Karnataka High Court
P Murugan vs H Nagaraj on 13 March, 2026
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RFA No. 501 of 2016
C/W RFA No. 1229 of 2018
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF MARCH, 2026
PRESENT
THE HON'BLE MR. JUSTICE D K SINGH
AND
THE HON'BLE MS. JUSTICE TARA VITASTA GANJU
REGULAR FIRST APPEAL NO. 501 OF 2016 (DEC/INJ)
C/W
REGULAR FIRST APPEAL NO. 1229 OF 2018
IN RFA No. 501/2016
BETWEEN:
1. SRI. P. MURUGAN
S/O LATE SRI. PONNU SWAMY MUDALIAR,
SINCE DECEASED BY HIS LR'S,
1(a) SMT. GANGAMMA
W/O LATE SRI. P.MURUGAN,
AGED ABOUT 78 YEARS,
R/AT OLD NOU-22, NEW NO.12,
5TH CROSS, OLD OKALI PURAM,
BANGALORE-21.
2. M.RAGHUNATHAN
S/O MURUGAN,
AGED ABOUT 54 YEARS,
3. SRI. P.UMAPATHY
AGED ABOUT 24 YEARS,
S/O LATE SRI. PONNU SWAMY MUDALIAR,
4. SRI. P.SANTHI,
W/O SRI. P.UMAPATHY,
AGED ABOUT 50 YEARS,
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APPELLANTS 1(a), 2, 3 AND 4 ARE
R/AT OLD NO.U-22, NEW NO.12,
5TH CROSS, OLD OKALIPURAM,
BENGALURU-560 021.
...APPELLANTS
(BY SMT. R.V.NAIK., ADVOCATE)
AND:
1. SRI. H.NAGARAJ
S/O LATE SRI. HANUMAIAH,
AGED ABOUT 67 YEARS,
PRESENTLY R/AT NO.3, 6TH CROSS,
40 FEET ROAD, MANJUNATHNAGAR,
2ND PHASE, BANGALORE-560 010.
2. SMT. KUPPAMMA.G.
W/O LATE SRI. GOVINDARAJ.P.,
D/O LATE SRI. PONNU SWAMY MUDALIAR,
SINCE DECEASED BY HER LR'S,
a) SRI. GOVINDARAJ.P.,
S/O LATE SRI. MUNISWAMY,
AGED ABOUT 68 YEARS,
b) SRI. KUMAR
S/O LATE SRI. GOVINDARAJ.P.,
AGED ABOUT 40 YEARS,
RESPONDENTS 2(a) AND 2(b) ARE
R/O NO.30/13, VIJAYARANGAN STREET,
SAIDHAPETTAI, ARANI POST,
ARNI, TIRUVANNAMALAI,
TAMIL NADU-632 301.
...RESPONDENTS
(BY SRI. M.ASHWATHANARAYANA REDDY., ADVOCATE FOR
C/R1;
V/O/DTD: 15.11.2023, APPELLANT NO.1 IS TREATED AS LR OF
R2;
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V/O/DTD:18.07.2023, R2(A & B) ARE HELD SUFFICIENT)
THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W SEC.96 OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED 16.02.2016
PASSED IN O.S NO.7372/2010 ON THE FILE OF THE XII ADDL.
CITY CIVIL & SESSIONS JUDGE, BENGALURU, DECREEING THE
SUIT FOR DECLARATION AND PERMANENT INJUNCTION.
IN RFA NO. 1229/2018
BETWEEN:
1. SRI. P.MURUGAN
S/O LATE SRI.PONNUSWAMY MUDALIAR,
SINCE DEAD BY LR'S,
1a) SMT. GANGAMMA
W/O LATE SRI.P.MURUGAN,
AGED ABOUT 79 YEARS,
R/AT NO.22, NEW NO.12,
15TH CROSS, OLD OKALIPURAM,
BENGALURU-560 021.
2. SRI. M.RAGHUNATHAN,
S/O SRI. P.MURUGAN,
AGED ABOUT 56 YEARS,
3. SRI. P.UMAPATHY
S/O LATE SRI.PONNUSWAMY MUDALIAR,
AGED ABOUT 69 YEARS,
4. SMT. SANTHI
W/O SRI. UMAPATHY.
AGED ABOUT 56 YEARS,
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ALL ARE R/O OLD NO.V.22,
NEW NO.12, 5TH CROSS,
OLD OKALIPURAM,
BENGALURU-560 021.
...APPELLANTS
(BY SRI. R.V.NAIK, ADVOCATE )
AND:
SRI. H.NAGARAJ
S/O LATE SRI.B.N.HANUMAIAH,
AGED ABOUT 60 YEARS,
R/A NO.3, 6TH CROSS, 40 FT. ROAD,
MAJUNATHANAGARA, 2ND PHASE,
BENGALURU-560 010.
...RESPONDENT
(BY SRI. M.ASHWATHANARAYANA REDDY, ADVOCATE
(V/O/DTD: 07.08.2024)
THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED: 16.2.2016 PASSED IN OS
NO.7371/2011 ON THE FILE OF THE XII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH NO.27), BANGALORE, DISMISSING
THE SUIT FOR DECLARATION AND INJUNCTION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 27.11.2025, THIS DAY, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE JUDGMENT
WAS DELIVERED THEREIN AS UNDER:
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CORAM: HON'BLE MR. JUSTICE D K SINGH
&
HON'BLE MS. JUSTICE TARA VITASTA GANJU
CAV JUDGMENT
(PER: HON’BLE MS. JUSTICE TARA VITASTA GANJU)
TABLE OF CONTENTS
I. Preface: ……………………………………………………… 5
II. Brief Facts: …………………………………………………. 6
III. Impugned Judgment: …………………………………… 14
IV. Contentions of the Appellants/Defendants: …………. 15
V. Contentions of Respondent No.1/Plaintiff: ………….. 20
VI. Issues for Consideration: ………………………………. 22
VII. Analysis and Findings: ………………………………….. 23
VIII.Conclusion: ……………………………………………….. 44
I. Preface:
1. These appeals are directed against the common
Judgment and Decree dated 16-02-2016 passed by the XII
Additional City Civil and Sessions Judge, Bengaluru, in
O.S.No.7372/2010 and O.S.No.7371/2011, whereby the
suit filed by the respondent No.1/plaintiff in
O.S.No.7372/2010 for declaration of title, possession and
cancellation of Gift Deeds was decreed against the
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appellants/defendants and the suit filed by the appellants in
O.S.No.7371/2010 seeking declaration of title by adverse
possession against the respondent No.1/plaintiff was
dismissed.
2. For the sake of convenience, the parties are referred
to as they were arrayed before the learned Trial Court in
O.S.No.7372/2010.
