.
42. In the present case, the plaintiffs are claiming their ownership rights under the oral Gift Deed and at the time of filing of the suit, they have never admitted that the defendant is the owner of the said property. Infact, in the plaint at paragraph-8, their 41 averment is that the defendant is stranger to them and he has no right, title or interest over the suit schedule property. Even after filing of amended plaint, it is their contention that they have succeeded the estate of the deceased School Master @ J.
Rayappa and they are in peaceful possession and enjoyment of the suit schedule property with all right and title. Except plaintiffs, no one is having any title or is in possession of the property in question and the plaintiffs have not admitted the ownership of the defendant over the suit schedule property. As such, as already stated supra, to prove adverse possession, animus of perfecting title is necessary. In the absence of such animus, the contention of the plaintiffs, that they have perfected their title over the schedule property by way of adverse possession, cannot be accepted. The material on record, Ex.P.1 to P.71 and oral evidence of P.Ws.1 to 3 depict that the plaintiffs have failed to prove that they are the absolute owners of the schedule property either under the oral Gift Deed or by way of adverse possession. It is also not in dispute that the defendant by way of oral evidence of D.Ws.1 to 3 and material documents – Exs.D.1 to 19 is claiming ownership of the property in the written statement, but has not filed any counter claim as 42 contemplated under Order VIII Rule 6(A) of the Code of Civil Procedure. The trial Court considering the material on record has framed issue No.5 ‘whether the defendant has proved his title and possession of the suit schedule property’ and while considering the said issue has recorded a finding that the defendant has not proved his ownership in respect of the property in question.
43. On considering the entire material both oral and documentary evidence on record, the trial Court has come to the conclusion that the plaintiffs are in possession and enjoyment of the suit schedule property by virtue of the revenue records and accordingly, granted the permanent injunction and by dismissing the suit of the plaintiffs for declaration of title held that the plaintiffs have not proved their title by adverse possession as they have denied the ownership of the defendant.
44. Though the defendant has not filed any counter claim under Order VIII Rule 6A of the Code of Civil Procedure for setting up title, but has taken a defence in the written statement that he is the owner of the property in question. The trial Court considering 43 the entire material on record has come to the conclusion that the defendant has not proved his ownership and ultimately dismissed the suit of the plaintiffs for declaration of title by way of adverse possession. Even the defendant has neither filed any appeal under the provisions of Section 96 of the Code of Civil Procedure nor cross appeal under the provisions of Order 41 Rule 22 of the Code of Civil Procedure against the impugned judgment and decree granting permanent injunction in favour of the plaintiffs and admittedly, the plaintiffs have filed the present appeal only in so far as non granting declaration of title by adverse possession.
45. The learned Senior Counsel for the appellants-plaintiffs contended that the appellants-plaintiffs are claiming title and possession based on they being in continuous adverse possession against the defendants in terms of Section 27 of the Limitation Act. Therefore, it is necessary to consider the provisions of Section 27 of the Limitation Act which reads as under:
27. Extinguishment of right to property.— At the determination of the period hereby limited to any person for instituting a suit 44 for possession of any property, his right to such property shall be extinguished.
46. On careful perusal of the said provisions makes it clear that, the plaintiff must plead and prove the date on and from which, he claims to be in exclusive, continuous and undisturbed possession and also that such possession was actual and to the knowledge of the real owner. He also has to show hostile title and communicate it to the real owner. Then only, his right to such property shall be extinguished.
47. Admittedly, in the present case, the ownership of the defendant is not admitted rather, the plaintiffs have set up their ownership under the oral Gift Deed and have taken specific contention that the defendant is stranger and hence, has no title in respect of the property in question. Therefore, the plaintiffs cannot take advantage of Section 27 of the Limitation Act unless they plead and prove the exclusive, continuous and undisturbed possession against the knowledge of the real owner. Therefore, the contention of the learned Senior Counsel for the appellants cannot 45 be accepted. Though very clever and interesting argument is advanced by Sri. R. A. Devanand, learned Counsel for the defendant that even in the absence of any appeal or cross appeal against adverse finding recorded by the trial Court holding that, the defendant is not the owner of the property in question and granting permanent injunction in favour of the plaintiffs holding that, the plaintiffs are in possession, still the defendant can contend that the impugned judgment and decree passed by the trial Court granting injunction can be set aside in view of the provisions of Order 41 Rule 33 r/w Section 107 of the Code of Civil Procedure.
