Lambani Teekya Naik vs Lambani Neelya Naik By His Lrs on 6 April, 2026

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    Karnataka High Court

    Lambani Teekya Naik vs Lambani Neelya Naik By His Lrs on 6 April, 2026

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                                                              NC: 2026:KHC-D:5044
                                                             RSA No. 5140 of 2008
    
    
                        HC-KAR
    
    
    
    
                       IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
                            DATED THIS THE 6TH DAY OF APRIL 2026
                                            BEFORE
                             THE HON'BLE MRS JUSTICE GEETHA K.B.
                        REGULAR SECOND APPEAL NO. 5140 OF 2008 (-)
    
    
                       BETWEEN
    
                       LAMBANI TEEKYA NAIK,
                       SINCE DECEASED BY HIS LR
    
                       LAMBANI BHOJYA NAIK,
                       S/O. LAMBANI TEKKYA NAIK,
                       AGE: 29 YEARS, OCC: AGRICULTURE,
                       R/O. TUMBINAKERI DODDATANDA,
                       TQ: HADAGALI, DIST: BALLARI-583216.
                                                                      ...APPELLANT
                       (BY SRI. MAHESH WODEYAR, ADVOCATE)
    
                       AND
    
                             LAMBANI NEELYA NAIK
                             BY HIS LRS
    Digitally signed
    by BHARATHI
    HM
    Location: HIGH
    COURT OF
    KARNATAKA,
                       1.    SMT. LAMBANI KESALI BAI,
    DHARWAD
    BENCH                    W/O. LAMBANI NEELYA NAIK,
                             AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
                             R/O. TUMBINAKERI DODDATANDA,
                             TQ: HADAGALI, DIST: BALLARI-583216.
    
    
                       2.    SMT. LAMBANI GANGALIBAI,
                             W/O. LAMBANI HEMLYA NAIK,
                             AGE: 44 YEARS, OCC: AGRICULTURE,
                             R/O. GOVINDPUR THANDA,
                             TQ: HADAGALI, DIST: BALLARI-583216.
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    3.   LAMBANI VALYA NAIK,
         S/O. LATE NEELYA NAIK,
         SINCE DECEASED BY HIS LR'S
    
    
    3(A) SMT. SUSHILABAI
         W/O. LAMBANI VALYA NAIK,
         AGE: 55 YEARS, OCC: HOUSEHOLD,
         R/O. TUMBINAKERI DODDATANDA,
         TQ: HADAGALI, DIST: BALLARI-583216.
    
    
    3(B) KRISHNA NAIK
         S/O. LAMBANI VALYA NAIK,
         AGE: 35 YEARS, OCC: BANK MANAGER,
         R/O. TUMBINAKERI DODDATANDA,
         TQ: HADAGALI, DIST: BALLARI-583216.
    
    
    3(C) VINOD
         S/O. LAMBANI VALYA NAIK,
         AGE: 33 YEARS, OCC: DOCTOR,
         R/O. TUMBINAKERI DODDATANDA,
         TQ: HADAGALI, DIST: BALLARI-583216.
    
    
    3(D) LATHA
         D/O. LAMBANI VALYA NAIK,
         AGE: 30 YEARS, OCC: HOUSEHOLD,
         R/O. TUMBINAKERI DODDATANDA,
         TQ: HADAGALI, DIST: BALLARI-583216.
    
    
    3(E) CHETAN
         S/O. LAMBANI VALYA NAIK,
         AGE: 28 YEARS, OCC: AGRICULTURE,
         R/O. TUMBINAKERI DODDATANDA,
         TQ: HADAGALI, DIST: BALLARI-583216.
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    3(F) MEGHARAJ
         S/O. LAMBANI VALYA NAIK,
         AGE: 26 YEARS, OCC: BUSINESS,
         R/O. TUMBINAKERI DODDATANDA,
         TQ: HADAGALI, DIST: BALLARI-583216.
    
