Bangalore District Court
Pushpa Bai vs Babu P on 1 April, 2026
KABC010170832011
IN THE COURT OF THE X ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-26).
Dated this the 1st day of April, 2026
Present
Sri Vijaya Kumar Rai, B.Com., LL.B.,
X Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.5226/2011
Plaintiff: Smt.Pushpa Bai
w/o Krishnan
aged about 38 years
r/at No.37, 2nd Block
3rd Main, Sri M.V. Nagar
Opposite to Koshys Hospital
Ramamurthy Nagar
Bengaluru-560 016.
(By Sri P.N. Hegde, Adv.)
Vs.
Defendant: Mr.P. Babu
s/o Late Padmanabha
r/at No.671, "Premnivas"
Grape Garden
St.Thomas Town Post
Kammanahalli
Bengaluru-560 005.
(By Sri H.R. Ananthakrishnamurthy, Adv.)
Date of institution of the suit 21.07.2011
Nature of the suit For declaration regarding the
sale deed, possession and
permanent injunction
Date of the commencement 25.05.2012
of recording of evidence
2 O.S.No.5226/2011
Date on which the judgment 01.04.2026
Pronounced
Total duration Years Months Days
14 08 10
(Vijaya Kumar Rai)
X Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This suit is filed by the plaintiff to declare that the sale deed
dated 31.03.2011 executed in the name of the defendant in
respect of the suit schedule property is null and void and for
possession of the suit schedule property along with a relief of
permanent prohibitory injunction.
2. The case of the plaintiff in brief is as hereunder:-
The suit schedule property measuring east-west 17 feet
and north-south 27 feet in all measuring 459 sq.ft. was originally
belonged to one Mr.V.Sachithanandam. Said Sri V.
Sachithanandam through his GPA holder Smt.Godhavari, who is
none other than his daughter, has sold the suit schedule property
in favour of Mr.N. Sudhakar through the registered sale deed
dated 08.04.1999 through the GPA dated 27.03.1999. Pursuant
to the above sale transaction, all the property documents were
transferred in the name of N. Sudhakar. The defendant, who had
no right, title or interest over the suit schedule property, started
3 O.S.No.5226/2011interfering with the possession and occupation of Mr.N.
Sudhakar, who is none other than the brother of the plaintiff. The
defendant was very powerful both politically and financially and
therefore her brother Sudhakar could not take any action against
him who has adopted a conciliation and mediation process.
Taking advantage of the condition and helplessness of Mr.N.
Sudhakar during the year 2001, the defendant in a clandestine
manner broke open the door of the house when Sudhakar was
out of town and took over the possession. He has even inducted
his henchman in the suit schedule property. All the efforts of
Sudhakar to convince him and eject him went in vain. When this
being the state of affairs, Mr.N.Sudhakar was forced to go back to
his native at Krishnagiri in order to take care of his ailing
daughter. However, before leaving Bangalore, Mr.N.Sudhakar
has bequeathed the schedule property in favour of the present
plaintiff through a registered gift deed dated 12.08.2010. Before
that Mr.Sudhakar had paid the tax for the period from 2004 to
2009. Pursuant to the gift deed, the plaintiff become the owner of
the suit schedule property. All her attempts to persuade the
defendant to vacate and handover the suit schedule property
went in vain and the defendant is illegally squatting over the suit
schedule property and therefore when she has decided to
approach this court applied for the certified copies of the
4 O.S.No.5226/2011documents. During that time, she noticed that defendant has
purported to have purchased the suit schedule property through a
registered sale deed dated 31.03.2011 on the basis of a
purported power of attorney said to be executed in favour of M.
Ramaiah by V. Sachithanandam.
The plaintiff has also pleaded that when she contacted
Mr.V.Sachithanandam through her brother Sudhakar, he had
revealed that he has not executed any power of attorney in favour
of M. Ramaiah and thereby the defendant in order to defraud the
plaintiff created the documents. The plaintiff, being the absolute
owner of the suit property, she is entitled to seek the declaration
that the sale deed dated 31.03.2011 executed in favour of the
defendant is null and void and entitled for possession.
3. Pursuant to the suit summons issued by this Court,
the defendant entered appearance and filed his written statement.
In the written statement filed by the defendant, he has denied the
right, title and interest secured by the plaintiff in respect of the suit
schedule property. He has even denied the power of attorney
executed by Mr.V.Sachithanandam in favour of Godhavari and
the sale deed executed by her in favour of N. Sudhakar. He has
also denied the execution the gift deed by Sudhakar in favour of
the plaintiff. The defendant has contended that the suit is barred
5 O.S.No.5226/2011
by limitation and the suit is not properly valued and the court fee
paid is insufficient.
The contention of the defendant is that he is the absolute
owner of the suit schedule property having been purchased it
through a sale agreement dated 05.12.1998 executed by
Mr.V.Sachithanandam in his favour and delivered the possession
of the suit schedule property to him along with delivery of all
original documents. Thereafter, the khatha was transferred in the
name of Mr.V.Sachithanandam and he has executed the sale
deed in favour of this defendant through the power of attorney
holder and thereby the defendant became owner in possession of
the suit schedule property. He has pleaded that one Sri
Vishwanathan was the tenant under Mr.V.Sachithanandam in the
first floor of the schedule property and at the time of vacating the
property, he has handed over the possession to this defendant as
per the instructions of Mr.V.Sachithanandam and this defendant
has paid advance amount of ₹45,000/- to said Vishwanathan. The
possession of the plaintiff or her brother over the suit schedule
property at any point of time is denied by the defendant.
