Sri. Gundappa Vs. Sri. Chamaraju - Court Judgment

Excerpt:
1 r in the high court of karnataka at bengaluru dated this the17h day of march, 2023 before the hon'ble mr. justice h.p. sandesh r.s.a.no.819/2017 (dec) between: sri gundappa, s/o late ainora devaiah, aged about50years, r/o eerappana koppalu village, yewala hobli, mysuru taluk & district-570 001. … appellant (by sri raja l, advocate) and: sri chamaraju, since dead by his lrs., 1. smt. rekha, w/o channabasava, aged about35years, r/o lalithadripura village, mysuru taluk-570 001.2. smt. roopa, w/o girish, aged about32years, r/o chikkahalli village, mysuru taluk-570001.3. smt. susheela, w/o chamaraju, aged about48years, 2 r/o eerappana koppalu village, yewala hobli, mysore taluk & district-570 001. … respondents (by sri k.n. nitish, advocate for sri k.v. narasimhan, advocate for r1 to r3).....

Judgment:

1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE17H DAY OF MARCH, 2023 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH R.S.A.NO.819/2017 (DEC) BETWEEN: SRI GUNDAPPA, S/O LATE AINORA DEVAIAH, AGED ABOUT50YEARS, R/O EERAPPANA KOPPALU VILLAGE, YEWALA HOBLI, MYSURU TALUK & DISTRICT-570 001. … APPELLANT (BY SRI RAJA L, ADVOCATE) AND: SRI CHAMARAJU, SINCE DEAD BY HIS LRS., 1. SMT. REKHA, W/O CHANNABASAVA, AGED ABOUT35YEARS, R/O LALITHADRIPURA VILLAGE, MYSURU TALUK-570 001.

2. SMT. ROOPA, W/O GIRISH, AGED ABOUT32YEARS, R/O CHIKKAHALLI VILLAGE, MYSURU TALUK-570001.

3. SMT. SUSHEELA, W/O CHAMARAJU, AGED ABOUT48YEARS, 2 R/O EERAPPANA KOPPALU VILLAGE, YEWALA HOBLI, MYSORE TALUK & DISTRICT-570 001. … RESPONDENTS (BY SRI K.N. NITISH, ADVOCATE FOR SRI K.V. NARASIMHAN, ADVOCATE FOR R1 TO R3) THIS R.S.A. IS FILED UNDER SECTION100OF CPC, AGAINST THE

JUDGMENT

AND DECREE DATED2501.2017 PASSED IN R.A.NO.348/2016 ON THE FILE OF THE VII ADDITIONAL DISTRICT JUDGE, MYSURU, ALLOWING THE APPEAL AND SETTING ASIDE THE

JUDGMENT

AND DECREE DATED1701.2015 PASSED IN O.S.NO.411/2007 ON THE FILE OF THE II CIVIL JUDGE AND JMFC, MYSURU. THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR

JUDGMENT

ON0303.2023, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

JUDGMENT

This appeal is filed challenging the judgment and decree dated 25.01.2017, passed in R.A.No.348/2016, on the file of the VII Additional District Judge, Mysuru.

2. The plaintiffs before the Trial Court while seeking the relief of declaration and possession contended that the plaintiffs are the absolute owners of the suit schedule property and husband of plaintiff No.1 by name late Ainora Devaiah was the owner in possession of the said property and the father of defendant No.1 by name late Shivanna had approached plaintiff No.1 and her husband and requested for permission for him and 3 his family to reside in the suit schedule property as he had no other house for residence in the village and accordingly the permission was granted. It is further pleaded that after the death of defendant No.1’s father, the defendants continued in the suit schedule property with the permission of the plaintiffs. The plaintiffs sympathetically permitted the defendants to reside in the suit schedule house for few years, when the defendants requested the plaintiffs to permit them to continue to reside in the said property. When the plaintiffs demanded possession for their residential purpose, the defendants refused to vacate the suit schedule property and hand over the possession to the plaintiffs and hence legal notice dated 29.05.2007 was sent to the defendants and it was replied by notice dated 05.06.2007 by making false claim contending that Ainora Devaiah sold the suit schedule property in favour of defendant No.1’s father in the year 1980 and since then they are in possession of the suit schedule property as absolute owners.

3. Based on the pleadings of the parties, the Trial Court framed the issues and the plaintiffs in order to prove their case examined plaintiff No.2 as P.W.1 and got marked the documents at Exs.P.1 to 7. The legal representatives of defendant No.1 got 4 examined legal representative No.1 as D.W.1 and another witness as D.W.2, but no documents are marked. The Trial Court after considering both oral and documentary evidence placed on record, decreed the suit declaring that the plaintiffs are the owners of the suit schedule property and directed the defendants to deliver the possession of the suit schedule property to the plaintiffs within three months from the date of order, failing which the plaintiffs will be entitled to get the same through process of Court.