48. No doubt this Court while exercising the first appellate power can re-appreciate the entire evidence and findings recorded by the trial Court in respect of the relief sought in the present appeal filed by the plaintiffs, it does not mean that, even in non challenging of decree for permanent injunction granted in favour of the plaintiffs by the defendant, still this Court can set aside the decree in the absence of any challenge, cannot be accepted. Admittedly, in the present case, the claim made by the defendant in the written statement that he is the owner has been negated by the 46 trial Court after considering both oral and documentary evidence on record. The said judgment and decree has not been challenged by the defendant and the trial Court has granted permanent injunction in favour of the plaintiffs holding that they are in possession which is also not challenged by filing regular appeal or cross appeal by the defendant. In the absence of any challenge to the decree, the defendant cannot seek setting aside of the decree passed in favour of the plaintiffs in the appeal filed by them only in so far as non granting of decree for declaration of title by adverse possession.
49. The provisions of Rule 33 Order 41 of the Code of Civil Procedure undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the Court to adjust the rights of the parties. Where in an appeal, the Court reaches a conclusion which is inconsistent with the opinion of the Court appealed from and in adjusting the right claimed by the appellant, it is necessary to grant relief to a person, who has not appealed, the power conferred by Order 41 Rule 33 47 may properly be invoked. The rule, however, does not confer an unrestricted right to re-open decrees which have become final merely because the Appellate Court does not agree with the opinion of the Court appealed from. Admittedly, in the present case, the suit is filed by the plaintiffs for declaration and permanent injunction and the trial Court has dismissed the suit for declaration of title and decreed the suit for permanent injunction. Now this regular first appeal is filed by the plaintiffs against non granting of decree for declaration. As already stated supra, the defendant has neither filed any appeal against the decree for permanent injunction granted in favour of the plaintiffs nor any appeal against adverse findings recorded by the trial Court on issue No.5 holding that the defendant has failed to prove his ownership. Therefore, the provisions of Order 41 Rule 33 of CPC does not confer on the respondent/defendant any unrestricted right to reopen the decree for permanent injunction granted by the trial Court which has become final.
50. Admittedly, the defendant has allowed the trial Court to pass such a decree in respect of grant of permanent injunction at 48 the first instance which has become final and has not filed any appeal. The power conferred under Order 41 Rule 33 of CPC will be confined to those cases where, as a result of interference in favour of the appellant further interference with the decree of the lower court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience. While exercising the power under this rule, the Court should not lose sight of the other provisions of the Code itself nor the provisions of other laws, viz., the Law of Limitation or the Law of Court Fees etc. The facts and circumstances of the present appeal is not as such, in which, it would be appropriate to exercise the power under Order 41 Rule 33 of CPC., in the absence of any appeal filed by the respondent-defendant against the impugned judgment and decree passed by the trial Court granting permanent injunction in favour of the plaintiffs and when the same has become final and the right of the parties has come to an end to the extent by not filing any appeal or cross-objection within a period of limitation.
51. It is also an undisputed fact that after the decree is passed by the trial Court on 22nd April, 2013 and during the 49 pendency of the present appeal, appellant No.1 sold 1 acre 17 guntas including Kharab land in favour of the appellant No.1/applicant in I.A.1/2017 on 15.3.2014. On the application filed by appellant No.1/ applicant in I.A.1/2017, this Court by the order dated 7.7.2017 allowed I.A.1/2017 filed by the applicant – Smt. C.M. Meenakshi to come on record as co-appellant, permitted her to come on record as representative in the interest of appellant No.1 and was impleaded as appellant No.1. The said order passed by this Court has reached finality.
52. Admittedly the trial Court granted permanent injunction in favour of the plaintiffs 1 to 3 jointly in respect of Sy.No.152/5 measuring 1 acre 4 guntas situated at Bilekahalli village, Begur Hobli, Bangalore South Taluk, but very strangely appellant No.1 executed a registered Sale Deed in favour of the present applicant (appellant No.1) to an extent of 1 acre 17 guntas including Kharab and the recitals of the Sale Deed depict that he has delivered possession. The permanent injunction granted in favour of the plaintiffs jointly only holding that they are in continuous possession and they have established interference by the defendant with their 50 possession. The permanent injunction granted by the trial Court in favour of the plaintiffs restraining the defendant from interfering with the plaintiffs’ peaceful possession and enjoyment of the schedule property until they are evicted under due process of law.
53. The permanent injunction granted in favour of the plaintiffs holding that the alienation made by the first appellant in favour of the applicant during the pendency of the first appeal on 15.3.2014 is always hit by the provisions of Section 52 of the Transfer of Property Act. The alienation made by appellant No.1 is only his possessive right to continue in possession and he cannot alienate what was not granted by the trial Court. Very strangely he has executed the registered Sale Deed creating title in favour of the applicant but a larger extent. Infact the relief sought for declaration of title by adverse possession by all the plaintiffs including appellant No.1 was dismissed. Therefore, the applicant cannot claim his rights beyond the decree granting permanent injunction based on the alleged registered Sale Deed dated 15.3.2014 claiming right in respect of entire property as already 51 stated supra and the alienation is always hit by the provisions of Section 52 of the Transfer of Property Act.