After conclusion of the evidence when the case is set for
arguments, the defendant has filed an application under Order VI
Rule 17 CPC for amending the written statement wherein he was
intended to take up the defence of adverse possession. Said
6 O.S.No.5226/2011
application filed by the defendant in I.A.No.7 came to be
dismissed by this Court in the order dated 18.10.2025. As against
it, the defendant filed Writ Petition No.33963/2025 (GM-CPC)
before the Hon’ble High Court wherein the defendant has
admitted the title and ownership of the plaintiff in respect of the
suit schedule property. On such admission, the Hon’ble High
Court has permitted to amend the written statement. In the
amendment, the defendant has taken up the additional contention
that he has been in actual and factual possession of the suit
schedule property from 05.12.1998 to the knowledge of the
plaintiff and her predecessor in title. He has also pleaded that the
possession of the defendant over the suit schedule property is
hostile, continuous and with the knowledge of the plaintiff and her
predecessor in title and therefore, the defendant has perfected
his title over the suit schedule property by adverse possession.
4. Considering the above pleadings, this Court has
framed the following issues and additional issues:-
ISSUES
1) Deleted.
2) Whether the plaintiff proves that said Sudhakar
had become owner and possessor of suit
schedule property by virtue of sale deed dated
08.04.1999?
7 O.S.No.5226/2011
3) Whether the plaintiff proves that the defendant
has illegally took possession of suit property in
the year 2001 by breaking open the lock?
4) Deleted.
5) Whether the defendant proves that
Sachithanandam entered into agreement of sale
on 05.12.1998 in respect of schedule property
and handed over possession of suit property in
his favour?
6) Whether the defendant proves that
Sachithanandam executed sale deed dated
31.03.2011 in his favour through GPA holder?
7) Deleted.
8) Whether the plaintiff proves that the sale deed
dated 31.03.2011 is null and void and not binding
upon her?
9) Whether the suit of the plaintiff is barred by
limitation?
10) Whether the plaintiff is entitled for recovery of
possession of suit property?
11) Whether the plaintiff is entitled for relief of
permanent injunction?
12) What order or decree?
ADDITIONAL ISSUE
1) Whether the defendant proves that he has
perfected title over the suit schedule property by
adverse possession?
8 O.S.No.5226/2011
5. In support of case of the plaintiff, plaintiff is examined
as PW1, Mr.V.Sachithanandam is examined as PW2. One K.
Ramakrishnan an expert from Truth Labs, Chennai is examined
as P.W.3. Ex.P.1 to 13 are marked. On behalf of the defendant,
he himself is examined as DW1 and one R. Narayanappa is
examined as DW2 and documents Ex.D.1 to 29 are marked.
6. Heard the arguments.
7. Findings of this Court on the above issues are as
hereunder:-
Issue No.1 : Deleted.
Issue No.2 : Partly in the affirmative
Issue No.3 : In the negative
Issue No.4 : Deleted
Issue No.5 : In the affirmative
Issue No.6 : In the affirmative
Issue No.7 : Deleted
Issue No.8 : In the affirmative
Issue No.9 : In the negative
Issue No.10:- In the affirmative
Issue No.11:- In the negative
Addl. Issue No.1:- In the negative
Issue No.12:- As per final order, for the following:
9 O.S.No.5226/2011
REASONS
8. Issue Nos.3 & 5:- The plaintiff has instituted this suit
for recovery of possession of the suit schedule property from the
defendant on the ground that she became the owner of the suit
schedule property on the basis of the gift deed executed by her
brother N.Sudhakar on 12.08.2010. It is her further case that prior
to that her brother N.Sudhakar purchased the suit schedule
property through the sale deed dated 08.04.1999 from the
erstwhile owner V. Sachithanandam. The contention of the
plaintiff is that after the purchase of the suit schedule property by
N.Sudhakar, during his absence in the year 2001, the defendant
broke open the door lock of the suit schedule house and forcibly
took possession of the suit schedule property. On the other hand,
the contention of the defendant is that the erstwhile owner of the
suit schedule property Mr.V.Sachithanandam entered into
agreement of sale dated 05.12.1998 with him in respect of the
suit schedule property and handed over the possession of the suit
schedule property to him on 05.12.1998 itself and the alleged
dispossession in the year 2001 is totally false.
9. The specific case of the plaintiff is that her brother who
was the owner of the suit schedule property was dispossessed by
the defendant during the year 2001. The date or month of
dispossession is not disclosed. The plaintiff who is examined as
10 O.S.No.5226/2011
PW1, has admitted in the cross-examination that she was not
present at the time of dispossession. Her brother N.Sudhakar is
also not examined to prove the alleged dispossession in the year
2001. The plaintiff has produced the sale deed executed by
erstwhile owner Sachithanandam in favour of Sudhakar as per
Ex.P1 recites that the possession was delivered to Sudhakar on
the date of the sale deed itself. But, the said deed was not
executed from V. Sachithanandam. It was executed by his wife
Smt.Godhavari. Said Smt.Godhavari is also not examined. In the
cross-examination of PW1, she has categorically admitted that
Sachithanandam and Godhavari never resided in the suit
schedule property. She has also admitted that after one
Vishwanath, who was a tenant in the suit schedule property,
vacated the suit schedule property, the defendant was residing in
it. In this regard, the specific portion of the admission given by
PW1 in the cross-examination dated 08.10.2015 is extracted for
reference.
“It is true to suggest that said
Sachithanandam and Godhavari never resided in
the property. I do not know one Vishwanath
residing in the first floor of the suit schedule
property as a tenant and handed over his portion
to the defendant as per say of Sachithanandam. It
is true to suggest that defendant was residing in
11 O.S.No.5226/2011
the suit schedule property after vacating
Vishwanath”.