4. Being aggrieved by the judgment and decree of the Trial Court, the defendants filed an appeal before the Appellate Court which is numbered as R.A.No.348/2016. The First Appellate Court on considering the grounds urged in the appeal, formulated the points whether the impugned judgment and decree of the Trial Court is opposed to law, facts and circumstances of the case and whether it requires interference. The First Appellate Court re-assessing the material, allowed the appeal and set aside the judgment of the Trial Court and consequently dismissed the suit. Hence, the second appeal is filed by plaintiff No.2 before this Court. 5

5. The learned counsel for the appellant in his arguments would vehemently contend that the First Appellate Court committed an error in reversing the finding of the Trial Court. The First Appellate Court failed to consider the fact that admittedly the defendants are in permissive possession in the suit schedule property and the husband of plaintiff No.1 had permitted the defendants to reside in the suit schedule property sympathetically when the defendant No.1 was not having any premises to live and even after the death of the husband of plaintiff No.1, the plaintiffs have permitted the defendants to reside in the suit schedule property, as the defendants requested that they have no house in the village and when the demand was made sets up false plea. The First Appellate Court totally erred in coming to the conclusion that the plaintiffs have issued a legal notice after 27 years. Even assuming for the moment, why the defendants have kept quite for all these long years without taking any steps over the suit schedule property and till today, the katha is in the name of Ainora Devaiah and later it was changed in the name of plaintiff No.1. The First Appellate Court totally erred in dismissing the suit of the plaintiffs. No documentary evidence is produced before the Trial Court that 6 they had asserted hostile animus at any point of time prior to Ex.P.6 and committed an error in coming to the conclusion that the defendants have perfected their title. It is contended that though the defendants have taken the contention that the husband of plaintiff No.1 sold the suit schedule property orally in the year 1980 and no prudent man will purchase the property from any person without any documentation. In one breath, the defendants claim that they have purchased the property and also claims that they have perfected the title by way of adverse possession and when they claim title, they cannot contend that they have perfected the title by adverse possession. The learned counsel would contend that the case of the plaintiffs is specific that permissive possession was given to the defendants and they continued the same. Admittedly, defendant No.1’s father took the premises and the same was continued in their possession. The suit was filed in 2007 and D.W.1 in his evidence he claims that he is the owner and also claims that he has perfected the title by way of adverse possession and the same is not permissible. The Appellate Court fails to take note of this aspect and committed an error in reversing the finding of the Trial Court. 7

6. The learned counsel for the appellant relied upon the judgment of the Punjab and Haryana High Court in the case of JAWALA SINGH v. BASTA SINGH AND OTHERS reported in AIR2007PUNJAB AND HARYANA123 wherein the Court held that plea of adverse possession is in essence, a plea of ouster of title of the true owner and the vesting thereof in another. In order to establish a plea of adverse possession, the ingredients thereof must be specifically pleaded and thereafter strictly established by cogent and unimpeachable evidence.

7. The learned counsel also relied upon the decision of this Court in the case of STATE OF KARNATAKA AND OTHERS v. M. MUNIRAJU reported in AIR2002KARNATAKA287 wherein it is held that permissive possession of land granted to the plaintiff by some co-operative society which was not competent to grant land. No limitation either specified or disclosed in plaint averments. The finding recorded by the lower Courts that plaintiff had been in possession and enjoyment of the land by adverse possession is against the interest of Government is erroneous. 8

8. Per contra, the learned counsel for the respondents in his argument would vehemently contend that the suit is filed after 27 years and the defendants are not relatives and they are strangers and permissive possession for what period is also not stated. The learned counsel would contend that when the permissive possession has not been proved, the Trial Court has committed an error in granting the relief. The First Appellate Court rightly reversed the finding of the Trial Court and it does not require interference of this Court.

9. The learned counsel for the respondents relied upon the judgment of this Court in the case of HULLAPPA v. THE STATE OF KARNATAKA reported in MANU/KA/1938/2012 and relied upon paragraph Nos.15 to 18, wherein this Court held that if the mutation entry is made in accordance with law, there is a presumption in favour of the person in whose name the mutation entry stands to the effect that he is in possession of the said property. That by itself is not sufficient to hold that he is the owner of the property. It is not proof of title. Therefore, the Civil Courts cannot declare title in a person on the basis of the aforesaid entries in the revenue records. 9

10. The learned counsel also brought to the notice of this Court paragraph No.18, wherein it is observed that when the plaintiff has not produced documents of title, the Civil Court had no jurisdiction to declare the title to the immovable property in the plaintiff. The Court states in the judgment that when the title is not disputed, there is no necessity to declare the same. Still it declares. This is how the judicial process is abused.

