- 1 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE22D DAY OF JUNE, 2024 R BEFORE THE HON'BLE MR JUSTICE C.M. POONACHA REGULAR SECOND APPEAL No.5186 OF2009(DEC/INJ-) BETWEEN: SRI MAHADEV S/O BHAIRU GAVADE SINCE DECEASED BY LRS1A) SMT. SUMITRA W/O MAHADEV GAWADE AGE:
71. YEARS, OCC: HOUSEHOLD WORK, R/O. CTS NO.4879/46B (H.NO.244/100A) FULBAG GALLI, BELAGAVI. 1(B) SMT. MANISHA W/O SURESH DAVANEKAR AGE:
46. YEARS, OCC: HOUSEHOLD WORK R/O H.NO.153, SAMBHAJI ROAD KHASBAG, BELAGAVI. 1(C) SMT. VARSHA W/O SUDARSHAN PAWAR AGE:
44. YEARS, OCC: HOUSEHOLD WORK, PLOT NO.29, DOLLAR COLONY TAHASHILDAR PLOT ROAD, NIPPANI TQ. CHIKKODI, DIST. BELAGAVI. 1(D) NAGENDRA S/O MAHADEV GAWADE AGE:
42. YEARS, OCC: PRIVATE SERVICE R/O CTS NO.4879/46B (H.NO.244/100A) FULBAG GALLI, BELAGAVI. LRS OF DECEASED APPELLANT ARE BROUGHT ON RECORD AS APPELLANT NO.1A TO1 AS PER
ORDERDATED0803.2021 …APPELLANTS (BY SRI CHETAN MUNNOLI, ADVOCATE FOR SRI G.B.SHASTRY, R.M.KULKARNI, SMT. SURABHI KULKARNI, SRI. LOKESH HEGDE, ADVOCATES) - 2 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 AND: SMT KAMALABAI W/O KALLAPPA MELAGE SINCE DECEASED BY LRS1A) SMT. SHOBHA W/O SHANKAR DEVAN AGE:
55. YEARS, OCC: HOUSEHOLD WORK, R/O C/O SRI. K.R.MELAGE, H.NO.244/100A, FALBAG GALLI, BELGAUM. 1(B) SRI. ANIL @ ANNA S/O KALLAPPA MELAGE, AGE:
51. YEARS, OCC: PRIVATE SERVICE/BUSINESS R/O H.NO.244/100A, FALBAG GALLI, BELGAUM. 1(C) SMT. SHEELA D/O KALLAPPA MELAGE, AGE:
48. YEARS, OCC: HOUSEHOLD WORK, R/O H.NO.244/100A, FALBAG GALLI, BELGAUM. 1(D) SRI. VIJAY S/O KALLAPPA MALAGE, AGE:
46. YEARS, OCC: PRIVATE WORK, R/O H.NO.244/100A, FALBAG GALLI, BELGAUM. 1(E) SMT. SUVARNA W/O SHIVAJI TIKKEKAR AGE:
44. YEARS, OCC: HOUSEHOLD WORK, R/O H.NO.244/100A, FALBAG GALLI, BELGAUM. 1(G) SMT. SHARADA W/O RAMESH NESARKAR, AGE:
40. YEARS, OCC: HOUSEHOLD WORK, R/O C/O SRI. KALLAPPA REAVNI MELAGI, H.NO.244/100 A, FALBAG GALLI, BELGAUM. 1(H) SRI. HIRAMANI S/O KALLAPPA MELAGI AGE:
35. YEARS, OCC: PRIVATE WORK, R/O H.NO.244/100 A, FALBAG GALLI, BELGAUM.
2. SHRI KALAPPA S/O REVANI MELAGE, OCC: BUSINESS R/O487946BFULBAG GALLI, BELGAUM. THE RESPONDENT NO.1A TO1 ARE TREATED AS LRS OF DECEASED RESPONDENT NO.2 AS PER
ORDERDATED0803.2021. …RESPONDENTS (BY SRI D.RAVIKUMAR GOKAKAKAR, ADVOCATE FOR R1, R2 (A,B,C,D,E,G AND H)) NOTICE ISSUED TO R1(F) IS SERVED BUT UNREPRESENTED) - 3 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO SET ASIDE THE
JUDGMENTDATED2511.2008 IN R.A.NO.125/2007 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE FAST TRACK COURT IV, BELGAUM, THAT OF THE TRIAL COURT IN O.S.NO.140/2002 DATED0201.2004 ON THE FILE OF THE III ADDITIONAL CIVIL JUDGE (JR.DN.) AT BELGAUM BE RESTORED AND THIS APPEAL BE ALLOWED WITH COSTS THROUGHT. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENTThe present second appeal is filed by the plaintiff under Section 100 of Code of Civil Procedure, 19081 challenging the judgment and decree dated 25.11.2008 passed in RA No.125/2007 by the Additional District and Sessions Judge, Fast Track Court IV, Belgaum2 and the judgment and decree dated 2.1.2004 passed in OS No.140/2002 by the III Additional Civil Judge (Jr.Dn) Belgaum3, wherein the suit for declaration and possession filed by the plaintiff has been decreed by the Trial Court, which has been set aside by the first appellate Court. 1 Hereinafter referred to as ‘CPC’ 2 Hereinafter referred to as the ‘first appellate Court’ 3 Hereinafter referred to as the ‘Trial Court’ - 4 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 2. The parties will be referred to as per their ranking before the Trial Court, for the sake of convenience.
3. It is the case of the plaintiff that he is the owner of suit property which is a residential house measuring 26 feet x 10 ¼ feet and a shed measuring 12 feet x 10 ¼ feet, together forming part of Municipal No.244/100A corresponding to CTS No.4879/46B, situated at Fulbag Galli, Belgaum. That defendant No.1 is the sister of the plaintiff and defendant No.2 is her husband.
4. It is the case of the plaintiff that his father had purchased CTS No.4879/46 vide registered Sale Deed dated 24.9.1943 and constructed a residential house. That he died on 9.8.1951 and after his death, his two sons i.e., Mahadeva and Shankar continued to be in joint possession of the suit property. That a partition is effected between the plaintiff and his brother and accordingly, the property bearing No.4879/46B fell to the share of the plaintiff, whereas CTS No.4879/46A fell to the - 5 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 share of his brother, Shankar. That the name of the plaintiff appears as owner in respect of CTS No.4879/46B. That the plaintiff is in possession of a portion of the suit property shown by the letters EFGH in the hand sketch and ABCD portion was originally an open backyard where defendants have put up a temporary shed. That the plaintiff allowed the defendants occupy ABFE portion as a licensee.
5. It is the further case of the plaintiff that he asked the defendants somewhere in the year 1988 to vacate ABFE portion and handover possession of the same to him. That since the defendants failed to vacate and handover vacant possession, the plaintiff was constrained to file a suit for possession in OS No.478/1988 on the file of the Principal Munsiff, Belgaum. That the said suit was dismissed, which was upheld in RA No.15/1997 as also in RSA No.403/1998. That this Court in the judgment passed in RSA No.403/1998 made an observation that the findings given in the judgment would not come in the way - 6 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 of the plaintiff seeking possession of the property from the defendants on the basis of his title. It is further contended by the plaintiff that the defendants have no right to continue in possession of the suit property and the possession is illegal. That since RSA No.403/1998 was disposed of on 19.11.2001, the time spent over the litigation is required to be excluded under Section 14 of the Limitation Act, 19634. Hence, the plaintiff has filed the suit for declaration of title and possession of the suit property.
6. The defendants entered appearance through a counsel and filed their written statement denying the case of the plaintiff. It is denied that the plaintiff is the owner of the suit property. It is contended by the defendants that they are in occupation of the suit property in their own right. It is denied that the plaintiff allowed defendant Nos.1 and 2 as licensees and they are in permissive possession of the suit property. It is further contended 4 Hereinafter referred to as the ‘Limitation Act’ - 7 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 that the claim of the plaintiff having been rejected in OS No.478/1988, on identical issues the suit is hit by the principles of res judicata. It is further contended that the suit is barred by limitation and the time spent in the earlier litigation is not saved under Section 14 of the Limitation Act. It is further contended by the defendants that they are running a Bakery in the suit property and they are paying taxes to the local authority. Hence, the defendants sought for dismissal of the suit.
7. Based on the pleadings of the parties, the Trial Court framed the following issues: “1. Whether the plaintiff proves that, he is the owner of the suit property?.
2. Whether the plaintiff further proves that defendants illegally erected a shed over the portion ABCD in CTS No.4879/46B?.