10. The erstwhile owner Sachithanandam is examined as
PW2. In the course of his cross-examination, he has also
admitted that when Vishwanath had vacated the house, the
defendant had refunded the advance amount in favour of the
tenant Vishwanath. He has further admitted that when he was
residing at Bengaluru, the defendant was in possession of the
property. He has pleaded his ignorance to the suggestion that
Sudhakar was never in possession of the suit schedule property
at any point of time. In this regard, the specific portion of evidence
given by PW2 Sachithanandam is extracted for reference:-
“5. I do not remember the exact area of the
schedule property. It is true to suggest that in the
schedule property there is a construction in
ground floor and first floor. It is not true to suggest
that at the time of execution of agreement of sale
by me in favour of Babu, Vishwanath was the
tenant in the first floor. (Witness states that he
had not executed the agreement.) I do not know
who is Vishwanath. I do not know the Vishwanath
was tenant in first floor. The witness volunteers
that the person who was working in P&T was
residing in the first floor as a tenant. I do not
know the said tenant is Vishwanath. I do not
remember the total amount of advance received
from such tenant including the rate of rent taken
12 O.S.No.5226/2011by me. I do not know the Vishwanath paying the
rent to Babu. It may me true that when
Vishwanath vacated the house, Babu refunded
the advance amount”. ….
10. I do not remember that when I have
given my last visit to schedule property. It may be
true, when I was residing in Bangalore, Babu
was in possession of schedule property
………………
11. I do not know that Sudhakar never is
in possession of schedule property at any
point of time”.
11. The above admission of PW2 strongly probablises that
before he executed the sale deed in favour of Sudhakar, one
Vishwanath was a tenant in the suit schedule property and when
he was vacated the suit schedule property the defendant has only
refunded the security deposit to the tenant and later defendant
occupied it. In support of this elicitation made from PW1 & 2, the
defendant has also produced receipt issued by the tenant
Vishwanath at Ex.D14, which probablises that the defendant has
refunded the security deposit to the tenant. The defendant has
also produced the rental agreement executed in between
V.Sachithanandam and Vishwanathan on 01.03.1996. The
plaintiff has not pleaded or proved as to when said Vishwanath
has vacated the premises so as to deliver possession in favour of
13 O.S.No.5226/2011
her brother Sudhakar. Therefore, the evidence strongly
probablises that one Vishwanath was a tenant under the original
owner Sachithanandam from the year 1996 itself and when he
had vacated the premises, the defendant occupied the suit
schedule premises by repaying the security deposit to
Vishwanathan.
12. It is also necessary to point that the defendant has
produced the sale agreement dated 05.12.1998 executed by
Sachithanandam in favour of the defendant in respect of the suit
schedule property. This is an unregistered agreement. The
recitals of the sale agreement produced at Ex.D2 shows that the
possession of the suit schedule property was delivered to the
defendant on 05.12.1998 along with the original title deeds.
Though this is an unregistered agreement, it was executed prior
to 24.09.2001 and therefore non-registration of the sale
agreement will not be a bar to recognize the delivery of
possession. Though the execution of the sale agreement is
disputed by the plaintiff and Sachithanandam, the original title
deeds pertaining to the suit schedule property including the sale
deed dated 03.03.1993 executed by the vendors of
Sachithanandam in his favour is produced by the defendant at
Ex.D.1. The possession of original title deed with the defendant
supports the execution of the agreement of sale dated
14 O.S.No.5226/2011
05.12.1998. Therefore, the evidence on record shows that earlier
Sachithanandam has let out the suit premises in favour of tenant
Vishwanathan and after he vacated the premises, the defendant
occupied it. The evidence is also sufficient to show that sale
agreement was also executed by Sachithanandam in favour of
defendant on 05.12.1998 as per Ex.D2. There is no convincing
evidence on record to show that Sudhakar was given actual
physical possession of the suit schedule property at any point of
time and he was dispossessed from the suit schedule property by
the defendant. If Sudhakar was dispossessed from the suit
schedule property as alleged by the plaintiff, certainly he would
have lodged the complaint or would have reacted strongly. Under
these circumstances, the plaintiff has failed to prove that the
defendant has illegally took possession of the suit schedule
property in the year 2001 by breaking open the door lock. The
defendant has able to probablise that Sachithanandam had
entered into a sale agreement dated 05.12.1998 in respect of the
suit schedule property in favour of the defendant and thereaftter
the tenant Vishwanath who was in occupation of the suit schedule
property delivered the possession of the suit schedule property to
the defendant. The defendant has produced the letter issued by
the tenant while vacating the suit property on 18.01.1999 as per
Ex.D.14. There are no reasons to disbelieve these documents.
15 O.S.No.5226/2011
Therefore, though there is no evidence to show that the
possession of the suit schedule property was delivered to the
defendant on 05.12.1998 i.e., on the date of agreement of sale,
there is evidence to show that the possession was delivered
subsequently to the defendant and not to N. Sudhakar.
Consequently, issue No.3 is answered in the negative and issue
No.5 is answered partly in the affirmative.
13. Issue No.6:- The defendant has taken up a contention
that Sachithanandam had executed a sale deed dated
31.03.2011 in his favour through his GPA holder. In support of the
said contention, the defendant has produced the agreement of
sale executed by Sachithanandam at Ex.D2 for which the court
has already recorded finding while answering issue No.5. The
defendant has produced the sale deed dated 31.03.2011
executed by the GPA holder of Sachithanandam one Mr Ramaiah
at Ex.D6. the power of attorney executed by Sachithanandam in
favour of Ramaiah is also produced at Ex.D3. Though the
execution of the Ex.D3 GPA by Sachithanandam in favour of
Ramaiah is disputed by the plaintiff as well as Sachithanandam,
the evidence given by PW2 Sachithanandam in this regard is not
found trustworthy. The reason is that he had handed over the
original title deed of the suit schedule property in favour of
defendant which is produced by the defendant at Ex.D1. The
16 O.S.No.5226/2011
tenant who was in occupation of the suit schedule property was
also vacated by the defendant by paying his security deposit. If
the signature of Sachithanandam was forged in Ex.D3, he would
have reacted strongly. Therefore, there is sufficient evidence on
record to hold that Sachithanandam had executed a sale deed
dated 31.03.2011 in favour of the defendant through his GPA
holder Ramaiah. Hence, issue No.6 is answered in the
affirmative.