54. It is well settled that the doctrine of Lis Pendency applies only where lis is pending before the Court. Further, in the pending suit, the transferee is not entitled, as a right, to be made a party to the suit, though the Court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party, if his interest in the subject matter of the suit is substantial and not just peripheral. Though this Court has permitted the proposed applicant to come on record only as a representative in the interest of appellant No.1 as per the decree of the trial Court granting permanent injunction, he cannot claim beyond the rights confirmed by the trial Court.
55. The Hon’ble Supreme Court while considering the provisions of Section 52 of the Transfer of Property Act in the case of K.N. Aswathnarayana Setty (dead) by L.Rs. –vs- State of Karnataka and Others reported in AIR2014SC279wherein at paragraphs 6 and 10, it is held as under:
52. “6. The doctrine of lis pendens is based on legal maxim ut lite pendente nihil innovetur (during a litigation nothing new should be introduced). This doctrine stood embodied in Section 52 of the Transfer of Property Act, 1882. The principle of “lis pendens” is in accordance with the equity, good conscience or justice because they rest upon an equitable and just foundation that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. A transferee pendente lite is bound by the decree just as much as he was a party to the suit. A litigating party is exempted from taking notice of a title acquired during the pendency of the litigation. However, it must be clear that mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject-matter of the suit. The law simply postulates a condition that the alienation will, in no manner, affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the court. The transferee cannot deprive the successful plaintiff of the fruits of the decree if he purchased the 53 property pendente lite. (Vide K. Adivi Naidu v. E. Duruvasulu Naidu [K. Adivi Naidu v. E. Duruvasulu Naidu, (1995) 6 SCC150, Venkatrao Anantdeo Joshi and ors. v. Malatibai and ors. (2003) 1 SCC722: (AIR2003SC267; Raj Kumar v. Sardari Lal and ors. (2004) 2 SCC601: (2004 AIR SCW470; and Sanjay Verma v. Manik Roy and ors., AIR2007SC1332.
10. The law on the issue can be summarised to the effect that a person who purchases land subsequent to the issuance of a Section 4 notification with respect to it, is not competent to challenge the validity of the acquisition proceedings on any ground whatsoever, for the reason that the sale deed executed in his favour does not confer upon him any title and at the most he can claim compensation on the basis of his vendor's title.
56. The Apex Court in the case of Amit Kumar Shaw and Another –vs- Farida Khatoon and Another reported in (2005)11 SCC403at paragraphs-15 and 16, has held as under: “15. Section 52 of the Transfer of Property Act is an expression of the principle “pending a litigation 54 nothing new should be introduced”. It provides that pendente lite, neither party to the litigation, in which any right to immovable property is in question, can alienate or otherwise deal with such property so as to affect his appointment. This section is based on equity and good conscience and is intended to protect the parties to litigation against alienations by their opponent during the pendency of the suit. In order to constitute a lis pendens, the following elements must be present:
1. There must be a suit or proceeding pending in a court of competent jurisdiction.
2. The suit or proceeding must not be collusive.
3. The litigation must be one in which right to immovable property is directly and specifically in question.
4. There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation. 55
5. Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order. 16 [Ed.: Para 16 corrected vide Official letter dated 25-8-2005]. The doctrine of lis pendens applies only where the lis is pending before a court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the court has discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject-matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, where the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party, under Order 22 Rule 10 an alienee pendente lite may be joined as party. As already noticed, the court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a 56 party to enable him to protect his interests. The court has held that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where his predecessor-in-interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case.” and in the case of Sharadamma –vs- Mohammed Pyrejan (D) through L.Rs. and Another reported in AIR2015SC3747 the Hon’ble Supreme Court has held that it would be open to the assignor to continue proceedings notwithstanding fact that he ceased to have any interest in matter of dispute .
57. It is also not in dispute that the respondent-defendant has filed the following suits against the plaintiffs: i) O.S.No.6674/2009 for permanent injunction came to be dismissed; ii) O.S.No.26426/2013 for permanent injunction which came to be dismissed as withdrawn on 22.2.2017; 57 iii) O.S.No.25527/2014 wherein a memo was filed praying to dismiss the suit as not pressed; iv) O.S.No.25542/2014 for permanent injunction and not to alienate the same is pending adjudication; and v) O.S.No.26390/2014 for ejectment came to be dismissed on 29.7.2018. All the four suits filed by the defendant against the plaintiffs have been dismissed and have become final and conclusive.