11. The learned counsel also relied upon the judgment of the Apex Court in the case of BALKRISHNAN v. SATYAPRAKASH AND OTHERS reported in MANU/SC/0043/2001 and brought to the notice of this Court paragraph Nos.7 and 11 wherein it is observed with regard to adverse possession is concerned. A person claiming title by adverse possession has to prove three “neck” – nec vi, nec clam and nec precario. In other words, he must show that his possession is adequate in continuity in publicity and in extent. The learned counsel also brought to the notice of this Court paragraph No.10, wherein an observation is made that mere passing of an order of ejectment against a person claiming to be in adverse possession neither causes his dispossession nor 10 discontinuation of his possession which alone breaks the continuity of possession.

12. The learned counsel also relied upon the judgment of Rajasthan High Court in the case of PREM KANWAR v. CHAND SINGH reported in 2004 SCC ONLINE RAJ112and brought to the notice of this Court paragraph No.9 of the judgment wherein it is discussed with regard to it was for the plaintiff to prove his case that he allowed the defendant to remain in possession of the disputed room. In other words, the defendant’s possession was permissive was to be proved by the plaintiff. But on a careful consideration of the entire evidence of the plaintiff as discussed hereinabove, the plaintiff utterly failed to prove that he gave possession of the disputed room to the defendant.

13. The learned counsel also relied upon the judgment of the Apex Court in the case of RAVINDER KAUR GREWAL AND OTHERS v. MANJIT KAUR AND OTHERS reported in (2019) 8 SCC729and brought to the notice of this Court paragraph Nos.58, 60 and 61 of the judgment, wherein the Apex Court held that we are not inclined to accept the submission that there is no conferral of right by adverse possession. Section 27 of the 11 Limitation Act, 1963 provides for extinguishment of right on the lapse of limitation fixed to institute a suit for possession of any property, the right to such property shall stand extinguished. The concept of adverse possession as evolved goes beyond it on completion of period and extinguishment of right confers the same right on the possessor, which has been extinguished and not more than that. In paragraph No.59 it is held that possession is the root of title and is right like the property. As ownership is also of different kinds of viz. sole ownership, contingent ownership, corporeal ownership and legal equitable ownership. The learned counsel also brought to the notice of this Court paragraph No.60 wherein it is discussed that 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. Animus possidendi under hostile colour of title is required.

14. In paragraph No.62, it is observed that 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 12 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.

15. The learned counsel referring this judgment would contend that the First Appellate Court while re-analyzing the evidence on record rightly comes to the conclusion that the plaintiffs have not made out a case when the right has been extinguished.

16. In reply to the arguments of the learned counsel for the respondents, the learned counsel for the appellant would submit that this Court in the case of M. Muniraju (supra), clearly mentioned that no pleadings as adverse possession i.e., only afterthought the defence is taken that the same has been purchased. Hence, the contention of the learned counsel for the respondents cannot be accepted. 13

17. Having considered the grounds urged in the appeal as well as the contention of the parties, this Court has to take note of the substantial questions of law framed by this Court while admitting the appeal, which are as follows:

1. Whether the finding of the First Appellate Court that the defendants have perfected their title to the suit property by adverse possession in the absence of an issue in this regard is sustainable in law?.

2. Whether the First Appellate Court was right in reversing the findings of the Trial Court on issue Nos.1 and 4?.

3. Whether the judgment and decree passed by the First Appellate Court is sustainable in law?.

4. To consider any other question of law which may arise for consideration while hearing the appeal.

18. Having considered the grounds urged in the second appeal and also considering the material available on record and in keeping the substantial questions of law framed by this while admitting the second appeal, this Court has to analyse the material available on record. The first substantial question of 14 law framed by this Court is whether the finding of the First Appellate Court that the defendants have perfected their title to the suit property by adverse possession in the absence of an issue in this regard is sustainable in law. It is settled law that even if specific issue has not been framed and if the parties have understood the lis arosed between them, the Court can consider the material available on record. The clinching issue between the parties is whether the defendants have perfected the title to the suit property by adverse possession and hence, this Court has to consider the pleadings of the parties.