3. Whether defendants prove that the suit of the plaintiff is hit by Prl. of resjudicata?.
4. Whether the suit of the plaintiff is barred by limitation?. - 8 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 5. Whether the plaintiff is entitled to recover the possession of the suit property from defendants?.
6. Whether the plaintiff is entitled for the relief of declaration?.
7. Whether the plaintiff is entitled to the mesne profits?.
8. What order or decree?.
8. The plaintiff examined himself as PW.1. Exs.P1 to P34 have been marked in evidence. No oral or documentary evidence has been adduced by the defendants. The entire file in OS No.478/1988 is marked as Ex.C1. The Trial Court by its judgment and decree dated 2.1.2004, decreed the suit and passed the following order: “Suit of the plaintiff is hereby decreed. It is declared that, the plaintiff is the owner of the suit schedule property. Defendants are directed to hand over the actual and vacant possession of the suit schedule property and also to remove the temporary shed - 9 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 erected by the defendants no.1 & 2 over the portion marked at ABCD in the hand sketch. Plaintiff is entitled to mesne profits from the date of the suit till handing over the actual possession of the suit property to the plaintiff. An enquiry is ordered to ascertain the mesne profits U/o 20 Rule 12 CPC. Looking into the facts and circumstances of the case, the parties are directed to bear their own costs.
9. Being aggrieved, the defendants preferred RA No.125/2007. The plaintiff entered appearance in the said appeal and contested the same. The first appellate Court framed the following points for consideration: “Whether the learned trial Judge has grossly erred in properly appreciating the oral an documentary evidence on record in the light of settled principals of law and that whether the interference by this Court in the impugned Judgment and Decree is necessary?.
10. By its judgment and decree dated 25.11.2008 the first appellate Court allowed the appeal, set aside the - 10 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 judgment and decree passed by the Trial Court and dismissed the suit. Being aggrieved, the present second appeal is filed.
11. This Court, by order dated 2.9.2010 framed the following substantial questions of law: “a) Whether the lower appellate Court was justified in reversing the judgment and decree of the trial Court, more particularly by holding that the suit itself was barred by limitation?. b)Whether in that context the lower Appellate Court was justified in coming to the conclusion that the benefit of the provision contained in Section 14(3) of the Limitation Act, would not enure to the benefit of the appellant?.
12. The learned counsel for the appellants/plaintiff Sri Chetan Munnoli assailing the judgment of the first appellate Court contends that having regard to the observations made by this Court in RSA No.403/1998, the time spent in prosecuting the earlier round of litigation is required to be excluded since the same would come within the scope of Section 14 of the Limitation Act as “other - 11 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 causes of like nature”. Alternatively, he contends that even if Section 14 is not applicable, the plaintiff having filed the suit for declaration and possession based on the title, unless adverse possession is proved by the defendants, the plaintiff cannot be non-suited. The learned counsel further submits that the Trial Court has rightly decreed the suit which has been erroneously interfered by the first appellate Court. Hence, he seeks for setting aside of the judgment and decree passed by the first appellate Court and affirming the judgment and decree passed by the Trial Court.
13. In support of his contentions, the learned Counsel relies upon the following judgments: i. Indira v. Arumugam & Another5; ii. Union of India & others v. West Coast Paper Mills Ltd., & Another (III)6; iii. Revanna since Dead by LRs. v. A.Ramaiah and Others7 5 (1998) 1 SCC6146 (2004) 3 SCC4587 Judgment dated 08.04.2022 passed in RFA No.806/2006 - 12 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 iv. Sopanrao and Another vs. Syed Mehmood and Others8 14. Per contra, learned Counsel for the respondents/defendants Sri Ravikumar Gokakakar contends that the observations made by this Court in RSA No.403/1998 would not enure to the benefit of the plaintiff for the purpose of benefit as stipulated under Section 14 of the Limitation Act. He further contends that Article 58 of the Limitation Act would be applicable and not Article 65. Hence, he seeks for dismissal of the above appeal.
15. In support of his contentions, the learned counsel relies upon the judgment of the Hon’ble Supreme Court in the case of Deena (dead) through LRs. Vs. Bharat Singh (dead) through Lrs. And Others9.