58. Though Sri S.P. Shankar, learned Senior Counsel contended that the plaintiffs are claiming declaration of title in the plaint based on adverse possession, in order to prove adverse possession, the basic principle is that the person, who files the suit for declaration of adverse possession, has to plead that he is in exclusive, continuous and undisturbed possession for more than 12 years which is adverse to the interest of the true owner of the property and he has to admit the ownership of the other side and then only, he can claim adverse possession. Admittedly, in the present case, on careful reading of the plaint at paragraph-3, it is 58 pleaded that “plaintiffs are the absolute owners in peaceful possession and enjoyment of the schedule agricultural property bearing Sy.No.152/5 situated at Bilekahalli Village, Begur Hobli, Bangalore South Taluk totally measure 1 acre 4 guntas which is morefully described in the schedule” and the said property has been orally gifted by the Reverend Priest Albert in favour of the School Master alias J.
Rayappa, at Doresanipalya, Begur Hobli, Bangalore, who died on 18.10.1988. After the death of the plaintiffs’ father, the plaintiffs have succeeded to the estate of the deceased-School Master (at paragraph-4 of the plaint). Further it is stated that since the plaintiffs are in possession and enjoyment of the suit schedule property, with all right and title, all the documents such as Survey Records of Rights, Record of Rights, Index of Land and RTC Extract stand in the name of the School Master alias Rayappa and they continued to be in possession and enjoyment of the suit schedule property. At pargraph-5 of the plaint, it is stated that the plaintiffs are in possession and enjoyment of the suit schedule property and except the plaintiffs, no one is having title or possession over the same and the record of right and index of land have not been changed so far and the katha column in RTC in respect of the suit 59 schedule property stands in the name of the plaintiffs’ father. At paragraph-7 of the plaint, the plaintiffs have pleaded that the defendant is stranger to them and he is neither a relative or share holder to these plaintiffs in any manner and he has got no right, title or interest over the schedule property and he is trying to interfere with the peaceful possession and enjoyment of the schedule property. Very strangely, they are seeking to declare them as absolute owners of the suit schedule property having perfected their right, title and interest by adverse possession. Therefore, the very pleadings in the plaint and evidence of the plaintiffs disentitle them for declaration of title by adverse possession. Therefore, the trial Court was justified in dismissing the suit of the plaintiffs, who claim declaration of title by adverse possession, at one breath ownership and at another breath without admitting title of the defendant, claiming adverse possession, is impermissible.
59. The latest Full Bench judgment of the Hon’ble Supreme Court in the case of Ravinder Kaur Grewal and Others –vs- Manjit Kaur and Others reported in AIR201960 SC3827while considering the provisions of Articles 27, 64 and 65 of the Limitation Act at paragraphs-46, 48 to 50, 53, 57 to 59 and 61 has held as under: “46. The conclusion reached by the High Court is based on an inferential process because of the language used in the IIIrd Column of Article 65. The expression is used, the limitation of 12 years runs from the date when the possession of the defendant becomes adverse to the plaintiff. Column 3 of Schedule of the Act nowhere suggests that suit cannot be filed by the plaintiff for possession of immovable property or any interest therein based on title acquired by way of adverse possession. There is absolutely no bar for the perfection of title by way of adverse possession whether a person is suing as the plaintiff or being sued as a defendant. The inferential process of interpretation employed by the High Court is not at all permissible. It does not follow from the language used in the statute. The large number of decisions of this Court and various other decisions of the Privy Council, High Courts and of English courts which have been discussed by us and observations made 61 in Halsbury's Laws based on various decisions indicate that suit can be filed by the plaintiff on the basis of title acquired by way of adverse possession or on the basis of possession under Articles 64 and 65. There is no bar under Article 65 or any of the provisions of the Limitation Act, 1963 as against a plaintiff who has perfected his title by virtue of adverse possession to sue to evict a person or to protect his possession and plethora of decisions are to the effect that by virtue of extinguishment of title of the owner, the person in possession acquires absolute title and if actual owner dispossesses another person after extinguishment of his title, he can be evicted by such a person by filing of suit under Article 65 of the Act. Thus, the decision of Gurdwara Sahib v. Gram Panchayat Village Sirthala [Gurdwara Sahib v. Gram Panchayat Village Sirthala, (2014) 1 SCC669: (2014) 1 SCC (Civ) 630]. and of the Punjab and Haryana High Court cannot be said to be laying down the correct law. More so because of various decisions of this Court to the contrary.