II. Brief Facts:
3. The brief facts are that the respondent
No.1, as plaintiff in O.S.No.7372/2010 and as
defendant in O.S.No.7371/2011, contended that late
Sri. B.N.Hanumaiah was the absolute owner of the suit
schedule property, bearing Old No.U-22, New No.12,
5th Cross, Old Okalipuram, Bengaluru, [hereinafter referred
to as the “suit schedule property”] having purchased it from
Mrs. B. Peacock under a registered Sale Deed dated
13.12.1958. The respondent No.1/plaintiff asserted that
late Sri. B.N.Hanumaiah had been in continuous possession
of the suit schedule property and had effected khata in his
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name and regularly paid all property taxes and statutory
dues in respect thereof.
4. The respondent No.1/plaintiff referred to earlier
litigations between the parties contending that in execution
proceedings arising out of O.S.No.486/1973, the suit
property was attached. However, thereafter, O.S.
No.1019/1973 was filed by Smt. Muttamma, the
appellants/defendants’ mother asserting ownership of the
suit schedule property and specific performance of an
Agreement to Sell dated 21.01.1973 which was dismissed,
and the attachment of the suit property was upheld.
Thereafter, O.S.No.7123/1980 filed by her for declaration
of title and injunction in respect of the suit property was
dismissed. A subsequent suit being O.S.No.1010/1993
seeking declaration of title by adverse possession was also
dismissed. It is contended that, in all earlier proceedings,
the claims of ownership and adverse possession set up by
the appellants/defendants’ family were consistently
rejected.
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4.1. The respondent No.1/plaintiff further submitted that,
after the death of late Sri. B.N.Hanumaiah, the other legal
heirs executed a registered Release Deed dated 17.04.2010
in his favour, thereby vesting the title of the suit schedule
property with him.
5. The appellants/defendants, on the other hand, other
than admitting that the suit schedule property originally
belonged to Sri. C.B. Oakley have denied that the
respondent No.1/plaintiff had any right, title or interest
therein. It was contended that the father of the
appellants/defendants, Sri. Ponnuswamy Mudaliar and one
Narayanappa entered into an Agreement to Sell
dated 23.11.1949 [Ex.D1] with Sri. C.B.Oakley and
part consideration was paid. Pursuant thereto,
Sri. Ponnuswamy Mudaliar was put in possession of the suit
property. He thereafter got the khata recorded in his name
and started paying taxes and after his death in the year
1965, the mother of the appellants/defendants Smt.
Muttamma got the khata endorsement in her name on
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22.08.1975 [Ex.D-2] and paid property taxes thereafter.
It is further stated that although Sri. C.B.Oakley died in
December 1949 naming his brother Howard Oakley as the
executor of his Will and the said Howard Oakley executed
the Sale Deed in favour of Sri. B. H. Peacock on 23.07.1951,
the possession of the suit property remained with Sri.
Ponnuswamy Mudaliar. It is further averred that on
13.12.1958 when Mrs. B.Peacock, wife of Sri. B.H.Peacock
sold the suit property in favour of Sri. B.N Hanumaiah, the
father of the respondent No.1/plaintiff, the possession of
the suit property continued to remain with Sri. Ponnuswamy
Mudaliar. It is thus contended that Smt. Muttamma has
been in possession and enjoyment of the suit property for
over 40 years continuously and without any interruption
from any of the appellants/defendants. The possession of
the suit scheduled property has been adverse for more than
40 years and thus the second defendant’s claim is time
barred. It is further stated that the cause of action to file
the suit arose on 07.12.1976 when the
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appellants/defendants’ suit for declaration, injunction and
setting aside of the order was dismissed.
5.1. It is thus averred that the appellants/defendants and
their predecessors in title are in possession and enjoyment
of the suit property since 1949 when the Sale Agreement
between Sri. C.B.Oakley and Sri. Ponnuswamy Mudaliar was
executed and part payment of the consideration in the sum
of Rs.700/- was paid. The appellants/defendants had
thereafter perfected the title by adverse possession and
transfer of rights was complete.
6. In the year 2010, the appellants/defendants
attempted to carry out construction on the suit schedule
property, relying upon Gift Deed dated 22.10.2007
executed by Smt. Muttamma in their favour, which led to
the filing of O.S.No.7372/2010. It was asserted therein that
Smt. Muttamma had no title to the suit property and
therefore she had no right to execute the said Gift Deed.
7. As stated above, two suits were filed being
O.S.No.7372/2010 and O.S.No.7371/2011 by the
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appellants and the respondent No.1 respectively. It is
apposite to set out the reliefs sought in these two suits
which is reproduced below:
“Relief sought by Appellants/defendants in
O.S.No.7371/2011
(a) to declare that the plaintiffs are the absolute owners
of the suit schedule property;
(b) for declaring that the plaintiffs have perfected their
title by way of adverse possession;
(c) for consequential injunction restraining the defendant
and his men from disturbing the peaceful enjoyment of the
property by the plaintiffs;
(d) and for such other costs and reliefs the Hon’ble Court
may deem fit to grant in the circumstances of the case.”
Relief sought by Respondent No.1/plaintiff in
O.S.No.7372/2010:
“(a) to declare that the plaintiff is the absolute owner of
the suit schedule property;
(b) to direct the defendants to deliver the possession of
the schedule property;
(c) to direct the registered Gift Deeds vide Reg.
Nos.2526/2007-08 dated 22.10.2007 and 2527/2007
dated 22.10.2007 registered in the office of the Sub-
Registrar, Srirampura, Bangalore by defendant Nos. 1 to
3 in favour of defendant Nos. 2 and 4 are illegal and null;
(d) for permanent injunction restraining the defendants or
their agents, men etc. or anybody claiming under them or
through them from alienating or creating a charge in any
manner over the Suit Schedule Property;
(e) for mesne profits; and
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(f) to grant such other relief or reliefs as this Hon’ble Court
may deem fit to grant to the Plaintiff under the
circumstances of the case including the costs of the above
proceedings in rendering justice, equity and good
conscience.”
8. The learned Trial Court after examining the
pleadings between parties, framed the following two
separate sets of Issues in the suits:
“Issues in O.S.No.7372/2010
1. Whether the plaintiff proves his title over the suit
property?
2. Whether the plaintiff proves that the defendants are
tenants?
3.Whether the plaintiff proves that the gift deeds executed
defendant nos. 1 and 3 in favour of defendant Nos. 2 and
4 on 22.10.2007 are illegal null and void?
4. Whether the plaintiff is entitled for possession?
5.Whether the defendant Nos.2 to 4 prove that
Ponnuswamy Modaliar is the absolute owner of the suit
schedule property on the strength of an agreement of sale
dated 23.11.1949 executed by Mr. C.B. Oakley as pleaded
in paras 20 and 21 of the written statement?