    
    4.     LAMBANI NANYA NAIK,
           S/O. LAMBANI NEELYA NAIK,
           AGE: 30 YEARS, OCC: AGRICULTURE,
           R/O. TUMBINAKERI DODDATANDA,
           TQ: HADAGALI, DIST: BALLARI-583216.
                                               ...RESPONDENTS
    (BY SRI. H.M. DHARIGOND, ADVOCATE FOR
        SRI. RAVI HEGDE, ADVOCATE FOR R1 & R4;
        SRI. VINAYKUMAR BHAT, ADVOCATE FOR R3(A-F);
        NOTICE TO R2 IS HELD SUFFICIENT)
    
    
           THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING
    TO CALL FOR THE RECORDS; SET ASIDE THE JUDGMENT AND
    DECREE DATED 30.07.2008 PASSED BY THE PRL. CIVIL JUDGE
    (SR.    DN.)   AND   JMFC   HOSPET   IN    R.A.   NO.26/2007   AND
    CONSEQUENTLY CONFIRM THE JUDGMENT AND DECREE DATED
    20/12/2006 PASSED BY THE CIVIL JUDGE (JR.DN.) HADAGALI
    IN O.S.NO.74/1997 IN THE INTEREST OF JUSTICE AND EQUITY.
    
           THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
    JUDGMENT       ON     01.04.2026     AND     COMING     ON     FOR
    PRONOUNCEMENT OF JUDGMENT THIS DAY, DELIVERED THE
    FOLLOWING:
    
    
    
    CORAM:     THE HON'BLE MRS JUSTICE GEETHA K.B.
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                                            RSA No. 5140 of 2008
    
    
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                           CAV JUDGMENT
    

    This is the appeal filed under Section 100 of the Code

    of Civil Procedure by the appellant/plaintiff praying for

    SPONSORED

    setting aside the judgment and decree dated 30.07.2008 in

    R.A.No.26/2007 on the file of Principal Civil Judge (Sr.Dvn)

    and J.M.F.C., Hospet; consequently to confirm the judgment

    and decree dated 20.12.2006 passed in O.S.No.74/1997 on

    the file of Civil Judge (Jr.Dvn) and J.M.F.C., Hadagalli.

    2. Parties would be referred with their ranks, as

    they were before trial Court for sake of convenience and

    clarity.

    3. Plaintiff has filed the suit before trial Court

    praying for the relief of declaration that he is the absolute

    owner of suit schedule property; for possession of suit

    schedule property directing defendants to deliver vacant

    possession of suit schedule property in favour of plaintiff;

    for mesne profits at ₹800/- per annum against defendants
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    from 1993, till handing over possession to plaintiff for Court

    costs and for such other reasons.

    4. The case of plaintiff before trial Court in nutshell

    is that, plaintiff has purchased the suit schedule property

    bearing Sy.No.147-A measuring 4 acres 95 cents situated at

    Thumbinakeri Village within the jurisdiction of Hadagalli

    village under the registered sale deed dated 03.01.1968

    from its previous owner Chigateri Imambee, wife of

    Hussainsab, resident of Hirehadagali. Defendant No.1

    admitted and signed as witness to said registered sale deed.

    Plaintiff all along is in possession and enjoyment of suit

    schedule property from the date of purchase i.e. from 1993.

    Plaintiff has got right, title and interest in or over suit

    schedule property. Defendant Nos.1 and 2 have no manner

    of right, title and interest in or over the suit schedule

    property, but they are illegally and high handedly occupied

    the suit schedule property since three years and high

    handedly illegally taking crops every year worth ₹.800/-,

    excluding costs; therefore, defendant Nos.1 and 2 are liable
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    to repay the mesne profits. Plaintiff has filed criminal case

    in private complaint No.16/96 against defendant Nos.1 and

    2 and one Kesali Bai which is pending for consideration. On

    08.09.1992, defendant No.1, clandestinely got his name

    entered in register of sale deed and record of rights and

    purchased the suit land from one Sri.Huchi Dodda

    Guddappa, who is not the real owner of suit schedule

    property. Defendants are not in possession of suit schedule

    property at any time, till 1992. The alleged sale deed of

    defendant No.1 is not binding on plaintiff as he is not party

    to it. The first defendant’s name appeared in record of

    rights nominally without hearing an enquiry by the revenue

    authorities. Thus, those entries are not binding on plaintiff.

    Hence, the suit for appropriate reasons.