48. The statute does not define adverse possession, it is a common law concept, the 62 period of which has been prescribed statutorily under the law of limitation in Article 65 as 12 years. Law of limitation does not define the concept of adverse possession nor anywhere contains a provision that the plaintiff cannot sue based on adverse possession. It only deals with limitation to sue and extinguishment of rights. There may be a case where a person who has perfected his title by virtue of adverse possession is sought to be ousted or has been dispossessed by a forceful entry by the owner or by some other person, his right to obtain possession can be resisted only when the person who is seeking to protect his possession, is able to show that he has also perfected his title by adverse possession for requisite period against such a plaintiff.
49. Under Article 64 also suit can be filed based on the possessory title. Law never intends a person who has perfected title to be deprived of filing suit under Article 65 to recover possession and to render him remediless. In case of infringement of any other right attracting any other Article such as in case the land is sold away by the owner after the extinguishment of his title, the suit can be filed by a person who has 63 perfected his title by adverse possession to question alienation and attempt of dispossession.
50. Law of adverse possession does not qualify only a defendant for the acquisition of title by way of adverse possession, it may be perfected by a person who is filing a suit. It only restricts a right of the owner to recover possession before the period of limitation fixed for the extinction of his rights expires. Once the right is extinguished another person acquires prescriptive right which cannot be defeated by re-entry by the owner or subsequent acknowledgment of his rights. In such a case suit can be filed by a person whose right is sought to be defeated.
53. There is the acquisition of title in favour of the plaintiff though it is negative conferral of right on extinguishment of the right of an owner of the property. The right ripened by prescription by his adverse possession is absolute and on dispossession, he can sue based on “title” as envisaged in the opening part under Article 65 of the Act. Under Article 65, the suit can be filed based on the title for recovery of possession within 12 years of the start of adverse possession, 64 if any, set up by the defendant. Otherwise right to recover possession based on the title is absolute irrespective of limitation in the absence of adverse possession by the defendant for 12 years. The possession as trespasser is not adverse nor long possession is synonymous with adverse possession.
57. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, 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 his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser's long possession is not synonymous with adverse possession. Trespasser's possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks 65 after the property, protects it and in case of agricultural property by and large the concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession.
58. Adverse possession is heritable and there can be tacking of adverse possession by two or more persons as the right is transmissible one. In our opinion, it confers a perfected right which cannot be defeated on re-entry except as provided in Article 65 itself. Tacking is based on the fulfilment of certain conditions, tacking may be by possession by the purchaser, legatee or assignee, etc. so as to constitute continuity of possession, that person must be claiming through whom it is sought to be tacked, and would depend on the identity of the same property under the same right. Two distinct trespassers cannot tack their possession to constitute conferral of right by adverse possession for the prescribed period.
59. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years' period of 66 adverse possession is over, even owner's right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, 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 perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner's title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse 67 possession. Similarly, under other articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit.
61. Resultantly, we hold that decisions of Gurdwara Sahib v. Gram Panchayat Village Sirthala (supra) and decision relying on it in State of Uttarakhand v.Mandir Sri Lakshmi Sidh Maharaj (AIR2017SC4472 (supra) and Dharampal (dead) through LRs v. Punjab Wakf Board (Supra) cannot be said to be laying down the law correctly, thus they are hereby overruled. We hold that plea of acquisition of title by adverse possession can be taken by the plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on the aforesaid basis in case of infringement of any rights of a plaintiff.
60. In view of the dictum of the Hon’ble Supreme Court stated supra, the plaintiffs cannot claim adverse possession under the oral Gift Deed executed in the year 1929 and without admitting the title and ownership of the defendant in respect of the property 68 in question. Therefore, the trial Court is justified in dismissing the suit of the plaintiffs for declaration of title.
61. Though the learned Senior Counsel for the appellants- plaintiffs relied upon the dictum of the Hon’ble Supreme Court in the case of Collector of Bombay –vs- Municipal Corporation of the City of Bombay and Others reported in AIR1951SC469wherein it was held that by reason of non-compliance with the statutory formalities, the Government Resolution of 1865 was not an effectual grant passing title in the land to the Corporation and was not also an enforceable contract. The position of the Corporation and its predecessor in title was that of a person having no legal title, but nevertheless holding possession of the land under colour of an invalid grant of the land in perpetuity and free from rent for the purpose of a market. Such possession not being referable to any legal title, it was prima facie, adverse to the legal title of the Government as owner of the land from the very moment the predecessor in title of the Corporation took possession of the land under the invalid grant. This possession had continued openly, as of right and uninterruptedly for over 70 years and the 69 Corporation had acquired the limited title to it and its predecessor.