19. It is the case of the plaintiffs before the Trial Court that the father of the defendant Nos.1(a) and (b) and husband of defendant No.2 had put in possession of the suit schedule property by one late Ainora Devaiah who is the husband of first plaintiff. It is the case of the plaintiffs that the property belongs to said Ainora Devaiah. The father of defendant Nos.1(a) and (b) by name Shivanna had approached first plaintiff and her husband and requested them to permit him to reside in their suit schedule house property for some years along with his family since he had no house for their residence in the village and his request was considered and permitted him to reside in the suit 15 schedule property along with his family. It is further contended that even after the death of Shivanna, the defendants continued to reside in the suit schedule property with the permission of the plaintiffs. In the meanwhile, the plaintiffs requested the defendants, as well as the father of defendant Nos.1(a) and (b) when he was alive, in several times to vacate the suit schedule property and handover the vacant possession of the suit schedule property but the defendants requested the plaintiffs to permit them to reside in the suit schedule property for further few years as they have no house for the residence hence, sympathetically their request was considered. Again the plaintiffs requested the defendants to vacate the suit schedule property but the defendants did not vacate the same and dodged the matter on one or the other reasons. Hence, the legal notice was issued against the defendants calling upon them to vacate the suit schedule property but instead of vacating the suit schedule property, they denied the title of the plaintiffs over the suit schedule property thus without any other alternative, the suit was filed against the defendants.

20. In pursuance of suit summons, the defendants appeared and fled the written statement. The first contention 16 taken before the Court that the said Ainora Devaiah who is the kathedar of the suit schedule property has sold the same in the year 1980 in favour of the father of defendant Nos.1 (a) and (b) by name Shivanna for valuable consideration. From the date of purchase, the said Shivanna was residing in the schedule property till his death and these defendants have also been residing in the schedule property from the year 1980 as absolute owners under their own right. The said Shivanna died about 13 years ago and the sad Ainora Devaiah died in the year 1985 itself. Thus, these defendants have been residing in the suit schedule property openly, continuously, without any kind of disturbance from anybody. Accordingly, these defendants have perfected their right by adverse possession in respect of suit schedule property.

21. The Trial Court based on the pleadings of the parties, framed the issues with regard to whether the defendants are in permissive possession or whether the Ainora Devaiah had sold the suit schedule property in favour of father of defendant Nos.1(a) and (b) in the year 1980. The parties have led their evidence. The plaintiffs in order to prove their case, examined second plaintiff as PW1 and got marked the documents at Ex.P1 17 to P7. He was subjected to the cross-examination. In the cross- examination, it is elicited that from 1980 till 2006, the plaintiffs have not disturbed the possession of the defendants over the suit schedule property. It is suggested that his father i.e., Ainora Devaiah had sold the property in favour of Shivanna, hence, they have not questioned the possession of the defendants over the suit schedule property and the said suggestion was denied.

22. The plaintiffs have also examined one witness as PW2. PW2 also reiterates the contents of the plaint and his evidence is also in consonance with the evidence of PW1. He was also subjected to cross-examination. In the cross-examination, it is elicited that he is also the resident of Ainora Devaiah and he was having close acquaintance with Ainora Devaiah and Ainora Devaiah died in the year 1985 and Shivanna who is the father of defendant Nos.1(a) and (b) residing in the suit schedule property from 1980. It is suggested that the Shivanna had purchased the same for valuable consideration from Ainora Devaiah and the said suggestion was denied.

23. On the other hand, the defendants have also examined one witness who is the legal representative of 18 Chamaraju as DW1 and she also reiterated the contents of the written statement in her examination-in-chief affidavit. In her cross-examination it is elicited that she studied up to SSLC and she is not having acquaintance with English and she is not aware of the contents of the affidavit and the same is prepared by her advocate. It is suggested that the suit property belongs to Ainora Devaiah, the witness says that the same was purchased for a sale consideration of Rs.4,000/- in the year 1980 and the said transaction is only an oral transaction. She cannot tell on what date her grandfather Shivanna passed away but she claims that he died about 13 to 14 years back. DW1 denies that the suit property was standing in the name of Ainora Devaiah and after his death, it continued in the name of the first plaintiff. It is elicited that when her grandfather passed away, she was aged about 9 to 10 years, but she claims that the grandfather is in possession of the suit property for a period of 60 years but she is not having any documents to prove the said contention.