16. The submissions of both the learned counsels have been considered and the material on record including the records of the Trial Court and first appellate Court have been perused. 8 (2019) 7 SCC769 (2002) 6 SCC336- 13 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 17. The Trial Court while considering issue No.1 as to whether the plaintiff is the owner of the suit property has recorded the following findings: i. Admittedly the plaintiff is the brother of defendant No.1 and defendant No.2 is her husband. One Bhairu Gawade who had two sons i.e. deceased Shankar Gawade and the plaintiff and one daughter who is defendant No.1; ii. It is undisputed that the Bhairu Gawade purchased CTS No.4789/46 under registered sale deed dated 24.03.1934 which was an open space and after purchase he constructed residential house in the said property. That the father of the plaintiff i.e. Bhairu Gawade died on 09.08.1951; iii. After the death of Bhairu Gawade, plaintiff and his deceased elder brother lived jointly for - 14 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 some time and thereafter entered into a registered Partition Deed (Ex.P.5), whereunder two divisions have been affected in CTS No.4879/46 and eastern portion was allotted to the plaintiff and numbered as CTS No.4879/46B and western portion was allotted to the brother of the plaintiff Shankar which was assigned CTS No.4879/46A. iv. Bhairu Gawade, the father of the plaintiff and defendant No.1 died on 09.08.1951 and hence the defendant No.1 being the daughter is not entitled to any share in the family property; v. In the written statement of the defendants, it is contended at para No.6 that they have been occupying portion of CTS No.4879/46B in their own right and have been running a bakery and have been paying taxes to the local authority. It appears from the said contention that the defendant No.1 claims to be in occupation of - 15 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 the suit property in her own right. But in what way the defendants came into possession of the suit property is not disclosed in the pleading; vi. No attempt has been made by the defendants to prove their possession over the suit property in their own right during the course of the evidence also since the defendants have not led any oral evidence; vii. The defendant No.1 does not claim her right over the suit property as one of heir of her father. Even if she claims her right as one of heir of her father, it does not hold good in the eye of law; viii. The deceased Shankar Gawade had sold the western half portion of CTS No.4879/46 which has been assigned CTS No.4879/46A to one Prakash Vithal Patil who sold the same to one Sri.Bhavakana Appaji Shahapurkar. The said - 16 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 Bhavakana Appaji Shahapurkar sold CTS No.4879/46A to the present defendant No.1 under the registered Sale Deed dated 02.02.1982 (Ex.P.26); ix. The plaintiff sought to recover possession from the defendants by contending that they were licensees under him and hence O.S.No.478/1988 was filed. The said suit was dismissed which was confirmed in R.A.No.15/97 and RSA No.403/98. But the Hon’ble High Court observed to the effect that the plaintiff may file suit for possession of the suit property on the basis of his title. x. The plaintiff admits possession of the defendants over the suit property and contends that they are in permissive possession. On the other hand, it is the definite contention of defendant No.1 that she is in occupation of the suit property in her own right but in what - 17 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 manner defendant No.1 came in occupation of the suit property has not been disclosed. PW.1 admits during the cross-examination that defendant No.2 is running bakery business for last 40 years in the suit property; xi. When the defendants set up a plea that they are in occupation of the suit property in their own right, the burden was on them to show in what way they derived right over the suit property. Under the circumstances, it cannot be held that the defendants are in lawful possession of the suit property; xii. In O.S.No.478/88 the very defendants contended that they have perfected their title over the suit property by adverse possession. But the plea of adverse possession set up by the defendants was negatived in that suit and the finding was confirmed in R.A.No.15/97. In - 18 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 the present case, the defendants have not set up any plea of adverse possession; xiii. I am of the view that Ex.P.5 is a document of title on the basis of which the partition took place with the plaintiff and his brother Shankar and he became the owner of CTS No.4879/46B. Hence, it is proved that the plaintiff was the owner of the said CTS No.4879/46B and he is exercising his right of ownership over the said property; 18. While considering the issue No.2 as to whether the defendants have illegally constructed a shed over the ‘ABCD’ portion of CTS No.4879/46B, the Trial Court has noticed the complaint (EX.P.25) addressed by the plaintiff to the City Corporation, Belagavi regarding the unauthorised construction. It is further held that the defendants have not produced any permission letter issued by the City Corporation, Belagavi to erect a shed over the - 19 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 suit property. Hence, it is held that the plaintiff has proved that erection by the defendants over the suit property is illegal.