    5. After filing the suit, defendant Nos.1 and 2

    appeared through their counsel and defendant No.2 filed his

    written statement, which is being adopted by defendant

    No.1. In the written statement, defendant No.2 has denied

    the entire plaint averments including the purchase of suit
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    schedule property by plaintiff in the year 1968, he is one of

    the attestors to it, etc. He contended that, at no point of

    time, plaintiff is in possession of suit schedule property up

    to 1993 as contended by him. Defendant No.1 has

    purchased suit schedule property and Sy.No.147-B

    measuring 3 acres 90 cents which are situated in one block

    from the erstwhile owner Sri.Huchi Dodda Guddappa for a

    sum of ₹.600/- under a registered sale deed dated

    06.03.1961. Soon after such purchase, Patta Book is

    mutated into the name of defendant No.1. Defendant Nos.1

    and 2 have all along enjoying the suit schedule property in

    their own right, title and interest. In the subsequent

    partition, defendants have got these two properties to their

    share. The government recognized their rights and issued a

    Patta Receipt Book. The record of rights also revealed that,

    defendants are in possession of it. The plaintiff has not

    asserted his right over suit schedule property before

    defendants and never demanded possession with

    defendants. Even though, plaintiff contended that, he has
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    purchased the suit schedule property, he has not made any

    efforts to get its possession. He has not prayed for change

    of mutation or RTCs’ into his name, till 1992. Only in the

    year 1992, plaintiff got changed suit schedule property into

    his name in revenue records, which is challenged by

    defendants in Appeal No.44/1992 before the Assistant

    Commissioner who has set aside the matter and remanded

    for fresh disposal to Tahasildar Hadagalli. The proceedings

    before Tahasildar are closed after plaintiff instituted the

    present suit. The change of Patta under No.6/92 and entry

    of name of plaintiff in record of rights is null and void.

    Defendants are in actual possession and enjoyment of suit

    schedule property since 06.03.1961, openly, exclusively to

    the knowledge of all including the plaintiff as of right and

    thereby acquired right, title and interest over suit schedule

    property even by law of adverse possession. Plaintiff was

    not in possession of suit schedule property within twelve

    years prior to filing of the suit and no steps were taken for

    declaration of his alleged right, within the prescribed period.
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    Thus, the suit is barred by law of limitation. Earlier plaintiff

    has filed O.S.No.151/1994 against one Nanyanaik and

    against these defendants for the relief of declaration of his

    alleged right over suit schedule property and to deliver

    vacant possession of portion of the lands from defendants.

    Later plaintiff has withdrawn said suit with liberty to file

    fresh suit. Plaintiff contended in said suit that defendant

    Nos.1 and 2 are in illegal occupation of portion of the

    property since 1993 and they were taking yields worth

    ₹.800/-. Plaintiff is not definite about the declaration of

    alleged right either in respect of suit schedule property or a

    portion of it. The suit is bad for non-joinder of necessary

    parties. All along plaintiff is aware about possession of

    defendants’ over suit schedule property, since from the date

    of sale deed dated 06.03.1961 in their own right, title and

    interest. Hence, prayed for dismissal of suit with costs.

    6. Based on these pleadings, the trial Court has

    framed the following issues:

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    1. Whether the plaintiff proves that his title
    and ownership over the suit property?

    2. Whether the plaintiff proves that he was
    dispossessed from the suit property prior to
    3 years from the date of suit?

    3. Whether the plaintiff proves that the
    defendants are liable to pay mesne profits
    of Rs.800/- per year?

    4. Whether plaintiff proves that the sale deed
    obtained by 1st defendant from one Hucha
    Dodda Guddappa is not binding on him as
    pleaded in para No.7 and 8 of the plaint?

    5. Whether the plaintiff is entitled for the
    relief’s sought for?

    6. Whether the 2nd defendant proves that the
    1st defendant is the owner of suit property
    and in the partition, the suit property fell to
    the share of 2nd defendant as pleaded in
    para 5 of his written statement ?

    7. Whether the 2nd defendant proves that
    defendants have perfected their title over
    the suit property by adverse possession as
    pleaded in para No.7 and 8 of written
    statement?

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    8. What is the effect of O.S.No.151/94 as
    pleaded in para 9 of written statement?

    9. To what relief the parties are entitled to?

    10. What order or decree?

    7. After framing of issues, recording evidence and

    hearing arguments, the trial Court has partly decreed the

    suit declaring that plaintiff is the absolute owner of suit

    schedule property directing defendants to deliver possession

    of suit schedule property to plaintiff within 30 days from the

    date of judgment and further held that plaintiff is entitled

    for mesne profits from the date of suit, till delivery of

    possession to be ascertained under Order XX Rule 12 C.P.C.