24. DW1 admits that her grandfather was having four brothers and there was a partition among them and also admits that in the said partition, her grandfather Shivanna was not allotted any house. It is suggested that when Shivanna was not 19 having any house, Ainora Devaiah gave the permission to her grandfather to reside in the suit house premises and the said suggestion was denied. But she admits that she cannot tell what has transpired between Ainora Devaiah and her grandfather but she claims that the children of Ainora Devaiah’s have died immediately after their birth and hence, the said Ainora Devaiah gave the house to her grandfather. DW1 further admits that she came to know the same thorough her father and also she categorically admits that for the first time, she is telling the same before the Court and same is also not stated in the written statement. It is also elicited that her mother is keeping good health and her mother is also a party in the suit and she is not having any difficulty to give evidence but she says that she cannot tell the date of purchase.

25. The other witness DW2 in his evidence says that the suit schedule property was sold in the year 1980 in favour of late Shivanna by Ainora Devaiah for valuable consideration. The said Shivanna was residing in the said house as absolute owner. DW2 was also subjected to cross-examination. In the cross- examination, he admits that the suit schedule property originally belongs to Ainora Devaiah and during his lifetime, property was 20 standing in his name but he does not know about the transfer of katha in favour of his wife Nanjamma and he cannot tell the date of transaction between Ainora Devaiah and Shivanna but he claims that it was taken place 30 years ago. He also admits that Shivanna was having four brothers and they got partitioned the property long back and Shivianna was not allotted any house. It is suggested that Ainora Devaiah was having two houses and the same was denied. But the witness volunteers that he was having only one house. Further a question was put to the witness that if Ainora Devaiah was having only one house and the same was given to Shiovanna, where he was residing and the witness says that he was residing in his brother’s house. It is suggested that Ainora Devaiah has given permission to Shivanna to reside in the suit house premises and the same was denied.

26. Having considered the evidence available on record and also the findings of both the Courts, this Court has to look into the material with regard to the divergent finding of the Trial Court and also the First Appellate Court and also look into the fact that whether the First Appellate Court has committed an error in granting the relief in favour of the defendants in coming 21 to the conclusion that the defendants have perfected their title over the suit schedule property by adverse possession.

27. Having considered the main substantial question of law and also the other substantial question of law with regard to whether the First Appellate Court was right in reversing the finding of the Trial Court on issue Nos.1 and 4 and judgment and decree of the First Appellate Court is sustainable in law, this Court has to consider the material available on record. The sum and substance of evidence of the parties are also taken note of and no doubt, the principles laid down in the judgments referred supra in the case of MUNIRAJU it is held that mere permissive possession of the plaintiffs of the suit schedule lands for any length of time with an animus against the true owner, no sufficient documents to establish adverse possession.

28. The counsel for the respondents would vehemently contend that the right of the plaintiffs have been extinguished and in support of his arguments, he relied upon the judgment of the Apex Court in the case of MANJIT KAUR (referred supra) wherein also discussed with regard to Article 65 of the Limitation Act and in paragraph 58 discussed with regard to Section 27 of 22 the Limitation Act which provides for extinguishment of right on the lapse of limitation fixed to institute a suit for possession of any property, the right to such property shall stand extinguished. Now this Court has to examine whether the right of the plaintiffs have extinguished in keeping the oral and documentary evidence available on record.

29. The counsel for the appellant also relied upon the judgment of the High Court of Punjab and Haryana in the case of JAWALA SINGH wherein also Articles 64 and 65 was discussed with regard to seeking the relief of adverse possession and the Court held that thus a plea of adverse possession is in essence, a plea of ouster of title of the true owner and the vesting thereof in another. In order to establish a plea of adverse possession, the ingredients thereof must be specifically pleaded and thereafter strictly established by cogent and unimpeachable evidence.

30. The counsel for the respondents relied upon the judgment of this Court in the case of HULLAPPA wherein it is held that Civil Courts cannot declare a title of a person on the basis of the entries in the revenue records. But in the case on 23 hand, it is admitted that the property belongs to Ainora Devaiah. But the claim of the defendants that the said Ainora Devaiah has sold the property in the year 1980 and not given any permissive possession and hence, this judgment is not applicable since the title of Ainora Devaiah is admitted.

31. It has to be noted that DW1 who is the granddaughter of the person who was put in possession i.e., Shivanna, in her cross-examination she categorically claims that her grandfather had purchased the property but she categorically admits that she does not know the contents of the affidavit and also she categorically admits that the same is written by her advocate and hence more credence cannot be given. The first defence of DW1 that the property was purchased in the year 1980 for sale consideration of Rs.4,000/- but the same was only an oral transaction but when the suggestion was made that revenue records are standing in the name of Ainora Devaiah and after his death, it was standing in the name of first plaintiff but she claims that when they went to make the payment, the official did not accept the same and the same came to her knowledge only through her father. 24