62. Admittedly, in the present case, it is the specific case of the plaintiffs that their father had become the owner by virtue of the oral Gift Deed executed in the year 1929 and continued his ownership until his death i.e., 1988 and after his death, plaintiffs have continued to be in possession as owners and except this, the plaintiffs have no right and it is their contention that the defendant is stranger to the property in question. Therefore, the said judgment has no application to the facts and circumstances of the present case.
63. The Hon’ble Supreme Court while considering the provisions of Sections 3 and 27 of the Limitation Act in the case of Prem Singh and Others –vs- Birbal and Others reported in AIR2006SC3608held that the limitation is a statute of repose. It ordinarily bars a remedy, but does not extinguish a right. The only exception to the said rule is to be found in Section 27 of the Limitation Act, 1963 which provides that at the determination of the period prescribed thereby, limited to any person for instituting a 70 suit for possession of any property, his right to such property shall be extinguished. In the present case, the ownership of the defendant is not admitted by the plaintiffs and they are claiming the right of ownership contending that they are the owners of the property in question by way of oral Gift Deed and their claim for declaration by way of adverse possession is impermissible. Therefore, the said judgment has no application to the facts and circumstances of the present case.
64. Another judgment relied upon by the leaned Senior Counsel Sri S.P. Shankar in the case of Janatha Dal Party –vs- The Indian National Congress and Others reported in AIR2014SC1062has no application to the facts and circumstances of the present case.
65. The Hon’ble Supreme Court while considering the provisions of Section 52-A of the Bombay Public Trusts Act in the case of Yeshwantrao Laxmanrao Ghatge and Another –vs- Baburao Bala Yadav (dead) by L.Rs. reported in AIR1978SC941has held with regard to extinguishment of right of trust to 71 property before coming into force of Section 52-A of the Bombay Public Trusts Act, would not arise and claiming of adverse possession and sale of property once belonging to Trust in 1947, suit by Trust to recover it, is not maintainable. The said judgment has no application to the facts and circumstances of the present case.
66. The learned Senior Counsel further relied upon the judgment of the Hon’ble Supreme Court in the case of Kshitish Chandra Bose –vs- Commissioner of Ranchi reported in AIR1981SC707at paragraph-8 with regard to adverse possession wherein it has been held that the possession must be open and without any attempt at concealment. It is not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner. In that case, the land in question consisted of a portion of the tank or a land appurtenant thereto, adverse possession could not be proved. While reversing the judgment of the Patna High Court at paragraphs-8 and 9, it has been held as under:
72. “8. It was then observed by the High Court that mere sporadic acts of possession exercised from time to time would not be sufficient for the acquisition of title by adverse possession. As discussed above, the High Court has not at all cared even to go through the evidence regarding the nature of the acts said to have been committed by the appellant nor to find out whether they were merely sporadic or incidental. Another reason given by the High Court was that the adverse possession should have been effective and adequate in continuity and in publicity. Here, the High Court has gone wrong on a point of law. All that the law requires is that the possession must be open and without any attempt at concealment. It is not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner. Such a requirement may be insisted on where an ouster of title is pleaded but that is not the case here. The findings, however. clearly show that the possession of the plaintiff was hostile to the full knowledge of the municipality. In this connection we might extract below the well 73 considered findings recorded by the trial court and Additional Judicial Commissioner both on the question of title and that of adverse possession. Trial Court (Re-Title):
"I have, therefore no doubt that these receipts relate to the suit land and, therefore, they show payment of rent by the plaintiff or his father. Thus, it has got to be held that the land belonged to the landlords within whose zamindari it lay. The plaintiff's father, therefore, obtained a valid title by the settlement from them."
(Re-Adverse possession) "I, therefore, find that the plaintiff has also obtained title by adverse possession inasmuch as he and his father before him had been in continuons possession of this land from 1912 till 1957 when they were dispossessed by the order of the magistrate in the case under section 145 Cr.P.C."
74 Considering all these, I hold that the plaintiff has subsisting title to the suit land and he is entitled to khas possession of the same."
Additional Judicial Commissioner (Re-Title) "There can be no doubt that Exts. 5 to 5(g) relate to the same lands for which the Hukumnama (Ext.
18) was granted as they are for the same area as given in the Hukumnama and the first of these namely, Ext. 5 is for the very first year after the settlement and is dated 20-5-1913. Certainly by the Hukumnama (Ext. 18), which is unregistered document the land in suit could be settled and it could create good title in favour of the settlee as the settlement was for agricultural purpose and was accompanied by the delivery of possession and grant of rent receipts..... P.Ws. 1, 2, 6, 9 and 8 (Plaintiff) have stated about the constant possession of the plaintiff and his father."