19. While considering issue No.4 regarding limitation, the Trial Court held that having regard to the observations made by this Court in RSA No.403/98, the Trial Court has held that the cause of action to file suit has arisen after the disposal of RSA No.403/98 and the time consumed in the earlier proceedings was saved under Section 14 of the Limitation Act. The Trial Court has also answered issue No.3 in the negative that the suit was hit by the principle of resjudicata.
20. While considering issues No.5 to 7, the Trial Court noticed the judgment of the Hon’ble Supreme Court in the case of Indira5 and held that as the plaintiffs have proved title over the suit property, the possession of the defendants has become illegal and hence entitled to recover possession.-. 20 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 21. The First Appellate Court while considering the appeal filed by the defendants has held that the plaintiff cannot take the benefit of Section 14 of the Limitation Act and that the limitation in the earlier round of litigation is not saved. In this context the First Appellate Court recorded the following findings: “18. This Section does not apply when there is no want of jurisdiction and when the competent Court refused to interfere with the order of lower Court or when the Court has got to go into the merits before the case can be dismissed, the defect cannot be said to be defect of jurisdiction. It is an indispensable requirement that, the Court on which the prior civil litigation was pending must have been unable to entertain it on account of defect of jurisdiction or other cause of like nature. Of course the words "Or other cause of like nature" should be liberally construed, the defect must be of such a character as to make it impossible for the Court to entertain the suit or an application and to decide it on merits. An incompetent suit is not covered by the words "Other cause of like nature". In this case, the Suit as well as the Regular Appeal and Regular Second Appeal in the 1" round of litigation were dismissed not because of the Courts were unable to - 21 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 entertain it, but on merits. Thus it is clear that, the time taken in prosecuting the Suit and Regular Appeal and Regular Second Appeal in the earlier round of litigation cannot be saved under the provisions of Section 14 of the Limitation Act 1961.” (emphasis supplied) 22. Hence, the First Appellate Court has held that the suit was barred by time, allowed the appeal and dismissed the suit.
23. It is clear and forthcoming from the aforementioned that the Trial Court has recorded a categorical finding of fact that the plaintiff is the owner of the suit property. It is further relevant to note that the defendants have also not disputed the fact that the plaintiff is the owner of the suit property. It is also relevant to note that the plaintiff in the earlier round of litigation i.e. in O.S.No.478/88 had set up a plea of adverse possession. In this context, the Trial Court in O.S.No.478/88 had framed issue No.4 which is extracted herein below for ready reference: - 22 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 “Whether the defendants prove that they have perfected the title of the suit property by adverse possession?.
24. The Trial Court vide its judgment and decree dated 09.12.1996 passed in O.S.No.478/88 (EX.P.29) has answered issue No.4 in the negative. Hence, it is clear that the plea of adverse possession has been raised by the defendants in the earlier round of litigation and the same has been answered against them.
25. The judgment and decree dated 09.12.1996 passed in O.S.No.478/88 was the subject matter of consideration in R.A.No.15/97. The First Appellate Court by its judgment and decree dated 03.02.1998 passed in R.A.No.15/97 (Ex.P.30) had framed the following point for consideration: “3. Whether the defendants prove that they have perfected title to the suit property by way of adverse possession?.” - 23 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 26. The First Appellate Court in R.A.No.15/97 also answered the said point No.3 in the negative that the defendants did not prove that they had perfected title by way of adverse possession. The plaintiff had preferred RSA No.403/1998. The defendants had not preferred any second appeal. Hence, it is clear that the finding has been recorded in the earlier round of litigation that the defendants have failed to prove that they have perfected title to the suit property by way of adverse possession which has become final and binding between the parties.