14. Issue No.9 and Additional Issue No.1:- The plaintiff
has sought mainly two reliefs. The first relief is to declare that the
sale deed dated 31.03.2011 registered in the name of the
defendant in respect of the suit schedule property said to be
executed by original owner Sachithanandam through his GPA
holder Ramaiah is null and void. The second relief is for the
possession of the suit schedule property from the defendant. The
sale deed challenged by the plaintiff is dated 31.03.2011 and the
present suit came to be filed on 21.07.2011. Therefore, there
cannot be any dispute that the first relief sought in respect of the
sale deed dated 31.03.2011 is well within the period of limitation.
The contention of the defendant is that plaintiff’s predecessor in
title Mr.N. Sudhakar claiming to have purchased the suit schedule
property through the sale deed 08.04.1999 did not file the suit
and the present suit instituted by the plaintiff on 21.07.2011 is
17 O.S.No.5226/2011
after filed 12 years and 4 months and therefore the suit is totally
barred by limitation. While the learned counsel appearing for the
defendant has contended that the relief sought in the present suit
is covered under Article 58 and if not under Article 64 of the
Limitation Act, the learned counsel appearing for the plaintiff has
contended that the relief sought in the present suit is covered
under Article 65 of the Limitation Act 1963. Therefore, at the first
instance, the Court is required to record a finding as to the
applicability of the relevant article in respect of the reliefs sought
in the suit.
15. Admittedly in the present suit, the plaintiff has not
sought the relief of declaration of title. Article 64 of the Limitation
Act 1963 is in respect of the recovery of possession based on the
previous possession and not on the title. Article 65 is for
possession based on title. The question for consideration is
whether the present suit can be considered as a suit based on
previous possession or based on title. While answering issue
No.3 & 5, this court has held that the plaintiff has failed to prove
that late Sudhakar was dispossessed from the suit schedule
property. Therefore, the suit cannot be based on previous
possession within the ambit of Article 64 of the Limitation Act
1963.
18 O.S.No.5226/2011
16. As stated above, in the present case, the plaintiff has
not sought the relief of declaration of title. But, when the case was
in the stage of arguments, the defendant has filed an application
under Order VI Rule 17 CPC in I.A.No.7 for amending the written
statement and thereby to plead the defence of adverse
possession which came to be dismissed by this court in the order
dated 18.10.2025. As against it, the defendant approached the
Hon’ble High Court by filing Writ Petition No.33963/2025 (GM-
CPC) and during the pendency of the proceedings before the
Hon’ble High Court Court, the defendant has filed a memo before
the Hon’ble High Court admitting the title of the plaintiff over the
suit schedule property. This is specifically recorded by the
Hon’ble High Court Court in the order dated 4 th December 2025
as hereunder:-
“After substantial arguments were
addressed by learned counsels for parties,
learned counsel for petitioner- defendant filed a
memo, which reads as under:
“It is repsectfully submitted that the
p/defendant admitting the ownerhsip of the
schedule property claimed by the
plaintiff/respondent without prejudice to the legal
right to claim adverse possession. The memo
may kindly be taken on record, in the interest of
justice”.
19 O.S.No.5226/2011
11. The petitioner- defendant files a memo,
wherein he has admitted the ownership of the
schedule property as claimed by the plaintiff
without prejudice to the legal right to claim
adverse possession”.
17. Pursuant to the Memo filed as above and the
admission of the title of the plaintiff by the defendant , the writ
petition filed by the defendant came to be allowed and he is
permitted to amend the written statement and plead the defence
of adverse possession. The specific observation made by the
Hon’ble High Court in WP No.33963/2025 (GM-CPC) dated
04.12.2025 is extracted for ready reference:-
“i. This petition is allowed;
ii. The impugned order dated 18.10.2025
passed on I.A.No.VII in O.S.No.5226/2011 by X
Additional City Civil and Sessions Judge,
Bengaluru is hereby set aside. Consequently,
I.A.No.VII is allowed;
iii. The petitioner-defendant is permitted to
carry out the amendment as sought for in
I.A.No.VII;
iv. It is needless to mention that the
petitioner-defendant, in pursuance to the filing of
this memo, categorically admits the ownership of
the respondent-plaintiff over the suit schedule
property”.
20 O.S.No.5226/2011
18. In view of the above admission of the defendant about
the title of the plaintiff, whether this suit can be considered as a
suit based on title so as to fall within the ambit of Article 65 of
Limitation Act 1963 is a point for consideration. In this regard
learned counsel appearing for the plaintiff has strongly placed
reliance on the decision of the Hon’ble Supreme Court rendered
in the case of Annakili v/s A.Vedanayagam and others
(2007)14 SCC 308, wherein the Hon’ble Supreme Court has
clarified that when the title of the plaintiff is established or already
adjudicated, it is not obligatory on the part of the plaintiff who
seeks possession to file a suit for declaration of title also. The
Hon’ble Supreme Court has further observed that if the title of the
plaintiff was already adjudicated, the suit filed for recovery of
possession shall be treated as a suit based on title within the
meaning of Article 65 of the Limitation Act 1963. Therefore, in
para No.23 of the said judgement, the Hon’ble Supreme Court
has observed as hereunder:-
“We cannot accept the submission of
Mr.Dayan Krishnan that it was obligatory on the
part of the respondent-plaintiffs seeking possession
to file a suit for declaration of their title also. As the
title of the respondents in the suit property had
already been adjudicated upon, a suit for recovery
of possession on the basis of the said title attracted
Article 65 of the Schedule appended to the
21 O.S.No.5226/2011
Limitation Act, 1963. In terms of the said provision,
it was for the appellant-defendant to show that she
and her predecessor had been in possession of the
suit property on the basis of the hostile title and as
a result whereof the title of the respondent-plaintiffs
stood extinguished”.