32. It is also important to note that it is the case of the plaintiffs that when the property was partitioned among the brothers of said Shivanna, house was not allotted to the grandfather of DW1 and the said fact is also admitted by DW1 in her cross-examination. It is important to note that when the suggestion was made that Ainora Devaiah was having two houses, she claims that he was having only one house. But when the suggestion was made that when the said Ainora Devaiah has given the house to her grandfather, where he was residing, for that she claims that the said Ainora Devaiah went and stayed in the house of his brother. In one breadth, she claims that the children of Ainora Devaiah born were not alive and hence, the said house was given to her grandfather and in another breadth she claims that it was purchased by her grandfather but no material is placed with regard to the sale transaction is concerned. Admittedly, all the revenue documents standing in the name of the said Ainora Devaiah during his lifetime and after his death, the same was transferred to his wife’s name and this fact was taken note of by the Trial Court while passing the judgment and in paragraph 19 made an observation that said statement corroborates with the version of 25 the plaintiffs regarding the circumstances which necessitated such permissive possession.

33. It is also important to note that DW2 also admitted that the said Shivanna was having four brothers and they got partitioned the property and the Shivanna was not allotted any house. It is also the pleading of the plaintiffs that when the Shivanna was not having any house, the said Ainora Devaiah accommodated him and these are the evidences probablise the case of the plaintiffs. But the First Appellate Court reversed the finding of the Trial Court in coming to the conclusion that the defendants have perfected the title. The Court while appreciating the material available on record has to take note of the documents particularly when the claim was made for adverse possession, firstly, the defendants have to admit the title of the plaintiffs and also prove the animus that with the knowledge of the plaintiffs, the possession was continued and the same was not objected. But the counsel for the respondents brought to notice of this Court to the cross-examination of PW1 who admitted that from 1980 till 2006, the possession of the defendants has not been disturbed and the same will not come 26 to the aid of the respondents since the case of plaintiffs is that they were repeatedly demanding their possession.

34. The case of the plaintiffs that permissive possession was given by Ainora Devaiah to the defendants and the same was also continued even after the death of Ainora Devaiah and also subsequent death of the said Shivanna, but only the case of the plaintiffs that demand was made to deliver the possession but the defendants did not deliver the possession, earlier postponed the same and subsequently turned hostile. Unless the defendants admit the ownership, they cannot claim the adverse possession and the basic principle has not been considered by the First Appellate Court. In one breadth, they claims that the property was purchased by the grandfather of DW1 in the year 1980 and in another breadth, they says that the grandfather was in possession from last 60 years but no document is placed before the Court to substantiate the same. The First Appellate Court while reversing the finding of the Trial Court failed to take note of the admission given by DW1 and DW2 and nothing is elicited in the cross-examination of PW1 and PW2 and mainly taken note of the admission of PW1 that there was no interference whatsoever with the defendants’ possession and 27 katha was transferred in the name of the first plaintiff only in the year 2006-07 and the First Appellate Court comes to the conclusion that the said admissions and conduct on the part of the parties clearly establishes the open and uninterrupted possession of the defendants over the suit schedule property hence, comes to the conclusion that the adverse possession has been proved. The very approach of the First Appellate Court is erroneous and failed to take note of the material available on record that the defendants in the written statement on first count of his defence contended that the property was purchased by her grandfather from Ainora Devaiah but for the first time it is deposed that it was purchased for the sale consideration of Rs.4,000/- and it was only an oral transaction hence, it is clear that the oral transaction is not permissible under law and the same is not sustainable in law and no document is placed for having purchased the property. But in support of their claim examined DW2 and both DW1 and DW2 have categorically admitted that when the partition was taken place between the brothers of said Shivanna, the said Shivanna was not allotted any house property. It is also the case of the plaintiffs that when the said Shivanna was not having the house, Ainora Devaiah 28 given the permission to occupy the said suit premises and the case of the plaintiffs is probablised having considered the admission of DW1 and DW2.