27. It is also relevant to note certain findings recorded by this Court in its judgment dated 19.11.2001 passed in RSA No.403/98 (Ex.P.33). The substantial question of law framed in the said appeal is as follows: “Whether the Courts below while holding that the defendants have not proved adverse possession and the title of the plaintiff is not disputed, erred in dismissing the plaintiff's suit?.” - 24 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 27.1. This Court while considering the said substantial question of law, has recorded the following findings: “8. ……….. Further, the Courts below have also negatived the contention of the first defendant that she is in possession of portion of 4879/46B in her own right and not as a licensee under the plaintiff. The Courts below have held that in view of the fact that Defendant No.1 was married and she was not entitled to share in the property after the death of her father Bhairu Gavade, after the death of Bhairu Gavade the plaintiff and his brother Shankar got half share in the property bearing No.4879/46 and the portion that was allotted to the share of Shankar was numbered as 4879/46A which was sold to one Prakash Patil who in turn has sold to the Defendant No.1 under Ex. P-1 on 04.02.1982 and the other half portion of the property fell to the share of the plaintiff and numbered as 4879/46B and wherefore the Courts below have rightly held that Defendant No.1 cannot claim to be in possession of the schedule property shown by letters 'ABCD in her own right and further though it was contended by the defendants that they have perfected their title to the property by adverse possession in view of the fact that mere possession for a long period would not by itself enable the - 25 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 defendants to perfect their title by adverse possession and also having regard to the fact that Defendant No.1 claimed to be in possession of the property in her own right and in the absence of proof of the fact that the defendants have failed to prove that they have been in possession of the property for the statutory period of 12 years uninterruptedly and against the interest of owner and having an enemas (animus) to exclude the ownership of the owner and to perfect title by adverse possession, the Courts below have rightly held that defendants have failed to prove that they have perfected their title by adverse possession. However, since the suit of the plaintiff is for possession of the property from the defendants on the ground that defendants are licensees, Courts below have proceeded to dismiss the suit of the plaintiff for possession.” (emphasis supplied) 27.2. Further, this Court held: “10. It is clear from the perusal of the averment made in the plaint and the specific case of the plaintiff that the prayer made by the plaintiff in the plaint is only for possession of the property from the defendants on the ground that they are licensees and Courts below having regard to the - 26 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 material on record have concurrently held that the plaintiff has failed to prove that defendants were licensees of the schedule premises. It is clear that the decisions relied upon by the learned Counsel appearing for the appellant is not helpful to him in the present case. In the present case though the first defendant contended that she is in possession of the schedule property comprising of a portion of CTS.No.4879/46B in her own right as legal heir of her father, the plaintiff did not seek for any declaration of title in the suit and wherefore the question of title of the plaintiff to the schedule property was not an issue in the suit. ………… Further, in view of the fact that the plaintiff has not sought for declaration of title in the present case, the decision of the Hon'ble Supreme Court in Indira's case would not be helpful to the plaintiff merely because of the fact that the Courts below have negatived the contention of adverse possession. …………. Wherefore, I hold that the decisions relief upon by the learned Counsel appearing for the appellant is not helpful to the appellant in the present case to contend that the Courts below ought to have decreed the suit of the plaintiff for possession as having regard to the frame of the suit and in the absence of any prayer for declaration of title and also having regard to the dispute about the nature of the property which is in - 27 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 possession of Defendants 1 and 2 and as to whether they are entitled to any relief in respect of construction put up by them in case they are liable to hand over possession of the property to the plaintiff have to be gone into before granting any relief by moulding the relief under Order 7 Rule 7 C.P.C., and accordingly I hold that this is not a fit case wherein the plaintiff is entitled to the relief of possession in exercise of power under Order 7 Rule 7 C.P.C. For the above said reasons, I answer the question of law in the negative and hold that the Courts below were justified in dismissing the suit of the plaintiff. However, the finding given by the Courts below would not come in the way of the plaintiff seeking possession of the property from the defendants on the basis of his title.” (emphasis supplied) 28. In the present suit the plaintiffs have merely contended that they are in possession of the suit property in their own right. As has been noticed by the Trial Court, the plaintiffs have not averred as to in what manner they assert their own right. It is further noticed that the defendants have not adduced any oral or documentary - 28 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 evidence. Hence, they have not also adduced any evidence as to in what manner they assert right over the suit property.
29. It is clear from the aforementioned that the plaintiffs have proved the title over the suit property. The plaintiffs have filed the present suit for declaration that they are the owners of the suit property and for a direction to the defendants to hand over possession of the suit property by removing temporary shed erected by the defendants No.1 and 2 over the portion marked at ‘ABCD’ in the hand sketch. A finding has also been recorded that the erection of the structure by the defendants is illegal since no permission has been obtained by them in this regard from the relevant statutory authorities.