    8. During pendency of the suit, plaintiff and

    defendant No.2 died and their legal representatives are

    brought on record.

    9. Aggrieved by said judgment and decree,

    defendants have filed R.A.No.26/2007. After hearing

    arguments of both sides, the First Appellate Court allowed

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    the appeal and reversed the judgment and decree of trial

    Court and thereby, dismissed the suit of plaintiffs.

    10. Aggrieved by the same, legal representatives of

    plaintiff/appellant have filed the present appeal.

    11. After filing the appeal, at the time of admitting

    this appeal, following substantial question of law would

    arose:

    Whether the finding recorded by the Trial
    Court that the defendants have perfected their
    title to the suit property by adverse
    possession is contrary to the law laid down by
    the Supreme Court in T. Anjanappa Vs.
    Somalingappa
    [(2006) 7 SCC 570]?.

    12. Heard argument of both sides.

    13. The substantial question of law is reformulated

    as follows:

    “What would be the nature of possession of
    defendants who entered into possession under
    invalid deed of transfer (sale deed of 1961) and if
    such person continues possession for a period more
    than 12 years i.e., prescribed limitation to file a suit

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    for possession, whether such person would acquire
    title by adverse possession?”

    14. After reformulation of substantial question of law,

    heard arguments of both sides.

    15. The main contention of plaintiff/appellant is that

    plaintiff is the owner of suit schedule property having

    purchased the same under registered sale deed dated

    03.01.1968 from its erstwhile owner Chigateri Imambee.

    Said Chigateri Imambee has purchased the same under

    registered sale deed dated 05.01.1953 from its owner

    Lambani Nanya Naik. Since from the date of purchase, the

    plaintiff was in possession of suit schedule property.

    Defendant No.1 contended that, he purchased the same

    from its erstwhile owner Sri.Huchi Dodda Guddappa under

    registered sale dated 06.03.1961. However, both trial Court

    and First Appellate Court held that the said Huchi Dodda

    Guddappa had no right, title or interest in or over suit

    schedule property to convey the same to defendant No.1.

    Further, defendant No.1 or his legal representatives and

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    defendant No.2 have not filed Counter-Claim or Cross-

    Objection or Cross-Appeal to the second appeal. Thus, the

    ownership of plaintiff is established. Once the ownership of

    plaintiff is established, the possession of defendants over

    suit schedule property would be that of trespasser and he

    will not have any right, title and interest over suit schedule

    property. Defendants have taken alternative plea of adverse

    possession in the written statement. Even though they have

    taken such plea, defendant No.1 and 2 never admitted the

    ownership of plaintiff over suit schedule property. Without

    admitting the ownership of plaintiff, defendants cannot

    claim the relief of adverse possession.

    16. Furthermore, D.W.2-defendant No.2 in his

    examination-in-chief has deposed that plaintiff does not

    know about the cultivation by defendants and even the

    villagers also do not know it. Thus, allowing the appeal by

    the First Appellate Court and dismissing the suit is

    erroneous.

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    17. Only through Exs.P.15 and P.18, for the first

    time, plaintiff came to know about possession of defendants

    over suit schedule property. Hence, from the date of

    knowledge, suit is filed within 12 years and thus, suit is not

    barred by Article 65 of the Limitation Act, 1963.

    18. Further, the finding of the First Appellate Court

    that suit is bad for non-joinder of necessary parties is

    incorrect. Earlier suit is filed against 4 defendants and it

    was withdrawn with a liberty to file fresh suit as defendant

    Nos.1 and 2 are in possession, the plaintiff has filed the suit

    only against defendant Nos.1 and 2 and thus, the finding of

    the First Appellate Court that the suit is bad for non-joinder

    of necessary parties is also erroneous. In this regard,

    learned counsel for appellants relied on following citations:

    1) T. Anjanappa and others Vs.
    Somalingappa and another
    reported in
    (2006) 7 SCC 570

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    2) Neelam Gupta and others Vs. Rajendra
    Kumar Gupta and another
    reported in
    2024 SCC OnLine SC 2824