6. Whether the defendants prove that they have perfected
their title over the suit property by means of adverse
possession?
7. What order or decree?”
Issues in O.S.No.7371/2011
1. Whether the plaintiff proves his title over the suit
property?
2. Whether the plaintiff proves that the defendants are
tenants?
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3. Whether the plaintiff proves that the gift deeds
executed defendant nos. 1 and 3 in favour of defendant
Nos. 2 and 4 on 22.10.2007 are illegal null and void?
4. Whether the plaintiff is entitled for possession?
5.Whether the defendant Nos.2 to 4 prove that
Ponnuswamy Modaliar is the absolute owner of the suit
schedule property on the strength of an agreement of sale
dated 23.11.1949 executed by Mr. C.B. Oakley as pleaded
in paras 20 and 21 of the written statement?
6. Whether the suit is in time?
7. Whether the court fee paid is sufficient?
8. What order or decree?”
8.1. The plaintiff in O.S.No.7372/2010, Sri. H. Nagaraj was
examined as PW-1 while plaintiff No.2 in O.S.No.7371/2011
– Sri. M.Raghunathan was examined as DW-1. In addition,
one Perumal, his neighbour was examined as DW-2 to prove
two documents, Exs.D-34 and D-35 which are Election Card
and Marriage Card of Perumal, respectively.
9. The appellants, as defendants in O.S.No.7372/2010
and as plaintiffs in O.S.No.7371/2011, contended that the
suit property originally belonged to Sri. C.B.Oakley, who
executed an Agreement of Sale dated 23.11.1949 in favour
of their father, late Sri. Ponnuswamy Mudaliar and put him
in possession. They asserted that their father constructed a
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residence and a shop premises on the suit property and that
the family remained in continuous and exclusive possession
for several decades. After the death of late Sri.
Ponnuswamy Mudaliar, their mother Smt. Muttamma was
recorded as the khathedar, and that the taxes and statutory
dues were paid. They contended that late Sri.
B.N.Hanumaiah did not ever have possession over the suit
schedule property.
9.1. The respondent No.1/plaintiff on the other
hand contended that he had a valid and legal title to the
property through Sri. B.N.Hanumaiah and that neither
Smt. Muthamma nor Sri. Ponnuswamy Mudaliar had any
title to the suit property.
III. Impugned Judgment:
10. By the Impugned Judgment, the learned Trial Court
held that the respondent No.1/plaintiff had proved his title
through the registered Sale Deed and the Release Deed.
The pleas of tenancy and adverse possession were rejected
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and the Gift Deed dated 22.10.2007 was declared void.
Thus, the respondent No.1/plaintiff’s suit was decreed, and
the appellants/defendants’ suit was dismissed.
11. This led to the filing of these two appeals before this
Court by the appellants/defendants, one challenging the
decree passed in the suit filed by the respondent
No.1/plaintiff and the second challenging the dismissal of
the suit filed by the appellants/defendants.
11.1. This Court by its order dated 07.06.2016, admitted
R.F.A.No.501/2016 and passed an interim order staying the
impugned Judgment and Decree. The said order has
continued since.
IV. Contentions of the Appellants/Defendants:
12. Learned counsel for the appellants/defendants has
contended that their possession commenced pursuant to
the execution of the Agreement of Sale dated 23.11.1949
and continued openly and uninterruptedly. It was argued
that even if the initial possession was permissive, it became
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hostile when a suit asserting absolute ownership was filed
in the year 1979, and the limitation under Article 65 of the
Limitation Act, 1963 commenced from that date, rendering
the respondent No.1/plaintiff’s suit barred by time.
13. The learned counsel for the appellants/defendants
has contended that it is pursuant to the order passed in RFA
No.681/1999 dated 07.07.2006 that the appellants/
defendants filed O.S.No.7371/2011 claiming title by
adverse possession. It is contended that the starting point
of limitation as set out in Article 65 of the Limitation Act
arose when the pleadings are filed in Misc. Case
No.358/1975 and O.S.No.7123/1980 claiming hostile title.
Since the suit for possession as per Article 65 of the
Limitation Act is required to be filed within twelve years
from the date when the possession became adverse, it
should have been filed within twelve years from 1975/1979.
Thus, the suit filed by the respondent No.1/plaintiff
(O.S.No.7372/2010) in the year 2010 was barred by
limitation.
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14. The second contention raised by the appellants/
defendants is that the right to sue in terms of Article 58 of
the Limitation Act first accrued when the sale deed was
executed on 13.12.1958 and despite the execution, the
respondents/plaintiffs were not put in possession of the suit
schedule property. Thus, it is contended that the suit for
declaration of title and possession is barred by the
provisions of Article 58 of the Limitation Act as well. In
support of the said contention, learned counsel for the
appellants/defendants has also placed reliance on the
judgments of the Supreme Court in Rajeev Gupta v.
Prashant Garg1 and Khatri Hotels (P) Ltd. v. Union of
India2 to contend that under Article 58 of the Limitation
Act, the period of limitation commences when the right to
sue first accrues, and that successive or continuing causes
do not give rise to a fresh period of limitation. Reliance was
also placed on the judgment of the Supreme Court in
1
2025 SCC OnLine SC 889
2
(2011) 9 SCC 126
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Rajpal Singh v. Saroj3 to submit that where the principal
relief is one of declaration, the limitation applicable is three
years, and the prayer for possession being consequential
cannot extend the period of limitation. It is therefore
contended that once the right to sue had accrued in the year
1958 upon execution of the registered sale deed, the failure
to institute the suit within the prescribed period renders the
present suit barred by limitation. The relevant extract of the
Rajeev Gupta‘s case relied upon is below:
“17. A coordinate Bench of this Court, in its decision of
Khatri Hotels (P) Ltd. v. Union of India, examined the
position Under Article 120 of the Limitation Act, 1908 vis-
a-vis Article 58 of the Limitation Act to observe that the
right to sue would accrue when there was a clear and
unequivocal threat of infringement of the Plaintiff’s right.
However, while the former provision simply stated that the
period of limitation commenced when the right to sue
accrues, in a marked linguistic departure, the latter
provision stated that the limitation would commence when
the right to sue “first” accrued. Having observed so, this
Court held that:
30. While enacting Article 58 of the 1963 Act,
the legislature has designedly made a
departure from the language of Article 120 of
the 1908 Act. The word ‘first’ has been used
between the words ‘sue’ and ‘accrued’. This
would mean that if a suit is based on
multiple causes of action, the period of
limitation will begin to run from the date
when the right to sue first accrues. To put3
(2022) 15 SCC 26018
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it differently, successive violation of the
right will not give rise to fresh cause and
the suit will be liable to be dismissed if it
is beyond the period of limitation counted
from the day when the right to sue first
accrued.”