(Re-Adverse possession) "Thus from the facts stated above it is quite clear that the plaintiff and his father were coming in possession of the land in suit since 1912 till the year 1954-55. The Municipality 75 made several attempts to prevent the plaintiff and his father from storing building materials on the suit land from 1924 till 1954-55. Thus the plaintiff's father is proved to have been in possession of the suit land both before and after the Municipal Survey of 1928-29. The oral evidence of P.Ws. 1, 6, 5, 8 and 9 also prove the plaintiff and his father were in actual possession of the suit land at all times after the settlement by the landlord in 1912. Hence, the presumption of correctness of the Municipal Survey entry has been successfully reputed in this case by the plaintiff. The High Court was clearly in error in interfering with the aforesaid findings of fact.
9. Lastly, the High Court thought that as the land in question consisted of a portion of the tank or a land appurtenant thereto, adverse possession could not be proved. This view also seems to be wrong. If a person asserts a hostile title even to a tank which, as claimed by the municipality, belonged to it and despite the hostile assertion of title no steps were taken by the owner, (namely, the municipality in this case), to evict the trespasser, his title 76 by prescription would be complete after thirty years.
67. Admittedly, in the present case as already stated supra, the plaintiffs are not at all admitting the ownership of the defendant when he himself is claiming his ownership, question of seeking adverse possession in prayer No.1 of the plaint would not arise. Therefore, the said judgment has no application to the facts and circumstances of the present case.
68. The dictum of the Hon’ble Supreme Court in the case of State of West Bengal –vs- The Dalhousie Institute Society reported in AIR1970SC1778wherein it has been held that possession was on the basis of grant though invalid, persons in such possession acquires title by adverse possession and is entitled to compensation for acquisition of such land. Though we agree with the said law laid down by the Apex Court, the facts of the said case are different from the facts and circumstances of the present case and therefore, the said judgment has no application to the facts and circumstances of the present case. 77
69. The judgment relied upon by the learned Counsel for the respondent-defendant in the case of Ravinder Kumar Sharma – vs- State of Assam and Others reported in (1999) 7 SCC435the Hon’ble Supreme Court has held that even without filing any appeal or cross-objections, under Order 41 Rule 22 of the Code of Civil Procedure, before the 1976 Amendment, it was open to the respondent-defendant, who had not taken any cross-objection to the partial decree passed against him, to urge, in opposition to the appeal of the plaintiff, a contention which, if accepted by the trial Court would have resulted in the total dismissal of the suit. Further it is held that the rule is in two parts. The first part deals with what the respondent can do by way of attack of an adverse finding even if he has not filed any appeal or cross objection. The second part deals with what the respondent has to do, if he wants to file cross- objection. At pargraph-14 of the said judgment, the Hon’ble Supreme Court has held that by means that under Order 41 Rule 22 of CPC, before the 1976 Amendment, it was open to the defendant- respondent, who had not taken any cross-objection to the partial decree passed against him, to urge, in opposition to the appeal of the plaintiff, a contention which if accepted by the trial Court would 78 have resulted in the total dismissal of the suit. This was the legal position under the unamended Order 41 Rule 22 as accepted by the Madras Full Bench in Venkata Rao case (AIR1943Mad
698) and as accepted by the Hon’ble Supreme Court in Chandre Prabhuji case (AIR1973SC2565. Further at paragraph-16, it is held that whether the law as stated above has been modified by the 1976 Amendment of Order 41 Rule 22. It will be noticed that the amendment has firstly deleted the words “on any of the grounds decided against him in the court below, but take any cross- objection” in the main part of Order 41 Rule 22 of CPC and added the words “but may also state that the finding against him in the court below in respect of any issue ought to have been in his favour” (emphasis supplied) in the main part. At paragraph-17, it is held that the main part of Order 41 Rule 22(1) of CPC (after the 1976 Amendment) reads that “22. (i) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the court below in respect of any issue ought to have been in his favour, and may also take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such 79 objection in the appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the appellate court may see fit to allow.” Admittedly, in the present case, granting decree for permanent injunction to the plaintiffs is not challenged by the defendant or he has neither filed any cross-objection as contemplated under the provisions of Order 41 Rule 22 of CPC for non granting of declaration or any appeal against the adverse finding on issue No.5 by the trial Court holding that the defendant has not proved his ownership. Therefore, the judgment relied upon by the learned Counsel for the respondent-defendant is of no assistance.