    3) Karnataka Board of Wakf Vs.
    Government of India and others

    reported in (2004) 10 SCC 779

    4) Hemaji Waghaji Jat Vs. Bhikhabhai
    Khengarbahi Harijan and others

    reported in (2009) 16 SCC 517

    5) State of U.P. through Estate Officer Vs.
    1st Addl. District Judge, Lucknow and
    others reported in 2013 SCC OnLine All
    13736

    19. Learned counsel for respondents Sri. H. M.

    Dharigond would submit that since 1961, defendant Nos.1

    and 2 are in possession of suit schedule property based on

    the sale deed executed by Sri.Huchi Dodda Guddappa in

    favour of defendant No.1. RTCs. were standing in the name

    of defendant No.1 from the date of the said sale.

    Furthermore, the said sale by Huchi Dodda Guddappa is

    entered in the Encumbrance Certificate. Thus, in the year

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    1961, defendant No.1 was put in possession of the suit

    schedule property by Huchi Dodda Guddappa; Whether

    rightly or wrongly, defendant No. 1 was put in possession of

    the said property. Defendant No.2 is none other than the

    son of defendant No.1, and in the partition, the said

    property was fallen to the share of defendant No.2. The

    plaintiff is aware of the possession of defendants in the suit

    schedule property. Moreover, registration of a document is

    notice to everyone, including the plaintiff and his vendor.

    20. Within 12 years from 1961, plaintiff and his

    vendor have not filed any suit to claim possession of the

    suit schedule property. As per Section 27 of the Limitation

    Act, 1963, the right, if any, of the plaintiff is extinguished,

    and he cannot file any suit for possession of the suit

    schedule property after 12 years from dispossession.

    However, in the instant case, plaintiff was never put in

    possession of the suit schedule property because, according

    to the plaintiff, he purchased it in the year 1968, whereas

    defendant No.1 was in continuous possession of the

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    property from 1961 onwards. Hence, vendor of the plaintiff

    never put plaintiff in possession of the suit schedule

    property. Therefore, the suit is apparently barred by

    limitation.

    21. In this regard, he relied on the judgment of a

    Coordinate Bench of this Court reported in the case of M.

    Abdul Rasheed vs. Shivappa1 and prayed for dismissal of

    the appeal.

    22. With this background, the contentions raised by

    both sides are to be analysed.

    23. The contention of plaintiff is that he has

    purchased suit schedule property under registered sale

    deed dated 03.01.1968 from its erstwhile owner Chigatery

    Imamabee. Both the trial court and first appellate court

    have concurrently held that plaintiff has purchased the

    property from its erstwhile true owner and defendants failed

    to establish their contention that the vendor of defendant

    1
    HCR 2011 Kant 624

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    No.1 Huchi Dodda Gudappa was the real original owner of

    the property to sell the same to defendant No.1.

    24. The basic principle of law is that the seller can

    sell/alienate the rights which he possesses on the property

    to purchaser. He cannot sell the title better than what he

    possesses.

    25. Defendants contended that from the date of sale

    in favour of defendant No.1, the suit schedule property was

    mutated into the name of defendant No.1 and his name

    continued in the RTCs. till there was partition between

    defendant Nos.1 and 2. After such partition, revenue entries

    continued in the name of defendant No.2, till 1992. In the

    year 1992, plaintiff has raised the revenue dispute

    regarding change of mutation and thus, some revenue

    proceedings have taken place and for a limited period,

    name of plaintiff entered in revenue records only after 1992

    and not prior to that. However, they have produced RTCs.

    from 1985-86 onwards and not from 1961 onwards to

    substantiate their above contention.

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    26. Furthermore, plaintiff has prayed for possession

    of suit schedule property from defendants contending that

    since 3 years prior to filing of the suit, defendants have

    trespassed into suit schedule property and take its

    possession. However, no document is produced to show

    that at the time, what resistance plaintiff has made for

    dispossessing him.

    27. According to plaintiff, his vendor Chigateri

    Imambee has purchased suit schedule property from

    erstwhile owner Neelya Naik.

    28. Defendants contended that they have purchased

    suit schedule property along with another survey number

    property from one Huchi Dodda Guddappa in the year 1961.