In view of the above ratio of the Hon’ble Supreme Court,
though the plaintiff has not sought the relief of declaration of title
as the defendant has categorically admitted the title of the plaintiff
over the suit schedule property, the suit filed for recovery of
possession shall be construed as a suit based on title and
therefore this court holds that this is a suit for recovery of
possession based on title within the meaning and falls within the
scope of Article 65 of Limitation Act 1963.
19. The plaintiff has proved and it is admitted by the
defendant that the plaintiff is the owner of the suit schedule
property. Under Article 142 of Old Limitation Act for any suit for
recovery of possession on the basis of the title, the plaintiff was
required not only to prove the title, but also she had to prove that
she was in possession of the property within 12 years of the date
of the institution of the suit. But, this position is changed by the
introduction of Article 65 of the Limitation Act 1963 and now when
a suit is based on title for possession, once the title is
established, unless the defendant proves adverse possession,
22 O.S.No.5226/2011
the plaintiff cannot be non-suited. This is clarified by the Hon’ble
Supreme Court in the case of Indira v/s Armugam and another
(1998)1 SCC 614 and also in the case of Saroop Singh v/s Bantu
and others (2005)8 SCC 330. Hence, though while answering
issue No.3, this court has held that the plaintiff has failed to prove
the dispossession of her predecessor in title, it will not affect the
right of the plaintiff to seek possession of the property unless the
defendant is able to establish adverse possession over the suit
schedule property. Hence, even if it is considered that by virtue of
the sale deed dated 08.04.1999, the predecessor in title of the
plaintiff was not put in possession of the suit schedule property,
when the plaintiff has able to establish her title over the suit
schedule property, the entire burden is on the defendant to prove
the adverse possession.
20. Learned counsel appearing for the defendant has
vehemently contended that when the plaintiff is relying upon the
sale deed dated 08.04.1999 of her predecessor in title and as the
suit came to be filed after 12 years without having possession at
any point of time, the suit itself is barred by limitation. But, when
the suit filed for possession is based on title, the period of
limitation of 12 years begins to run not from the date of the sale
deed. It is from the date when the possession of the defendant
becomes adverse to the plaintiff. Therefore, irrespective of the
23 O.S.No.5226/2011
absence of delivery of possession either to the plaintiff or her
predecessor in title, when she is able to establish her title, she is
entitled to sue for recovery of possession without any time limit.
The only defence available to the defendant is to prove the
adverse possession. Hence, the suit filed by the plaintiff cannot
be considered as barred by limitation unless the defendant is able
to prove adverse possession over the suit schedule property.
21. Adverse possession is a special defence. It is required
to be pleaded and proved strictly. It is well settled law from catena
of decisions including from the decision of Hon’ble Supreme
Court rendered in the case of Ravinder Kaur Grewal and others
v/s Manjit Kaur and others (2019)8 SCC 729, the possession,
however, for any length of time will not automatically partake the
character of adverse possession, unless the necessary
ingredients are established. It is also well settled law that the
party who claims adverse possession is required to prove that
when he came into possession of the property, when the
possession becomes adverse by establishing that the possession
is adequate in continuity, adequate in publicity adverse to the
owner in denial of the title of the owner to his knowledge, visible,
notorious and peaceful. In this regard, in the above decision in
para No.23 the Hon’ble Supreme Court by relying upon its
previous decision rendered in the case of Karnataka Board of
24 O.S.No.5226/2011
Work v/s Union of India (2004)10 SCC 779 held that a person
who is trying to defeat the rights of true owner has no equities in
his favour and heavy burden lies on him to clearly plead and
establish all facts necessary to establish his adverse possession
in the following words:-
“30. In Karnataka Board of Wakf, the law was
stated, thus:(SCCp.785,para11)
’11. In the eye of the law, an owner would be
deemed to be in possession of a property so long as
there is no intrusion. Non-use of the property by the
owner even for a long time won’t affect his title. But
the position will be altered when another person
takes possession of the property and asserts a right
over it. Adverse possession is a hostile possession
by clearly asserting hostile title in denial of the title of
the true owner. It is a well-settled principle that a
party claiming adverse possession must prove that
his possession is ‘nec vi, nec clam, nec precario’,
that is, peaceful, open and continuous. The
possession must be adequate in continuity, in
publicity, and in extent to show that their possession
is adverse to the true owner. It must start with a
wrongful disposition of the rightful owner and be
actual, visible, exclusive, hostile and continued over
the statutory period. (See S.M. Karim v. Bibi Sakina,
Parsinni v. Sukhi and D.N. Venkatarayappa v. State
of Karnataka). Physical fact of exclusive possession
and the animus possidendi to hold as owner in
exclusion to the actual owner are the most important
25 O.S.No.5226/2011factors that are to be accounted in case of this
nature. Plea of adverse possession is not a pure
question of law but a blended one of fact and law.
Therefore, a person who claims adverse possession
should show: (a) on what date he came into
possession, (b) what was the nature of his
possession, (c) whether the factum of possession
was known to the other party, (d) how long his
possession has continued, and (e) his possession
was open and undisturbed. A person pleading
adverse possession has no equities in his favour.
Since he is trying to defeat the rights of the true
owner, it is for him to clearly plead and establish
all facts necessary to establish his adverse
possession’ “.
22. No doubt in the present case, the defendant after the
completion of the evidence amended the written statement and
pleaded the defence of adverse possession by incorporating
paras No.15(a) in the written statement as hereunder:-
“Without prejudice to the submission made
aforesaid and in the alternative it is respectfully
submitted that this defendant has been in actual
and factual possession of the properties
described in the schedule to the plaint from
05.12.1998 to the knowledge of the plaintiff and
her predecessors in title. The possession of the
defendant is upon hostile and continuous of the
knowledge of the plaintiff and her predecessors in
title. Nec vi, nec clam, nec precario are made out.
26 O.S.No.5226/2011
The defendant is perfected title as adverse
possession”.