[Emphasis Supplied]
xxx xxx xxx
23. Further, in Rajpal Singh v. Saroj, this Court held that
where a composite suit had been filed for cancellation of
the sale deed and of possession, the limitation period
would have to be adjudged from the primary relief of
cancellation which is 3 (three) years, and not the ancillary
relief of possession which is 12 (twelve) years. In holding
so, this Court held that:
14. The submission on behalf of the original
Plaintiff (now represented through her heirs)
that the prayer in the suit was also for recovery
of the possession and therefore the said suit
was filed within the period of twelve years and
therefore the suit has been filed within the
period of limitation, cannot be accepted. Relief
for possession is a consequential prayer and
the substantive prayer was of cancellation of
the sale deed dated 19-4-1996 and therefore,
the limitation period is required to be
considered with respect to the substantive
relief claimed and not the consequential relief.
When a composite suit is filed for
cancellation of the sale deed as well as for
recovery of the possession, the limitation
period is required to be considered with
respect to the substantive relief of
cancellation of the sale deed, which would
be three years from the date of the
knowledge of the sale deed sought to be
cancelled. Therefore, the suit, which was filed
by the original Plaintiff for cancellation of the
sale deed, can be said to be substantive
therefore the same was clearly barred by
limitation. Hence, the learned Trial Court ought
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to have dismissed the suit on the ground that
the suit was barred by limitation….”
[Emphasis Supplied]
V. Contentions of Respondent No.1/Plaintiff:
15. Learned counsel for the respondent No.1/plaintiff
supported the Impugned Judgment and submitted that
absolute title flowed from the registered Sale Deed dated
13-12-1958 and the subsequent Release Deed executed by
the legal heirs of late Sri. B.N.Hanumaiah. It was submitted
that possession of the appellants/defendants originated
under an Agreement of Sale and was permissive in nature,
that there was no pleading or proof of hostile repudiation of
title. It was averred that the cause of action arose only in
2010 when the appellants/defendants asserted hostile title
by executing Gift Deed and attempting construction.
16. Learned counsel for the respondent No.1/plaintiff has
further contended that despite claiming title through an
Agreement to Sell dated 23.11.1949, no suit for specific
performance was filed by the appellants/defendants
claiming ownership of the property. In addition, it has been
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contended that after the decree was passed in RFA
No.681/1999 and attachment order qua suit schedule
property was set aside, Sri. Murugan (appellant No.1)
executed a registered Gift Deed in favour of his son of the
southern portion of the suit schedule property on
09.10.2004 (Ex.P6) and also on the same day, Sri. P.
Umapathi (appellant No.3) executed a Gift Deed in favour
of his wife Smt. Shanthi on the remaining northern portion
of the suit schedule property (Ex.P7). The respondent
No.1/plaintiff has contended that in the suit in
O.S.No.7372/2010 for declaration of title and delivery of
possession, the respondent No1/plaintiff has specifically
pleaded that cause of action has arisen on 02.03.2010 when
the respondent No.1/plaintiff had knowledge of the
fraudulent Gift Deeds and when the FIR against these Gift
Deeds was registered on 07.08.2010. It is thus contended
that the suit is filed within time and is not barred by
limitation.
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17. Learned counsel for the respondent No.1/plaintiff has
also sought to rely upon the judgment of the Supreme Court
in Achal Reddy v. Ramakrishna Reddiar4, to submit that
the party who obtains possession under an Agreement to
Sell, cannot claim adverse possession and that if the
possession is legal and proper referable to a contract, it
cannot be adverse. Thus, it is contended that the
appellants/defendants cannot claim title by adverse
possession.
VI. Issues for Consideration:
18. The questions that arise for consideration before this
Court are:
(i) Whether the suit as filed by the
respondents was barred by limitation, and
(ii) Whether the appellants had perfected the
title of the suit scheduled property by adverse
possession?
4
(1990) 4 SCC 706
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VII. Analysis and Findings:
19. At this stage, it is apposite to set out the provisions of
the Limitation Act, which would be relevant:
Description of suit Period of Time from which the
Limitation period begins to run
58. To obtain any other 3 years When the right to sue
declaration. first accrues.
XXX XXX XXX 65. For possession of 12 years When the possession of immovable property or the defendant becomes any interest therein adverse to the plaintiff. based on title.
19.1. A plain reading of these provisions shows that Section
58 of the Limitation Act provides for a limitation of three
years to obtain a decree of declaration. Section 65 of the
Limitation Act provides a period of limitation for a
possession of immovable property as 12 years from when
the possession continues adverse to a plaintiff.
20. In order to better appreciate the contentions of the
appellants/defendants, it is apposite to set out the
transaction in relation to the suit property through the flow
chart prepared.
23 NC: 2026:KHC:15156-DB RFA No. 501 of 2016 C/W RFA No. 1229 of 2018 HC-KAR FLOW CHART Havard Oakley C. B. Oakley (Brother) (died in 1950) (Executor of will) ATS 1949, Ponnuswamy B. H. Peacock part consideration Registered Sale Deed: paid Rs.700/- 23.07.1951 Gift Deed dt.22.10.2007 B.N. Hanumaiah by Muttamma Registered Sale Deed: in favour of 13.12.1959 appellants (Murugan) Mortgaged property 12.08.1959 Nagarathnamma Murugan is descendent of Ponnuswamy/Muttamma Agreement to Sell - 21.01.1973 by Muttamma with B.N. Hanumaiah-Mortgagee Property was mortgaged embroiled in litigation Release Deed by B.N. Hanumaiah's heirs dt.17.04.2010 -in favour of Nagaraj Nagaraj claims title through B.N.Hanumaiah(father) 24 NC: 2026:KHC:15156-DB RFA No. 501 of 2016 C/W RFA No. 1229 of 2018 HC-KAR 20.1. As can be seen from the above, the
appellants/defendants’ predecessor-in-interest do not have
a registered title. The appellants/defendants claim rights by
virtue of the Agreement to Sell. On the other hand, the title
with the respondent No.1/plaintiff is based on a registered
instrument and is continuous. Learned counsel for the
appellants/defendants has laid emphasis on a judgment and
decree dated 08.02.1979 passed by the 18th Additional City
Civil Judge, CCH-10, Bangalore City, in O.S.No.7123/1980
to contend that this case was filed by Muttamma, mother of
the appellants/defendants and the suit was filed for
declaration of title and injunction and originally was
numbered as O.S.No.415/1979 (re-numbered as
O.S.No.7123/1980). It is contended that in this suit, the
said Muttamma had stated that she has been in possession
and enjoyment of the suit schedule property continuously
and without any interruption for over 40 years and that
B.N.Hanumaiah or his persons claiming through him do not
have any right, title or interest in the suit schedule property.