35. It is also important to note that when the permission was given in respect of the house property for any length of time which is in occupation of the plaintiffs will not confer any right to the defendants unless an animus against the true owner is proved that too continuous possession with the knowledge of the true owner and allowing the person who is in possession without causing any disturbance to his possession and the same must be continuous one. But the case of the plaintiffs is very clear that permissive possession was given and to consider the adverse possession, a successful plea of adverse possession must be adequate, in continuity, in publicity and in intent. Possession of property, howsoever long, without the knowledge of the true owner, or without intent to hold it adverse to the title of the true owner would negate such a plea. In order to establish a plea of adverse possession, the ingredients thereof must be specifically pleaded and thereafter strictly established by cogent and unimpeachable evidence. But in the case on hand, the first count of defence of the defendants is that the property was 29 purchased by the grandfather of DW1 for sale consideration. When a plea is put forth by the defendants that the property was purchased and claims the ownership as absolute owners, the question of seeking the relief of adverse possession and perfecting the title does not arise. The first plea is with regard to the ownership of the plaintiff and then plead with regard to the possession has been in adequate and in continuity, in publicity and said possession is with the knowledge of the true owner with intent to hold it adverse to the title of the true owner, but no such material is placed before the Court. The First Appellate Court fails to take note of the said fact into consideration and unless the title is admitted, the defendants cannot contend that they have perfected the title by adverse possession and cardinal principle of adverse intent with the knowledge of the true owner that he continued the possession has not been proved hence, the First Appellate Court also fails to take note of the said fact into consideration while reversing the finding of the Trial Court.

36. No doubt, the counsel appearing for the respondents mainly contend that based on the mutation entries, the Civil Courts cannot declare the title of a person based of the entries in 30 the revenue records and the judgment of this Court in the case of HULLAPPA is not applicable to the facts of the case on hand since the defendants also categorically admitted that the property was originally belongs to Ainora Devaiah and after his death, the property was transferred in the name of first plaintiff but their contention is that they are the absolute owners based on the oral transaction and claims that the property was purchased but no substantial material is placed before the Court.

37. The counsel also relied upon the judgment of Rajasthan High Court and relied upon paragraph 9 wherein it is held that it was for the plaintiff to prove his case that he allowed the defendant to remain in possession of the disputed room. In other words, the defendant’s possession was permissive was to be proved by the plaintiff. But in the case on hand, it is specifically pleaded that when the said Shivanna was not having house after the partition, he was given permission to occupy the suit schedule house and this Court also taken note of the admission given by DW1 and DW2 that the said Shivanna was not having any house when the partition was taken place between their brothers and though denied the permissive possession, circumstances in which he was permitted to occupy 31 the house was established. DW1 also admits that when the said Ainora Devaiah lost his children immediately after the birth, under the circumstances, the said suit schedule house was given and the said answer elicited from the mouth of DW1 is also contrary to the defence and hence, the said judgment is also not applicable to the facts of the case since the plaintiffs have proved the permissive possession.

38. Having considered the materials in toto, the findings of the First Appellate Court that the defendants have perfected their title to the suit property by adverse possession is errorneous though substantial question of law is framed that without any issue in this regard, the same is sustainable and this Court already held that if the parties have understood the lis arose between them and also pleadings are very specific with regard to claiming adverse possession, the First Appellate Court fails to take note of cardinal principles while accepting the case of the defendants in coming to the conclusion that they have perfected the title by adverse possession. First of all, it is the claim of the defendants that the property was purchased by the defendants for sale consideration and contrary defence is taken that it is perfected by adverse possession and animus has not 32 been proved and apart from that rights of adverse possession of the title of the true owner with the knowledge of the true owner has not been proved. Apart from that without intent to hold it adverse to the title of the true owner, possession has been continued also has not been proved and instead of, in the admission of DW1 and DW2, they have categorically admitted that the said Shivanna who is the grandfather of DW1 was not having the house when he came out from the house when the partition was took place and the same is probablised the case of the plaintiffs. In the civil case, the Court has to take note of the preponderance of probabilities and probabilities is in favour of the plaintiffs though does not specifically pleaded when the permissive possession was given but in the written statement itself the defendants have claimed that they occupied the said house in the year 1980 but in the other way they claims that they have purchased the property and in order to substantiate their contention nothing is placed on record.

39. This Court would like to rely upon the judgment of the Apex Court in the case of KESAR BAI vs GENDA LAL AND ANOTHER reported in (2022) 10 SCC217wherein it is held that relief based on contradictory grounds, cannot be permitted 33 to claim plea of ownership based on sale deed and plea of adverse possession, both are contrary to each other and plaintiffs cannot be permitted to take both such pleas at the same time. The Apex Court while discussing the same in paragraphs 7 and 8 held that the plaintiffs claimed the title by adverse possession and also based on the sale deed and with regard to the sale deed is concerned all the Courts negated the claim of the plaintiffs of ownership on the basis of the registered sale deed. Therefore, the only claim on behalf of the plaintiffs was the plea of adverse possession is concerned, the High Court has specifically framed a substantial question of law and as such has held the same in favour of the appellant/defendant No.1. The High Court has specifically observed and held that the plea of ownership based on sale deed and plea of adverse possession, both, are contrary to each other and the plaintiffs cannot be permitted to take both the pleas at the same time. Hence, it is clear that the party who seeks the relief of adverse possession, he cannot plead both the ownership as well as adverse possession. In the case on hand also the first count of defence of the defendants is that the said Shivanna had purchased the property from the Ainora Devaiah in the year 1980 and the said 34 transaction was only a oral transaction and whether it is a oral transaction or for having purchased the property through a deed, the defence is very specific that he had purchased the property for sale consideration of Rs.4,000/- and the same is reiterated by DW1, the granddaughter of said Shivanna and the defendants also claims that they have perfected the title by adverse possession hence, they cannot blow hot and cold at the same time. In one breadth they say that they derived the title by oral sale transaction and contrary defence is that they perfected the title by adverse possession and hence, the judgment of the Apex Court is aptly applicable to the case on hand.