    Since then, they are in possession of it. However,

    defendants do not know anything about the title of the

    vendor of D.W.1. How the vendor of defendant No.1 got suit

    schedule property is not known to defendants. Even though,

    defendants have taken this plea that they are in possession

    of suit schedule property since 1961, they have not

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    established the same by producing RTCs since 1961

    onwards. On the other hand, they have produced RTCs

    only from 1985-86 onwards.

    29. Defendants have taken the plea of adverse

    possession. However, contrary to said plea, D.W.2 has

    deposed in his examination-in-chief that the cultivation by

    defendants is not known to plaintiff or villagers.

    30. D.W.2 is the son of defendant No.1. However,

    he personally does not know anything about the sale. His

    evidence is that defendants are the absolute owners of suit

    schedule property. When it is the contention and evidence

    of defendants that they are absolute owners of suit

    schedule property based on the sale deed of 1961 and failed

    to establish the ownership of their vendor; definitely, they

    cannot be declared as owners of suit schedule property . At

    the same time, they have failed to establish the adverse

    possession.

    31. The plaintiff has filed the suit earlier to present

    suit against defendant Nos.1 and 2 and others and has

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    withdrawn it with a liberty to file fresh suit and then, he has

    filed the present suit against defendant Nos.1 and 2

    contending that it is defendant Nos.1 and 2 are in

    possession of it and not the other defendants of the earlier

    suit.

    32. Defendants have taken the plea of adverse

    possession and they have taken it only as an alternative

    plea. Their plea is that, they have purchased the property

    from Huchi Dodda Guddappa and thus, they are the owners

    of the property. Thus, defendants have not at all admitted

    that plaintiff or his vendor Chigateri Imambee was owner of

    suit schedule property at any point of time. The defendants

    at one stretch claim that they are the owners of the

    property and at another stretch claim that they have

    perfected their title by law of adverse possession.

    33. With this background, the citations relied by both

    sides are to be looked into. The citations relied by learned

    counsel for appellants are as follows:

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    34. The judgment of the Hon’ble Apex Court in T.

    Anjanappa and others Vs. Somalingappa and

    another2, in paragraph Nos.12, 14, 19 and 20, reads as

    follows:

    “12. The concept of adverse possession
    contemplates a hostile possession i.e. a
    possession which is expressly or impliedly in
    denial of the title of the true owner. Possession
    to be adverse must be possession by a person
    who does not acknowledge the other’s rights
    but denies them. The principle of law is firmly
    established that a person who bases his title on
    adverse possession must show by clear and
    unequivocal evidence that his possession was
    hostile to the real owner and amounted to
    denial of his title to the property claimed. For
    deciding whether the alleged acts of a person
    constituted adverse possession, the animus of
    the person doing those acts is the most crucial
    factor. Adverse possession is commenced in
    wrong and is aimed against right. A person is
    said to hold the property adversely to the real
    owner when that person in denial of the

    2
    (2006) 7 SCC 570

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    owner’s right excluded him from the enjoyment
    of his property.

    14. Adverse possession is that form of
    possession or occupancy of land which is
    inconsistent with the title of the rightful owner
    and tends to extinguish that person’s title.
    Possession is not held to be adverse if it can be
    referred to a lawful title. The person setting up
    adverse possession may have been holding
    under the rightful owner’s title e.g. trustees,
    guardians, bailiffs or agents. Such persons
    cannot set up adverse possession:

    19. In Halsbury’s Laws of England, 1953
    Edn., Vol. I it has been stated as follows:

    “At the determination of the statutory
    period limited to any person for making an
    entry or bringing an action, the right or title of
    such person to the land, rent or advowson, for
    the recovery of which such entry or action
    might have been made or brought within such
    period is extinguished and such title cannot
    afterwards be reviewed either by re-entry or by
    subsequent acknowledgment. The operation of
    the statute is merely negative, it extinguishes
    the right and title of the dispossessed owner
    and leaves the occupant with a title gained by
    the fact of possession and resting on the

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    infirmity of the right of the others to eject
    him.”

    20. It is well-recognised proposition in
    law that mere possession however long does
    not necessarily mean that it is adverse to the
    true owner. Adverse possession really means
    the hostile possession which is expressly or
    impliedly in denial of title of the true owner and
    in order to constitute adverse possession the
    possession proved must be adequate in
    continuity, in publicity and in extent so as to
    show that it is adverse to the true owner. The
    classical requirements of acquisition of title by
    adverse possession are that such possession in
    denial of the true owner’s title must be
    peaceful, open and continuous. The possession
    must be open and hostile enough to be capable
    of being known by the parties interested in the
    property, though it is not necessary that there
    should be evidence of the adverse possessor
    actually informing the real owner of the
    former’s hostile action.”