It is further contended by the appellants/defendants that in
25
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this suit, the Court restrained the respondents herein from
any kind of interference with the suit schedule property till
the plaintiff (Muttamma) is evicted in due course of law.
20.2. This judgment was challenged by the
appellants/defendants by filing RFA No.681/1999 and by a
judgment and decree dated 07.07.2006 the High Court
modified the decree of the Trial Court and held that the title
could not be declared of the appellant Muttamma in the
appeal since the suit was not filed for declaration of title and
if a suit is subsequently filed claiming title by adverse
possession, the parties are at liberty to place their
appropriate contentions. The High Court also set aside the
order of attachment passed in O.S.No.486/1973 which
attached the property in a suit for recovery filed against said
B.N.Hanumaiah. The relevant extract of the order dated
07.07.2006 is below:
“9. As regards the claim of the appellant for a declaration
of title, the basis for such declaration is only the
possession of the property for a considerable number of
years. This is not a suit for a declaration of title against
the owner of the property. Though the respondent No.2
claimed title to the property, no documents having
been produced in evidence and the plaintiff’s claim26
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itself being that he is not the owner of the property,
the question of adverse possession against him does
not arise. It is submitted by Sri. Vidyadhar, learned
counsel for the respondent No.2(b), (d) and (e) that
certain documents had been produced by the
defendant No.2 in the Trial Court, but they have not
been exhibited and they have not been kept in the Lower
Court records. In the absence of admission of those
documents in evidence, the Court is not in a position to
determine the claim of the defendant No.2 that he was the
owner of the property. Therefore there being no
evidence to show the ownership of the property by
the defendant No.2, the question of granting a
declaration of title in favour of the plaintiff against
the defendant No.2 in this case does not arise. In
case subsequently there is any suit, the parties are
at liberty to place their contentions and the present
plaintiff is not precluded from showing that by
adverse possession, she had become the owner.
However, it is clear that she was in possession of
the suit property since long and she was in
possession on the date of the suit.”
[Emphasis Supplied]
21. It is also the case of the respondent No.1/plaintiff that
the appellants and late Smt.Mutamma are only tenants in
respect of the suit schedule property and they are in illegal
occupation of the suit schedule property and liable to pay
damages. The respondent No.1/plaintiff has also challenged
the execution of the fraudulent Gift Deeds that the Gift Deed
executed by late Smt. Muttamma in favour of Defendant
Nos.1 and 2, which was produced and marked in evidence
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on behalf of the defendants, was fraudulent, void and not
binding on him.
21.1. Thus, the cause of action as set out in the plaint,
arose on 2/3 March 2010. It is apposite to set out cause of
action as reproduced in the plaint in O.S.No.7372/2010
which is below:
“24. That the cause of action for the above suit arose on
2/3.3.2010 when the plaintiff had the knowledge of the
fraudulent Gift Deeds and on 7.8.2010 when the plaintiff
lodged police complaint against the defendants for the
offences punishable under Section 465, 467, 468, and 471
of IPC and subsequently, within the jurisdiction of this
Hon’ble Court.”
22. Indisputably, the appellants/defendants’ possession,
originated under an Agreement of Sale dated 23.11.1949.
23. The Supreme Court in Achal Reddy‘s case has held
that an Agreement of Sale does not by itself create any
right, title or interest in immovable property and that where
the parties contemplate execution of a registered sale deed,
title passes only on such execution and registration; till
then, the possession of the transferee cannot be considered
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as adverse and remains permissive and on behalf of the true
owner. The relevant extract is set out below:
“8. The Division Bench noticed that all that the plaintiff
has to prove is that he or his predecessor-in-title was in
possession at any time between February 11, 1947 and
February 11, 1959. If between February 11, 1947 and July
17, 1947 the possession of Varada Reddi was possession
held on behalf of Dasu Reddi then it could be held that the
plaintiff’s predecessor-in-title had been in possession
within 12 years prior to the suit. The Division Bench held
that the transaction of July 10, 1946 was in fact and in law
only on oral agreement for sale and that on the
assumption that it was an oral sale the learned Single
Judge failed to apply the legal position as enunciated in
Annamali v. Muthiah5. They observed that possession
as held by Varada Reddi subsequent to July 10, 1946
and before he instituted the suit in 1949 for specific
performance was in the consciousness that it was
only possession on behalf of the real owner. Even if
the execution of an infructuous sale deed on July 17,
1947 by Dasu Reddi in favour of Varada Reddi is
assumed to have altered the complexion of events
in any manner, the possession by Varada Reddi from
July 1, 1946 up to July 17, 1947 at least was clearly
possession held on behalf of Dasu Reddi, the
predecessor-in-title of the plaintiff. If the plaintiff’s
predecessor had been in possession of the suit property
on July 17, 1947, that is to say within 12 years prior to
the institution of the present suit on February 11, 1959,
there can be little doubt that the plaintiff must succeed on
the question of possession as well. In this view the
judgment of the learned Single Judge was reversed.
9. There is no controversy that the plaintiff has to
establish subsisting title by proving possession
within 12 years prior to the suit when the plaintiff
alleged dispossession while in possession of the suit
property. The first appellate court as well as the second
appellate court proceeded on the basis that the plaintiff is
not entitled to succeed as such possession has not been
proved. The concurrent findings that the plaintiff had5
ILR (1965) 1 Mad 25429
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title in spite of the decree for specific performance
obtained against him, when that decree had not
been executed are not assailed by the appellant in
the High Court. The appellant cannot, therefore, urge
before us on the basis of the findings in the earlier suit to
which he was not a party that Ex. A-1 sale deed is one
without consideration and does not confer valid title on the
plaintiff. The sole question that has been considered
by the High Court is that of subsisting title. We have
to consider whether the question of law as to the character
of the possession Varada Reddi had between July 10, 1946
and July 17, 1947 is adverse or only permissive. In the
case of an agreement of sale the party who obtains
possession, acknowledges title of the vendor even
though the agreement of sale may be invalid. It is
an acknowledgement and recognition of the title of
the vendor which excludes the theory of adverse
possession. The well settled rule of law is that if a
person is in actual possession and has a right to
possession under a title involving a due recognition
of the owner’s title his possession will not be
regarded as adverse in law, even though he claims
under another title having regard to the well
recognised policy of law that possession is never
considered adverse if it is referable to a lawful title.
The purchaser who got into possession under an
executory contract of sale in a permissible character
cannot be heard to contend that his possession was
adverse. In the conception of adverse possession
there is an essential and basic difference between a
case in which the other party is put in possession of
property by an outright transfer, both parties
stipulating for a total divestiture of all the rights of
the transferor in the property, and in a case in which
there is a mere executory agreement of transfer
both parties contemplating a deed of transfer to be
executed at a later point of time. In the latter case the
principle of estoppel applies estopping the transferee from
contending that his possession, while the contract
remained executory in stage, was in his own right and
adversely against the transferor. Adverse possession
implies that it commenced in wrong and is maintained
against right. When the commencement and continuance
of possession is legal and proper, referable to a contract,
it cannot be adverse.”