30. Hence, it is clear that the plaintiffs are seeking to recover possession of the suit property based on the title asserted by the plaintiff. In this context, it is relevant to note that in a suit based on title for possession, once the title is established, unless the defendants prove - 29 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 adverse possession, the plaintiff cannot be non-suited. In this context, it is relevant to note the following judgments: i. The Hon’ble Supreme Court in the case of Indira5 held as follows: “4. The aforesaid reasoning of the learned Judge, with respect, cannot be sustained as it proceeds on the assumption as if old Article 142 of the earlier Limitation Act was in force wherein the plaintiff who based his case on title has to prove not only title but also possession within 12 years of the date of the suit. The said provision of law has undergone a metamorphic sea change as we find under the Limitation Act, 1963 Article 65 which reads as under: Article Description of Period of Time from suit limitation which period begins to run 65 For Twelve years When the possession of possession of immovable the defendant property or becomes any interest adverse to the therein based plaintiff on title - 30 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 5. It is, therefore, obvious that when the suit is based on title for possession, once the title is established on the basis of relevant documents and other evidence unless the defendant proves adverse possession for the prescriptive period, the plaintiff cannot be non-suited.” (emphasis supplied) ii. The Hon’ble Supreme Court in the case of MD. Mohammad Ali (Dead) by LRs. vs. Jagadish Kalita and Others10 held as follows: “20. By reason of Limitation Act, 1963 the legal position as was obtaining under the old Act underwent a change. In a suit governed by Article 65 of the 1963 Limitation Act, the plaintiff will succeed if he proves his title and it would no longer be necessary for him to prove, unlike in a suit governed by Articles 142 and 144 of the Limitation Act, 1908, that he was in possession within 12 years preceding the filling of the suit. On the contrary, it would be for the defendant so to prove if he wants to defeat the plaintiff’s claim to establish his title by adverse possession. 10 (2004) 1 SCC271- 31 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 21. For the purpose of proving adverse possession/ ouster the defendant must also prove animus possidendi.” (emphasis supplied) iii. The Hon’ble Supreme Court in the case of Saroop Singh vs. Banto and Others11 held as follows: “28. The statutory provisions of the Limitation Act have undergone a change when compared to the terms of Articles 142 and 144 of the schedule appended to the Limitation Act, 1908, in terms whereof it was imperative upon the plaintiff not only to prove his title but also to prove his possession within twelve years, preceding the date of institution of the suit. However, a change in legal position has been effected in view of Articles 64 and 65 of the Limitation Act, 1963. In the instant case, plaintiff-respondents have proved their title and, thus, it was for the first defendant to prove acquisition of title by adverse possession. As noticed hereinbefore, the first defendant- Appellant did not raise any plea of adverse possession. In that view of the matter the suit was not barred. 11 (2005) 8 SCC330- 32 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date defendant's possession becomes adverse. …..
30. “Animus possidendi” is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the Appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Md. Mohammad Ali (Dead) By LRs. Vs. Jagdish Kalita and Others, (2004) 1 SCC271 para 21)” (emphasis supplied) iv. The Hon’ble Supreme Court in the case of M.Durai vs. Muthu and Others12 held as follows: “7. The change in the position in law as regards the burden of proof as was obtaining in the Limitation Act, 1908 vis-a-vis Limitation Act, 1963 is evident. Whereas in terms of Articles 142 and 144 of the old Limitation Act, the Plaintiff was bound to prove his title as also possession 12 (2007) 3 SCC114- 33 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 within twelve years preceding the date of institution of the suit, under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession.” (emphasis supplied) v. The Hon’ble Supreme Court in the case of C.Natarajan vs. Ashim Bai and Another13 held as follows: “15. The law of limitation relating to the suit for possession has undergone a drastic change. In terms of Articles 142 and 144 of the Limitation Act, 1908, it was obligatory on the part of the plaintiff to aver and plead that he not only has title over the property but also has been in possession of the same for a period of more than 12 years. However, if the plaintiff has filed the suit claiming title over the suit property in terms of Articles 64 and 65 of the Limitation Act, 1963, burden would be on the defendant to prove that he has acquired title by adverse possession.” (emphasis supplied) 13 AIR2008SC363- 34 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 31. It is clear from the settled position of law as noticed above, that the plaintiff having proved his title to the suit property, in the absence of defendants proving that they have perfected their title by way of adverse possession, the plaintiff cannot be non-suited. The defendants having taken a contention regarding adverse possession in the earlier round of litigation and the same having been answered against the defendants, it is clear that they have failed to demonstrate that they have perfected title by way of adverse possession.
32. If the settled position of law as noticed above is applied to the facts of the present case, there is no requirement to consider the contentions regarding applicability of Section 14 of the Limitation Act.