70. The trial Court while granting permanent injunction in the operative portion at paragraph-31 has held that even the plaintiffs have failed to prove the oral Gift and also their title by way of adverse possession as well as they being in possession of the suit schedule property. The evidence also discloses that the plaintiffs are in settled possession of the suit schedule property which is recognized by law. The observation that the evidence discloses that 80 the plaintiffs are in settled possession of the suit schedule property which is recognized by law may not be correct in view of the dictum of the Hon’ble Supreme Court in the case of Rame Gowda (Dead) by L.Rs., -vs- M. Varadappa Naidu (Dead) by L.Rs., and Another reported in (2004) 1 SCC769wherein at paragraph-9 it is held as under: “9. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram v. Delhi Admn. [AIR1968SC702: (1968) 2 SCR455:
1968. Cri LJ806 , Puran Singh v. State of Punjab [(1975) 4 SCC518:
1975. SCC (Cri) 608]. and Ram Rattan v. State of U.P. [(1977) 1 SCC188:
1977. SCC (Cri) 85]. The authorities need not be multiplied. In Munshi Ram case [AIR1968SC702: (1968) 2 SCR455:
1968. Cri LJ806 it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the 81 trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh case [(1975) 4 SCC518:
1975. SCC (Cri) 608]. the Court clarified that it is difficult to lay down any hard-and-fast rule as to when the possession of a trespasser can mature into settled possession. The “settled possession” must be (i) effective, (ii) 82 undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase “settled possession” does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The Court laid down the following tests which may be adopted as a working rule for determining the attributes of “settled possession” (SCC p. 527, para 12): (i) That the trespasser must be in actual physical possession of the property over a sufficiently long period; (ii) That the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case; 83 (iii) The process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and (iv) That one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner, has no right to destroy the crop grown by the trespasser and take forcible possession.” The said portion has to be modified in exercise of powers of this Court under the provisions of Order 41 Rule 33 of CPC holding the plaintiffs have proved that they are in continuous possession of the suit schedule property and not settled possession.
71. The very judgment relied upon by the learned Counsel for the respondent-defendant with regard to powers of the Appellate Court under Order 41 Rule 33 r/w Section 107A of CPC in the case of State of Punjab and Other –vs- Bakshish Singh 84 reported in (1998) 8 SCC222 the Hon’ble Supreme Court at paragraphs-5, 6, 8 and 9, has held as under. “5. Learned counsel for the appellant contended that the respondent has not filed any cross-appeal and, therefore, the order of remand passed by the lower appellate court for a fresh order of punishment need not be interfered with, particularly as that order has been upheld by the High Court which had summarily dismissed the second appeal filed by the State of Punjab. If, therefore, this Court intervenes in the matter even in exercise of its power under Article 142 of the Constitution, the same would be without jurisdiction. This contention cannot be accepted.
6. A Constitution Bench of this Court in Supreme Court Bar Assn. v. Union of India [(1998) 4 SCC409: AIR1998SC1895 has already held that while exercising power under Article 142 of the Constitution, the court cannot ignore the substantive rights of a litigant while dealing with a cause pending before it. The power cannot be used to “supplant” substantive law applicable to a case. The Court further observed that Article 142, even with the width of its amplitude, cannot be 85 used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby achieve something indirectly which cannot be achieved directly.
8. This provision gives very wide power to the appellate court to do complete justice between the parties and enables it to pass such decree or order as ought to have been passed or as the nature of the case may require notwithstanding that the party in whose favour the power is sought to be exercised has not filed any appeal or cross-objections.
9. The discretion, however, has to be exercised with care and caution and that too in rare cases where there have been inconsistent findings and an order or decree has been passed which is wholly uncalled for in the circumstances of the case. The appellate court cannot, in the garb of exercising power under Order XLI Rule 33, enlarge the scope of the appeal. Whether this power would be exercised or not would depend upon the nature and facts of each case.” 86 The said judgment is aptly applicable to the facts and circumstances of the present case. In the garb of exercising powers as Appellate Court, cannot enlarge the scope of appeal and this is not a case, made out by the respondent-defendant to exercise powers under Order 41 Rule 33 of CPC to grant relief to the defendant by dismissing the suit in the appeal filed by the plaintiffs-appellants. XII CONCLUSION72 In the facts and circumstances of the case, we answer both the points in the negative holding that the plaintiffs and defendant have not made out any ground to interfere with the impugned judgment and decree passed by the trial Court dismissing the suit for declaration of title and granting permanent injunction in favour of the plaintiffs and to declare that the defendant is the owner of the suit schedule property. XIII RESULT73 For the reasons stated above, impugned judgment and decree of the trial Court in so far as rejecting the prayer for declaration of title by adverse possession is just and proper and the 87 appellants have not made out any ground to interfere with the same in exercise of the powers under the provisions of Section 96 of the Code of Civil Procedure. Accordingly, the appeal is dismissed as being devoid of merits. The parties shall bear their own costs. Sd/- JUDGE Sd/- JUDGE Nsu/-