[Emphasis Supplied]
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23.1. It was further held in the Achal Reddy‘s case that
in the case of a contract of sale or Agreement to Sell, where
the transferee is put in possession of the property and the
parties contemplate the execution of a registered sale deed,
the vendor has to execute a registered sale deed. However,
where in the pursuance of an oral transfer or unregistered
transfer deed, the transferee is put in possession, the
transferor retains no right or title to the property. In such a
case, the transferee is in possession as the owner. It is
apposite to set out relevant extract below:
“10. In the case of an executory contract of sale where the
transferee is put in possession of the property in
pursuance of the agreement of sale and where the
parties contemplate the execution of a regular
registered sale deed the animus of the purchaser
throughout is that he is in possession of the
property belonging to the vendor and that the
former’s title has to be perfected by a duly executed
registered deed of sale under which the vendor has to
pass on and convey his title. The purchaser’s possession
in such cases is of a derivative character and in clear
recognition of and in acknowledgement of the title of the
vendor. The position is different in the case where in
pursuance of an oral transfer or a deed of transfer
not registered the owner of a property transfers the
property and puts the transferee in possession with
the clear animus and on the distinct understanding
that from that time onwards he shall have no right
of title to the property. In such a case the owner of
the property does not retain any vestige of right in
regard to the property and his mental attitude31
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towards the property is that it has ceased to belong
to him altogether. The transferee after getting into
possession retains the same with the clean animus
that he has become the absolute owner of the
property and in complete negation of any right or
title of the transferor, his enjoyment is solely as
owner in his right and not derivatively or in recognition
of the title of any person. So far as the vendor is concerned
both in mind and actual conduct, there is a total divestiture
of all his right, title and interest in the property. This
applies only in a case where there is a clear
manifestation of the intention of the owner to divest
himself of the right over the property. On the other
hand in the case of an executory contract the
possession of the transferee until the date of
registration of the conveyance is permissive or
derivative and in law is deemed to be on behalf of
the owner himself. The correctness of the decision
in Annamali v. Muthiah cannot, therefore, be doubted.”
[Emphasis Supplied]
24. In the present case, it is not disputed that the original
agreement that was entered into by the predecessor in
interest of the appellants is an Agreement to Sell dated
23.11.1949 (Ex.D1) between the said Sri. C.B.Oakley and
Sri. Ponnusawamy Modaliar and Sri. Narayanaswamy for a
sale consideration in a sum of Rs.1,000/- and only a sum of
Rs.700/- was paid. Even at the time of putting the
predecessor in interest in possession of the suit schedule
property, the sale deed was not executed nor was any
agreement to perfect the title executed to enable a transfer
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of rights. However, on the other hand, after the demise of
said Sri. C.B.Okaley, Sri. Havard Oakley, his brother and
executor of the Will executed a registered sale deed in
favour of B.H.Peacock who himself executed a registered
sale deed in favour of B.H.Hanumaiah on 13.12.1958, was
the father of the respondent No.1/plaintiff. The title and
possession of the respondent No.6 was perfected by the
execution of the registered Gift Deed.
25. As stated above, the other question that has been
raised by the appellant / defendant is on limitation. The
issues which are reproduced in paragraph No.8 above
reflect that no ground of limitation was raised by the
respondent No.1/plaintiff in his suit. The issues framed
essentially relate to title of the respondent/plaintiff.
25.1. It is the contention of the appellants/defendants that
the title was adverse to the respondents since the period
when the suit was filed being O.S.No.7123/1980 (filed in
the year 1979 and renumbered). Thus, it is contended that
suit should have been filed within twelve years i.e. by 1982
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and since it was filed in the year 2010, the suit is barred by
limitation.
26. The respondent No.1/plaintiff has on the other hand,
contended that the cause of action had arisen when they
found out about the fraudulent Gift Deed and when the
respondent No.1/plaintiff filed a police complaint with
respect to these fraudulent Gift Deeds on 2/3 March 2010.
27. Thus, it is a case of the respondent No.1/plaintiff that
all along the appellants/defendants did not have any title to
the property and could not have perfected the title by way
of adverse possession.
28. Insofar as the issue relating to limitation in respect of
the alleged fraudulent Gift Deeds is concerned, reliance is
placed on the judgment of the Hon’ble Supreme Court in
Mohd. Noorul Hoda v. Bibi Raifunnisa6. The Supreme
Court, while interpreting Article 59 of the Limitation Act, has
held that a suit for cancellation or setting aside of an
6
(1996) 7 SCC 767
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instrument on the ground of fraud must be instituted within
three years from the date when the facts entitling the
plaintiff to have the instrument cancelled first become
known to him. The Court further clarified that the
expression “person” under Section 31 of the Specific Relief
Act is of wide import and includes even a person claiming
derivative title, and that such person cannot ignore a
subsisting instrument which stands as an obstacle to his
title. It was held that where the plaintiff seeks to avoid an
instrument on the ground of fraud, limitation necessarily
begins from the date of knowledge of such fraud. It is
apposite to set out relevant extract of the Mohd. Noorul’s
case in this regard below:
6. The question, therefore, is as to whether Article 59
or Article 113 of the Schedule to the Act is applicable
to the facts in this case. Article 59 of the Schedule to
the Limitation Act, 1908 had provided inter alia for suits
to set aside decree obtained by fraud. There was no
specific article to set aside a decree on any other ground.
In such a case, the residuary Article 120 in Schedule III
was attracted. The present Article 59 of the Schedule
to the Act will govern any suit to set aside a decree
either on fraud or any other ground. Therefore,
Article 59 would be applicable to any suit to set
aside a decree either on fraud or any other ground.
It is true that Article 59 would be applicable if a person
affected is a party to a decree or an instrument or a
contract. There is no dispute that Article 59 would
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apply to set aside the instrument, decree or contract
between the inter se parties. The question is whether
in case of person claiming title through the party to the
decree or instrument or having knowledge of the
instrument or decree or contract and seeking to avoid the
decree by a specific declaration, whether Article 59 gets
attracted? As stated earlier, Article 59 is a general
provision. In a suit to set aside or cancel an instrument, a
contract or a decree on the ground of fraud, Article 59 is
attracted. The starting point of limitation is the date
of knowledge of the alleged fraud. When the plaintiff
seeks to establish his title to the property which
cannot be established without avoiding the decree
or an instrument that stands as an insurmountable
obstacle in his way which otherwise binds him,
though not a party, the plaintiff necessarily has to
seek a declaration and have that decree, instrument
or contract cancelled or set aside or rescinded.