40. While seeking the relief of adverse possession, three basic requirements has to be proved that is adequate in continuity, adequate in publicity and adverse to a competitor as contended by the counsel for the respondents and the same is missing and denied the title that is in the knowledge is missing. The other contention is that the plaintiffs have extinguished the right for allowing the defendants to continue in a possession also cannot be accepted. The counsel brought to notice of this Court to Section 27 of the Limitation Act which provides for extinguishment of right on the lapse of limitation fixed to 35 institute a suit for possession of any property. But throughout in the pleadings, the plaintiffs have pleaded that permissive possession was given by Ainora Devaiah and his family members even after the death of the said Shivanna and repeatedly asking to vacate the premises and the same was postponed for one or the other reason and permissive possession also established by the plaintiffs eliciting the answer from the mouth of DW1 and DW2 and the Trial Court also taken note of the same in paragraph 19 but the First Appellate Court while reversing the same fails to take note of the answer elicited from the mouth of DW1 and DW2 and only carried away with the admission given by PW1 that without disturbing the possession for a period of more than 26 to 27 years, the defendants were allowed to continue in the possession but continuous possession for any length of time will not create any right and the defendants cannot perfect the title by adverse possession thus, fails to take note of the material on record while granting the relief of adverse possession. Nowhere it is discussed with regard to requirement of adequate in continuity, adequate in publicity and adverse to a competitor, in denial of title and his knowledge and nothing has been discussed in the judgment of the First 36 Appellate Court with regard to the animus possidendi under hostile colour of title is required to grant the relief of adverse possession. Hence, the First Appellate Court has committed an error in coming to the conclusion that the defendants have perfected their title to the suit schedule property by adverse possession and also committed an error in reversing the finding of the Trial Court on Issue Nos.1 and 4 in coming to the conclusion that the plaintiffs have proved that they are the absolute owners of the suit schedule property and the defendants are in permissive possession thereof and no title documents are also placed by the defendants though they claimed that they are the absolute owners and erroneously reversed the finding with regard to the permissive possession of the defendants and also committed an error in reversing the finding of the Trial Court that the plaintiffs are entitled for the relief of declaration and possession and hence, the substantial question of law framed by this Court that the defendants have perfected their title to the suit schedule property by adverse possession in the absence of an issue in this regard is not sustainable in the eye of law and accordingly first substantial question of law is answered accordingly. 37

41. The second substantial question of law is concerned, the First Appellate Court has committed an error in reversing the finding of the Trial Court in coming to the conclusion that the plaintiffs have not proved the ownership and the permissive possession of the defendants and the same is against the material available on record and such finding is unwarranted.

42. Having considered the material available on record, finding amounts to perversity hence, the third substantial question of law is also answered as the judgment and decree passed by the First Appellate Court is not sustainable in law and committed an error in appreciating both the oral and documentary evidence placed on record and failed to consider the question of law which requires to declare that the defendants have perfected their title over the suit schedule property by adverse possession. Hence, the judgment and decree of the First Appellate Court requires to be set aside and the judgment and decree of the Trial Court is requires to be restored and consequentially the plaintiffs are declared as owners of the suit schedule property and the defendants are directed to deliver the possession of the suit schedule property to the plaintiffs within two months from the date of this order failing which, the 38 plaintiffs are entitled to get the possession under due process of law.

43. In view of the observations made above, I pass the following:

ORDER

(i) The appeal is allowed. (ii) The judgment and decree dated 25.01.2017 passed in R.A.No.348/2016 is set aside and consequently, the judgment and decree dated 17.01.2015 passed in O.S.No.411/2007 is restored. (iii) The plaintiffs are declared as owners of the suit schedule property and the defendants are directed to deliver the possession of the suit schedule property to the plaintiff within two months from the date of this order failing which, the plaintiffs are at liberty to take the possession in accordance with law. Sd/- JUDGE MD/SN