33. It is relevant to note that the Trial Court had noticed the judgment of the Hon’ble Supreme Court in the case of Indira5. The First Appellate Court without noticing the settled position of law as held by the Hon’ble Supreme Court in the case of Indira5 has merely recorded a finding - 35 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 that Section 14 of the Limitation Act is not applicable. That Section 14 cannot be taken recourse to and period of limitation cannot be saved. Hence, held that that the suit of the plaintiff is barred by limitation. The said finding of the First Appellate Court is clearly erroneous and is set aside.
34. Learned counsel for the respondents contends that Article 58 of the Limitation Act is applicable and hence period for limitation for filing the suit is three years from when the right to sue accrues. Rebutting the said contention, learned counsel for the appellants submits that when a suit for declaration of title and possession of the property is filed, Article 65 of the Limitation Act would be attracted. In support of his contention, he relies on the judgment of the Hon’ble Supreme Court in the case of Sopanrao8 wherein it is held as follows: “9. It was next contended by the learned counsel that the suit was not filed within limitation. This objection is totally untenable. Admittedly, the possession of the land was handed over to the - 36 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 Trust only in the year 1978. The suit was filed in the year 1987. The appellants contend that the limitation for the suit is three years as the suit is one for declaration. We are of the view that this contention has to be rejected. We have culled out the main prayers made in the suit hereinabove which clearly indicate that it is a suit not only for declaration but the plaintiffs also prayed for possession of the suit land. The limitation for filing a suit for possession on the basis of title is 12 years and, therefore, the suit is within limitation. Merely because one of the reliefs sought is of declaration that will not mean that the outer limitation of 12 years is lost. Reliance placed by the learned counsel for the appellants on the judgment of this Court in L.C. Hanumanthappa v. H.B. Shivakumar is wholly misplaced. That judgment has no applicability since that case was admittedly only a suit for declaration and not a suit for both declaration and possession. In a suit filed for possession based on title the plaintiff is bound to prove his title and pray for a declaration that he is the owner of the suit land because his suit on the basis of title cannot succeed unless he is held to have some title over the land. However, the main relief is of possession and, therefore, the suit will be governed by Article 65 of the Limitation Act, 1963. This Article deals with a suit for possession of - 37 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 immovable property or any interest therein based on title and the limitation is 12 years from the date when possession of the land becomes adverse to the plaintiff. In the instant case, even if the case of the defendants is taken at the highest, the possession of the defendants became adverse to the plaintiffs only on 19.08.1978 when possession was handed over to the defendants. Therefore, there is no merit in this contention of the appellants.” (emphasis supplied) 35. It is clear from the aforementioned that the present suit being one filed for declaration of title and for possession, having regard to the law as laid down in the case of Sopanrao8, Article 65 of the Limitation Act stands attracted and the period of limitation would be 12 years.
36. Learned counsel for the respondents further relies on the judgment of the Hon’ble Supreme Court in the case of Deena9, wherein the Hon’ble Supreme Court has considered meaning of expression “good faith” and “exercise of due care and attention” as stipulated under Section 14 of the Limitation Act. As already noticed above, - 38 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 it is not necessary to take recourse to Section 14 of the Limitation Act to record a finding as to whether the suit is within time. In view of the settled position of law as noticed above, the suit having been filed by the plaintiff for declaration of title and recovery of possession, in the absence of the defendants proving adverse possession for 12 years, it cannot be held that the suit is barred by time. Hence, the judgment in the case of Deena9 relied upon by the learned counsel for the respondents is not applicable to the facts of the present case.
37. In view of the settled position of law as noticed above, the substantial question of law No.(a) is answered in the negative. Further, the question of considering substantial question of law No.(b) does not arise.
38. In view of the discussions made above, the judgment and decree passed by the First Appellate Court is required to be set aside and the judgment and decree passed by the Trial Court is required to be affirmed.-. 39 - NC:
2024. KHC-D:8453 RSA No.5186 of 2009 39. Hence, the following:
ORDERi. The above appeal is allowed with costs. ii. The judgment and decree dated 25.11.2008 passed in R.A.No.125/2007 by the Additional District and Sessions Judge, Fast Track Court IV, Belagavi is set aside. iii. The judgment and decree dated 02.01.2004 passed in O.S.No.140/2002 by the III Additional Civil Judge, Belagavi is affirmed. Sd/- JUDGE Nd/sh,CT:GSM List No.:
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5.