Section 31 of the Specific Relief Act, 1963 regulates suits
for cancellation of an instrument which lays down that any
person against whom a written instrument is void or
voidable and who has a reasonable apprehension that
such instrument, if left outstanding, may cause him
serious injury, can sue to have it adjudged void or voidable
and the court may in its discretion so adjudge it and order
it to be delivered or cancelled. It would thus be clear
that the word ‘person’ in Section 31 of the Specific
Relief Act is wide enough to encompass a person
seeking derivative title from his seller. It would,
therefore, be clear that if he seeks avoidance of the
instrument, decree or contract and seeks a declaration to
have the decrees set aside or cancelled he is necessarily
bound to lay the suit within three years from the date
when the facts entitling the plaintiff to have the decree set
aside, first became known to him.
[Emphasis Supplied]
28.1. Thus, applying the said ratio, the respondent
No.1/plaintiff’s contention that the cause of action arose
when the fraudulent Gift Deeds came to his knowledge, as
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evidenced by the filing of a police complaint, is in
consonance with Article 59 of the Limitation Act.
29. This Court has also examined the deposition including
examination in chief and additional affidavit of P.W.1 in
support of his contention qua limitation. P.W.1 sets out that
the appellants/defendants had started putting up illegal
construction on the vacant portion of the suit property in
the month of March 2010 and at that time, a police
complaint was lodged with the Bruhath Bengaluru
Mahanagara Palike (BBMP) with respect to the illegal and
unauthorised construction. The appellants/defendants
appeared before Srirampuram Police Station and produced
the Gift Deed dated 22.10.2007 and thereafter, the
respondent No.1/plaintiff obtained copies of the Gift Deeds
from the jurisdictional Sub-Registrar. The relevant extract
of deposition of P.W.1 is set out below:
“14. I submit that being aggrieved by the said order of
dismissal the LRS of late Muthamma filed
R.F.A.No.681/1999 on the file of the Hon’ble High Court of
Karnataka, Bangalore. The Hon’ble High Court of
Karnataka, has passed an order on 7-7-2006 in the said
R.F.A by partly allowing the said R.F.A., thereby the order37
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of attachment passed on 20-2-1973 in O.S.No.486/1973
attaching the suit schedule property was thereby raised.
In the said R.F.A the Hon’ble High Court has made an
observation that in case subsequently, there is any suit;
the parties therein are at liberty to place their contentions.
The order passed by the Hon’ble High Court of Karnataka
in the aforesaid R.F.A. raising the Attachment order
attaching the suit schedule property is advantageous to
the LRS of my father late B.N.Hanumaiah. The said order
is not at all beneficial to the LRS of late Smt. Muthamma.
That being the position, the defendants started putting up
illegal structures in the vacant portion of the suit schedule
property in the month of March 2010. Then immediately,
I had questioned about their illegal construction but
they did not give any reply and therefore, I lodged a
police complaint with respect to their illegal
construction and also complaint to the BBMP with
respect the unauthorized illegal construction. The
jurisdictional police had sent a word to the
defendants and they appeared before the
Sriramapuram Police Station and produced
fabricated alleged Gift Deeds dated 22-10-2007
which were said to have registered in the office of
the Sub-Registrar, Srirampuram, Bangalore and
therefore immediately, I rushed to the office of the
Jurisdictional Sub-Registrar, and found that
defendants 1 and 3 had executed the Gift Deeds in
respect of the suit schedule property in favour of his
son and wife respectively that is defendants 2 and 4
herein.”
[Emphasis Supplied]
29.1. No cross-examination on this aspect was conducted
by the appellants/defendants except for the following:
“29. Smt.Puttalingamma is the first wife of my father.
Nanjundappa is the son of Smt.Puttalingamma. We had
not produced Death extracts of both the persons in earlier38
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proceedings. We obtained certified copies of Death
Certificates immediately after effecting entries in the
concerned register. As per charge sheet and Ex.P62, I
was the complainant in that criminal case. We did
not receive any notice from Sub-registrar office
before lodging complaint. An enquiry was made in
the office of Sub-registrar. There is a record to show
such enquiry held and the charge sheet is filed in
that regard. I am not having copy of record showing the
said enquiry. I have not produced such record in the suit.
It is not true to suggest that no such enquiry was held in
Sub-registrar office. It is not true to suggest that I am
deposing falsely.
[Emphasis Supplied]
29.2. Thus, this contention of the respondent No.1/plaintiff
remained unimpeached.
30. The principles laid down in Rajeev Gupta‘s case
further fortify the respondent No.1/plaintiff’s case both on
limitation and on the legal effect of possession traced to
impugned instruments. The Supreme Court has
emphatically held that the word “first” occurring in Articles
58 and 59 is of determinative significance, and that once
the right to sue first accrues, limitation cannot be postponed
by relying upon subsequent events or continuing
consequences. It was held that where a registered
instrument invades or jeopardises the rights of a party, the
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right to sue crystallises from the date of knowledge of such
instrument, and later acts such as continued possession,
police complaints, or repeated assertions do not furnish a
fresh cause of action. The Court further observed that
possession referable to a registered document is traceable
to such document and, when disputed, cannot be treated as
inherently hostile from its inception. The relevant extract of
Rajeev Gupta‘s case is set out below:
“30. Insertion by the Parliament of the word “first” under
the column ‘Time from which period begins to run’ in
Article 58 is not without a purpose. Such word, which was
not there in the Limitation Act, 1908, has been designedly
used in Article 58 to signify that a suit to obtain declaration
(other than those referred to in Articles 56 and 57) has to
be instituted within three years of ‘when the right to sue
first accrues’. In simpler terms, if cause of action to sue
means accrual of the right for an actionable claim, it is the
moment from which such right first accrues that the clock
of limitation would start ticking. Thus, even though cause
of action for instituting a suit might arise on varied
occasions and/or at different times, what is material and
assumes relevance for computing the period of limitation
under Article 58 is the date when the right to sue first
accrues to the aggrieved suitor. Though dominus litus, a
suitor cannot pick and choose a time for approaching
court. The period of limitation in terms of Article 58 being
3 (three) years, the prescribed period has to be counted
from that date of the right to sue first accruing and the
suit, if not instituted within 3 (three) years therefrom,
would become barred by time.
31. Similarly, under the column ‘Time from which period
begins to run’ in Article 59 providing for a three-year
limitation period for cancellation of an instrument, the
ordainment is that the period will run ‘when the facts
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entitling the plaintiff to have the instrument … cancelled
or set aside … first become known to him’. Any suit
seeking cancellation of a particular instrument as
void or voidable would be governed by Article 59
and, therefore, has to be instituted within 3 (three)
years from date the suitor could be said to
have first derived knowledge of the fact of such an
instrument (which, according to him, is void or
voidable) coming into existence. The word “first” in
Article 59 would ordinarily have the same connotation as
in Article 58.