23. In the previous paragraphs of the written statement, the
defendant has denied the title of the plaintiff. Further, the
incorporated amendment commences with a word ‘without
prejudice to the submission made aforesaid and in the
alternative’. The defence raised in the first portion of the written
statement is inconsistent with the incorporated amended portion
of the written statement in para No.15(a). Learned counsel
appearing for the plaintiff has taken up a contention that these
two versions of defences are mutually destructive. It is important
to note that possession of the defendant may be for whatever
long period will not automatically partake the character of adverse
possession until the possession become adverse. Therefore, in a
case of this nature when the defendant pleads his adverse
possession, it is not sufficient to merely plead that the possession
was adverse. The defendant is expected to plead on which date
or on happening of event the possession becomes adverse. In
the present case, the original owner of the property has executed
a sale agreement in favour of the defendant on 05.12.1998 as per
Ex.D2. Though in the agreement, there is a recital that the
possession was delivered on 05.12.1998, the Ex.D14 letter
produced by the defendant shows that a tenant was in occupation
27 O.S.No.5226/2011
of it by name Vishwanathan. Ex.D14 shows that the possession
was delivered to him on 18.01.1999 and not on the date of the
sale agreement. In view of this discrepancy the defendant has not
pleaded the date or month as to when exactly he occupied the
suit schedule property. Further, it is also necessary to note that
even if the defendant had occupied the suit schedule property on
18.01.1999 as shown in Ex.D14, as on 18.01.1999, the plaintiff or
her predecessor was not the owner of the suit schedule property.
The predecessor in title of the plaintiff had acquired title over the
suit schedule property only through the sale deed dated
08.04.1999. It is also necessary to note that subsequently the
defendant has obtained the sale deed pursuant to Ex.D2 sale
agreement on 31.03.2011 as per Ex.D6. In Ex.D6, there is a
specific recital that the actual physical possession of the suit
schedule property was delivered to him as on this sale deed
dated 31.03.2011. Again, there is inconsistency in the documents
produced by the defendant as to when he exactly the defendant
came into possession of the suit schedule property. Such being
the case, the defendant should have pleaded as to from which
date or on happening of which event the possession become
adverse to calculate the period of 12 years. This is not done by
the defendant. This is one aspect.
28 O.S.No.5226/2011
24. During the course of arguments, the court had
expressed a doubt as to whether the date of the execution of the
sale deed in favour of the predecessor in title of the plaintiff on
08.04.1999 can be considered as a date of knowledge of the
predecessor in title of the plaintiff about the adverse possession
of the defendant. In this regard, learned counsel appearing for the
plaintiff has strongly placed reliance on the decision of the
Hon’ble Supreme Court rendered in the case of Uttam Chand
(Dead) by LRs v/s Nathu Ram (Dead) by Lrs (2020)11 SCC 263
wherein the plaintiff had purchased the property in a public
auction on 21.03.1964 and sale certificate was issued to him on
04.01.1965. He had instituted a suit for possession on
17.02.1979, alleging that the defendants are in unauthorised
occupation of the property. In the said suit, though the court had
recorded a finding that the defendant who was in possession of
the suit schedule property even prior to the date of public auction,
still the Hon’ble Supreme Court has observed that the period of
limitation under Article 65 of Limitation Act 1963 cannot start from
the date of the purchase of the suit property. The Hon’ble
Supreme Court has categorically observed that mere possession
of land however long it may be would not ripe into possessory
title, unless the possessor has animus possidendi to hold the land
adverse to the title of the true owner and therefore, the assertion
29 O.S.No.5226/2011
of the title must be clear and uneqivocal. In a similar case, the
Hon’ble High Court of Chhattisgarh, Bilaspur in the case of
Radheshyam Pathak (dead) through legal representatives v/s
Smt.Usha Mishra and others 2021 SCC OnLine Chhattisgarh
2157 relied upon by the learned counsel appearing for the plaintiff
also negated the contention of the party that the suit should have
been filed within 12 years from the date of the sale deed holding
that when the plaintiff has proved his title over the suit schedule
property, it was for the defendant to establish the plea of adverse
possession which they have half heartedly taken and did not
plead the essential ingredients of possession in the following
words:-
“15. The plaintiff’s suit was for recovery of
possession based on title and the plaintiff has
proved his title as held by the trial Court and duly
affirmed by the first appellate Court. According to
Article 65 of the Limitation Act, 1963, as noticed
herein-above, once the plaintiff proves his title then
the defendant has to plead and establish the plea
of adverse possession, but in this case, the
defendants have asserted that they are title
holders and in case they are not found to be title
holders, they have perfected their title by way of
adverse possession. Plea of title and adverse
possession, both, are mutually destructive plea
and inconsistent as well. Therefore, the
30 O.S.No.5226/2011defendants cannot be permitted to raise mutually
destructive plea. However, since the plaintiff has
claimed and proved his title over the suit house as
held by both the Courts below, it was incumbent
on the part of the defendants to plead and
establish the plea of adverse possession which
they have neither seriously pleaded not
established.
16. The first appellate Court without noticing
the provisions contained in Article 65 of the
Limitation Act, 1963, came to a wholly erroneous
finding that suit ought to have been filed within 12
years from 26.11.1976 (Ex.P.1) i.e., the date when
the sale deed was executed by the erstwhile seller
in favour of the plaintiff. Once the plaintiff has
proved title over the suit land, it was for the
defendants to plead and establish the plea of
adverse possession which they have halfheartedly
taken and did not plead the essential ingredients of
adverse possession that are nec vi, nec clam, nec
precario and failed to establish the same, yet the
first appellate Court held that the suit is barred by
limitation”.