XXX XXX XXX
35. It is not in dispute that the plaintiffs did have
knowledge – constructive as well as actual – during the
pendency of the second suit or soon thereafter of transfer
of the suit property in favour of the appellants effected by
Ramesh Chand by way of execution of the sale deeds
which were subsequently registered as required by Section
54 of the TP Act. Once the appellants started residing
in the suit property, what crystallised was the
invasion of the plaintiffs’ rights. Their right to the
suit property, if any, was put to clear jeopardy. With
the execution of the sale deeds, subsequently
registered, this was the moment when the right to
sue first accrued to the plaintiffs. In fact, according to
the plaintiffs, Ramesh Chand was proposing to dispose of
the suit property in favour of third parties and such
apprehension of an intended transfer was precisely the
cause of action that was pleaded for institution of the
second suit. In any event, whatever be the relevant date,
i.e., execution of the sale deeds by which Ramesh Chand
conveyed the suit property to the appellants or the date
of taking actual possession of the suit property by the
appellants from Ramesh Chand a few days after execution
of such deeds, it is from such date of knowledge in June,
1992 that the said transfer effectively did invade or
jeopardize the plaintiffs’ interest in respect of the suit
property. Contention of Mr. Gulati, therefore, has
sufficient force that the suit had to be instituted within 3
(three) years, since the title in respect of the suit property
had passed on to the appellants. He is also right in
submitting that the conduct of the plaintiffs does throw
light on how they juggled to overcome the bar of limitation
by seeking a decree for cancellation of the sale deeds,
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which they sought to abandon midway by applying for
amendment; thereafter, again they made an attempt for
insertion of the prayer for declaration, also by way of an
amendment at the appellate stage, which did not
ultimately fructify.”
[Emphasis Supplied]
30.1. Consequently, where the appellants’ possession is
founded upon impugned Gift Deeds and has been
continuously questioned, the same lacks the necessary
hostile animus to ripen into adverse possession, the
respondent No.1/plaintiff’s contention that no title could
have been perfected by adverse possession gains
significance.
31. A similar view has been taken by the Supreme Court in
Mohan Lal v. Mirza Abdul Gaffar,7 wherein it has been
held that possession which originates under an agreement
of sale or other permissive or derivative arrangement
cannot mature into adverse possession unless there is a
clear, unequivocal and hostile repudiation of the true
owner’s title to his knowledge. The Court held that mere
7
(1996) 1 SCC 639
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long or continuous possession, without animus possidendi
and without denial of the true owner’s title, does not satisfy
the legal requirements of adverse possession, and such
possession cannot be construed as hostile in law. The
relevant paragraphs are extracted below:
“4. As regards the first plea, it is inconsistent with the
second plea. Having come into possession under the
agreement, he must disclaim his right thereunder
and plead and prove assertion of his independent
hostile adverse possession to the knowledge of the
transferor or his successor in title or interest and that
the latter had acquiesced to his illegal possession during
the entire period of 12 years, i.e., up to completing the
period of his title by prescription nec vi, nec clam, nec
precario. Since the appellant’s claim is founded on Section
53-A, it goes without saying that he admits by implication
that he came into possession of the land lawfully under
the agreement and continued to remain in possession till
date of the suit. Thereby the plea of adverse
possession is not available to the appellant.
5. The question then is whether he is entitled to retain
possession under Section 53-A. It is an admitted fact that
suit for specific performance had been dismissed and
became final. Then the question is whether he is entitled
to retain possession under the agreement. Once he lost
his right under the agreement by dismissal of the
suit, it would be inconsistent and incompatible with
his right to remain in possession under the
agreement.Even otherwise, a transferee can avail of
Section 53-A only as a shield but not as a sword. It
contemplates that where any person contracts to transfer
for consideration any immovable property by writing,
signed by him or on his behalf, from which the terms
necessary to constitute the transfer can be ascertained
with reasonable certainty and the transferee has
performed or is willing to perform his part of the contract,
he would be entitled to retain possession and to continue
in possession which he has already received from the43
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transferor so long as he is willing to perform his part of
the contract. Agreement does not create title or
interest in the property. Since the agreement had met
with dismissal of the suit his willingness to perform his part
of the contract does not arise.
6. Even otherwise, in a suit for possession filed by the
respondent, successor-in-interest of the transferor as a
subsequent purchaser, the earlier transferee must plead
and prove that he is ready and willing to perform his part
of the contract so as to enable him to retain his possession
of the immovable property held under the agreement. The
High Court has pointed out that he has not expressly
pleaded this in the written statement. We have gone
through the written statement. The High Court is right in
its conclusion. Except vaguely denying that he is not ready
and willing to perform his part, he did not specifically plead
it. Under Section 16(c) of Specific Relief Act, 1963, the
plaintiff must plead in the plaint, his readiness and
willingness from the date of the contract till date of the
decree. The plaintiff who seeks enforcement of the
agreement is enjoined to establish the same. Equally,
when the transferee seeks to avail of Section 53-A
to retain possession of the property which he had
under the contract, it would also be incumbent upon
the transferee to plead and prove his readiness and
willingness to perform his part of the contract. He
who comes to equity must do equity. The doctrine of
readiness and willingness is an emphatic way of
expression to establish that the transferee always abides
by the terms of the agreement and is willing to perform
his part of the contract. Part performance, as statutory
right, is conditioned upon the transferee’s
continuous willingness to perform his part of the
contract in terms covenanted thereunder.”
[Emphasis Supplied]
VIII. Conclusion:
32. The appellants/defendants have failed to establish any
such hostile assertion. Earlier litigations instituted by their
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predecessor only sought for protection of possession and
thus negate the plea of adverse possession. The decrees in
those proceedings merely protected possession until
eviction in accordance with law and did not recognise title
in favour of the appellants/defendants or their predecessor.
33. Undisputably, the possession obtained by appellants/
defendants pursuant to an Agreement to Sell, thus the
possession cannot be termed as adverse in terms of the
settled law discussed above.
34. In the absence of proof of adverse possession,
limitation under Article 65 of the Limitation Act cannot be
invoked by the appellants/defendants as has been
discussed above. The cause of action for the respondent
No.1/plaintiff arose only in the year 2010, when hostile acts
were asserted by execution of Gift Deed and attempted
construction. The suit was therefore within limitation.
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35. In view of the aforesaid discussions, the Appeals are
dismissed. Pending applications, if any, stand closed.
Sd/-
(D K SINGH)
JUDGE
Sd/-
(TARA VITASTA GANJU)
JUDGE
YN
List No.: 1 Sl No.: 1
46