25. It is settled by the catena of legal precedents that
animus possidendi to hold the property adverse to the title of the
true owner must be shown to exist at the commencement of the
possession. The starting point of limitation to take shelter under
Article 65 of the Limitation Act to a contender of adverse
31 O.S.No.5226/2011
possession does not commence from the date when the right of
ownership arises to the plaintiff, but only commences from the
date the defendant’s possession become adverse. Therefore, in
the decision Hon’ble Supreme Court rendered in the case of
Annakili v/s A. Vedanayagam and others (2007)14 SCC 308
referred to above, the Hon’ble Supreme Court has held as
hereunder:-
“Possessor must have animus possidendi
and hold the land adverse to the title of the true
owner. For the said purpose, not only animus
possidendi must be shown to exist, but the same
must be shown to exist at the commencement of
the possession. He must continue in the said
capacity for the period prescribed under the
Limitation Act. Mere long possession, it is trite, for
a period of more than 12 years without anything
more does not ripen into a title.
25. In Saroop Singh vs Banto in which one
of us was a member, this Court held: (SCC p.340,
paras 29-30)
“29. In terms of Article 65 the starting point
of limitation does not commence from the date
when the right of ownership arises to the plaintiff
but commences from the date the defendant’s
possession becomes adverse. (See Vasantiben
Prahladji Nayak vs. Somnath Muljibhai Nayak).
30. ‘Animus Possidendi’ is one of the
ingredients of adverse possession. Unless the
32 O.S.No.5226/2011person possessing the land has a requisite
animus the period for prescription does not
commence”.
26. The above legal position stresses a most important
ingradient of animus possidendi. In the written statement, the
defendant has not specifically pleaded how and when his
possession become adverse. It is also necessary to point out that
it is the specific contention of the plaintiff that her predecessor in
title had repeatedly persuaded the defendant to vacate the
premises. It is not the contention of the plaintiff that her
predecessor in title kept quiet in spite of knowing the possession
of the defendant over the suit schedule property. The repeated
insistance and persuasion made by the predecessor in title of the
plaintiff to the defendant to vacate the premises is not denied by
the defendant in specific words. In other words, it is not the
contention of the defendant that the predecessor of the plaintiff in
title has never insisted him or persuaded him to vacate the
premises. Therefore, the evidence on record do not indicate
active silence of the plaintiff or her predecessor in title with regard
to the unauthorised possession of the defendant over the suit
schedule property. Therefore, the possession of the defendant
merely shows that he is in possession of the suit schedule
property from the year 1999 or from the date of the sale deed.
33 O.S.No.5226/2011
There is no sufficient evidence on record to show that the
possession of the defendant has ripened to the status of adverse
possession to the plaintiff or her predecessor in title.
27. Learned counsel appearing for the plaintiff has also
pointed out an important legal aspect with regard to the nature of
the possession of the defendant over the suit schedule property.
As rightly contented by the learned counsel appearing for the
plaintiff the possession claimed by the defendant was on the
basis of the sale agreement dated 05.12.1998. If a person is put
in possession of the immovable property on the basis of a sale
agreement, such possession is in performance of a contract and
governed by Section 53A of Transfer of Property Act. Whether a
person put in possession of the property under an agreement of
sale can claim it as an adverse possession is also an important
legal aspect.
28. As stated above, the sale deed of the defendant dated
31.03.2011 indicates that the actual possession was delivered
only on 31.03.2011. Irrespective of this inconsistency in these two
documents produced by the defendant, when a person put in
possession of the property on part performance, such possession
cannot be considered as an adverse possession unless the
defendant is specifically able to show the conduct of the
defendant was such that he wanted to enjoy the property adverse
34 O.S.No.5226/2011
to the interest of the person who had a title over it. In this regard,
learned counsel appearing for the plaintiff has relied upon the
decision of our Hon’ble High Court rendered in the case of
Moinuddin v/s Chandrappa @ Chandappa and another in RFA
No.7382/2011 (INJ) dated 29.08.2023 by the Kalaburagi Bench of
our Hon’ble High Court of Karnataka wherein the Hon’ble High
Court has relied upon the decision of the Hon’ble Apex Court and
held that plea of adverse possession and retaining the
possession by operation of Section 53A of T.P. Act are
inconsistent with each other and a person who contend that he is
in possession under agreement and if he continues to remain in
possession till the date of the suit, the plea of adverse possession
is not available to him until he has asserted and pointed out the
hostile animus. In this regard, in para No.24 of the judgment the
Hon’ble High Court has held as hereunder:-
“The Apex Court has held that the plea of
adverse possession and retaining the
possession by operation of Section 53A of the
T.P. Act are in consistent with each other and
further held that, when a person contends that
he is in possession under an agreement and
continue to remain in possession till the date of
the suit, the plea of adverse possession is not
available to the defendants unless and until he
has asserted and pointed out and hostile animus
35 O.S.No.5226/2011of retaining possession as an owner after getting
in possession of the land. In the light of the law
declared by the Apex Court and the judgments
of the Co-ordinate Bench of this Court, this
Court is of the considered view that the mere
possession for a long time does not convert the
permissive possession into adverse possession
and accordingly, the first appellate Court was
not justified in reversing the judgment and
decree of the trial Court and the substantial
questions of law framed by this Court need to be
answered in favour of the appellant”.
The above observation of the Hon’ble High Court also
supports the contention of the plaintiff that when the defendant
was put in possession of part performance of the contract he
cannot assert the date of sale agreement as the date to record
the period of adverse possession as required under Article 65 of
Limitation Act 1963.
29. The Hon’ble Supreme Court has repeatedly observed
that the plea of adverse possession being a special plea is
required to be proved strictly and a person who claims adverse
possession has no equity in his favour. Under these
circumstances, even if it is considered that two views are
possible, the court is constrained to hold that the defendant has
not able to establish the adverse possession over the suit
schedule property and the suit filed by the plaintiff is within the
36 O.S.No.5226/2011
period of limitation. Consequently, issue No.9 and additional
issue No.1 are answered in the negative.
30. Issues No.2,8,10, 11 & 12:- In view of the answers
given to the above issues, the plaintiff has proved her title over
the suit schedule property and able to establish that the suit filed
by her is within the period of limitation. The defendant has failed
to prove the adverse possession. Issue No.2 is casting burden on
the plaintiff to establish that her predecessor in title N.Sudhakar
became the owner in possession of the suit schedule property by
virtue of the sale deed dated 08.04.1999. It is proved that he
became the owner of the suit schedule property through the sale
deed dated 08.04.1999. But, while answering the other issues,
the court has held that the possession was not delivered to him.
Therefore, issue No.2 is answered partly in the affirmative.
31. The defendant has failed to establish the adverse
possession. Therefore, the plaintiff is entitled to recover the
possession of the suit schedule property. The sale deed executed
in favour of the predecessor in title of the plaintiff was dated
08.04.1999. The sale deed executed in favour of the defendant is
dated 31.03.2011. Therefore, when the sale deed executed in
favour of N.Sudhakar was held to be valid, the title of the plaintiff
is established and the sale deed dated 31.03.2011 executed
subsequently did not convey any right or title in favour of the
37 O.S.No.5226/2011
defendant. Hence, it is required to be declared as null and void.
Consequently issue No.8 is answered in the affirmative.
32. The plaintiff has sought for the relief of permanent
prohibitory injunction. The possession of the suit schedule
property is still with the defendant. It is required to be recovered
from the defendant. Therefore, there is no need to grant an order
of permanent prohibitory injunction. Hence issue No.11 is
answered in the negative.
33. In view of this, the suit is liable to be decreed. However,
the evidence on record shows that the defendant has paid
consideration amount to the vendor who had defrauded him. The
evidence also shows that the defendant has paid a sum of
₹45,000/- towards the security deposit to the tenant. Therefore,
while decreeing the suit, it is not proper to direct the defendant to
pay cost. The plaintiff or her predecessor have not sought the
relief by filing the suit immediately after its purchase. Further, the
predecessor in title of the plaintiff has purchased the property
when the possession was with the defendant. Taking note of
these circumstances, in the opinion of the court, when the
defendant is in the possession of the suit schedule property
immediate delivery of possession will cause hardship to him and
it would be just and proper to give 6 months time to the defendant
38 O.S.No.5226/2011
to deliver the possession. On these observations, the following
order is passed
ORDER
Suit is decreed without cost.
The defendant is directed to quit and deliver
the vacant possession of the suit schedule property
to the plaintiff within six months from today.
The sale deed dated 31.03.2011 registered in
the office of the Sub Registrar, Banaswadi as
Document No.BNS-1-09275-2010-11 in Book No.1
stored in CD No.BNSD87 in the name of the
defendant is declared as null and void.
Registry shall forward the copy of the decree
to the Sub-Registrar, Banaswadi to make necessary
entries in the concerned register as required under
Section 31(2) of the Specific Relief Act 1963.
Draw decree accordingly.
(Dictated to the Dictaphone and Speech to Text App,
carried out corrections by the Senior Sheristedar, print out
taken and then pronounced in the Open Court on this the
1st day of April, 2026)
(Vijaya Kumar Rai)
X Addl. City Civil & Sessions Judge,
Bengaluru.
ANNEXURE
List of witnesses examined for the plaintiff:
PW.1 : Pushpa Bai
PW.2 : V. Sachithanandam
PW.3 : Prof.K. Ramakrishnan
List of documents got exhibited for the plaintiff:
Ex.P1 : GPA dtd:27.03.1999
39 O.S.No.5226/2011Ex.P1(a): Signature of PW2
Ex.P2 : Registered sale deed dt:8.4.99
Ex.P3 : Encumbrance certificate dt:8.4.99
Ex.P4 : 4 tax paid receipts
Ex.P5 : Gift deed
Ex.P6 : Two encumbrance certificates
Ex.P7 : Copy of sale deed dt:31.03.2011
Ex.P8 : Original affidavit
Ex.P8(a): Signature of PW2
Ex.P9 : Confirmation of sale
Ex.P9(a): Signature of PW2
Ex.P10: Letter dt:06.08.2011
Ex.P11: Covering letter
Ex.P11(a): Signature of PW2
Ex.P12: Declaration cum affidavit along with
postal cover dtd:30.08.2011
Ex.P12(a): Signature of PW2
Ex.P13: Report of Truth labs
Ex.P13(a): Comparison chart of B. Sachithanandam
Ex.P13(b): Copy of GPA
Ex.P13(c): Copy of affidavit
Ex.P13(d): Copy of declaration affidavit
List of witnesses examined for the defendant:
D.W1 : P. Babu
D.W.2 : R.NarayanappaList of documents exhibited for defendant:
Ex.D1 : Sale deed
Ex.D2 : Sale agreement
Ex.D3 : General Power of Attorney
Ex.D4 : Khatha extract
Ex.D5 : Tax paid receipt
40 O.S.No.5226/2011Ex.D6 : Sale deed
Ex.D7 : Encumbrance certificate
Ex.D8 to D.10: Acknowledgments
Ex.D11 to D.13: Tax paid receipts
Ex.D14 : Letter dated: 18.1.1999
Ex.D15 : Tenancy agreement
Ex.D16 : Property settlement dated: 3.10.2011
Ex.D17 : Certified copy of B report extract
Ex.D18 : Certified copy of postal receipt
Ex.D19 : Certified copy of FIR
Ex.D20 : Certified copy of police complaint
Ex.D21 : Certified copy of Gift deed
Ex.D22 & 23: Certified copy of General Power of Attorney
Ex.D24 & 25: Certified copy of sale deeds
Ex.D26 : Police statement
Ex.D27 : Certified copy of property list
Ex.D28 : Certified copy of Mahazar
Ex.D29 : Finger Print Examination Report
Ex.D.29(a): Thumb impression of D.2X Addl. City Civil & Sessions Judge,
Bangalore.
Digitally
signed by
VIJAYA VIJAYA
KUMAR RAI B
KUMAR Date:
RAI B 2026.04.04
18:01:17
+0530