    35. The judgment of the Hon’ble Apex Court in

    Neelam Gupta and others Vs. Rajendra Kumar Gupta

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    and another3, in paragraph Nos.43 and 45, reads as

    follows:

    “43. In the case on hand, the evidence on
    the part of the defendants/appellants herein
    would reveal that instead of establishing
    ‘animus possidendi’ under hostile colour of title
    they have tendered evidence indicating only
    permissive possession and at the same time
    failed to establish the time from which it was
    converted to adverse to the title of the plaintiff
    which is open and continuous for the
    prescriptive period.

    44. In M. Siddiq‘s case (supra) paragraphs
    1142 and 1143 assume relevance and they, in
    so far as relevant to this case, run as under: –

    “1142. A plea of adverse possession is
    founded on the acceptance that ownership
    of the property vests in another against
    whom the claimant asserts a possession
    adverse to the title of the other. Possession
    is adverse in the sense that it is contrary to
    the acknowledged title in the other person
    against whom it is claimed. Evidently,
    therefore, the plaintiffs in Suit 4 ought to
    3
    2024 SCC OnLine SC 2824

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    be cognizant of the fact that any claim of
    adverse possession against the Hindus or
    the temple would amount to an acceptance
    of a title in the latter. Dr Dhavan has
    submitted that this plea is a subsidiary or
    alternate plea upon which it is not
    necessary for the plaintiffs to stand in the
    event that their main plea on title is held to
    be established on evidence. It becomes
    then necessary to assess as to whether the
    claim of adverse possession has been
    established.

    1143. A person who sets up a plea of
    adverse possession must establish both
    possession which is peaceful, open and
    continuous possession which meets the
    requirement of being nec vi nec claim and
    nec precario. To substantiate a plea of
    adverse possession, the character of the
    possession must be adequate in continuity
    and in the public because the possession
    has to be to the knowledge of the true
    owner in order for it to be adverse. These
    requirements have to be duly established
    first by adequate pleadings and second by
    leading sufficient evidence. Evidence, it is
    well settled, can only be adduced with

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    reference to matters which are pleaded in a
    civil suit and in the absence of an adequate
    pleading, evidence by itself cannot supply
    the deficiency of a pleaded case.”

    45. Upon considering the evidence on the
    part of the appellants herein (the defendants),
    we have no hesitation to hold that the
    requirements to co-exist to constitute adverse
    possession are not established by them. So
    also, it can only be held that the reckoning of
    the period of limitation from the date of
    commencement of the right of ownership of the
    plaintiff over the suit land instead of looking
    into whether they had succeeded in pleading
    and establishing the date of commencement of
    adverse possession and satisfaction regarding
    the prescriptive period in that regard, was
    rightly interfered with, by the High Court.”

    36. The judgment of the Hon’ble Apex Court in

    Karnataka Board of Wakf Vs. Government of India

    and others4 in paragraph No.11, reads as follows:

    4

    (2004) 10 SCC 779

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    “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 reported in

    (1997) 7 SCC 567)] Physical fact of exclusive

    possession and the animus possidendi to hold as

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    owner in exclusion to the actual owner are the most

    important factors that are to be accounted in cases

    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.

    [Mahesh Chand Sharma (Dr.) v. Raj Kumari

    Sharma reported in (1996) 8 SCC 128] “

    37. The judgment of the Hon’ble Apex Court in

    Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbahi

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    Harijan and others5 in paragraph Nos.29 and 30, reads as

    follows:

    “29. We deem it proper to reproduce the
    relevant portion of the judgment in Revamma
    case: (SCC p. 79, paras 51-52)

    “51. Thereafter the applicants moved the
    European Commission of Human Rights (ECHR)
    alleging that the United Kingdom law on
    adverse possession, by which they lost land to
    a neighbour, operated in violation of Article 1
    of Protocol 1 to the Convention for the
    Protection of Human Rights and Fundamental
    Freedoms (‘the Convention’).

    52. It was contended by the applicants
    that they had been deprived of their land by
    the operation of the domestic law on adverse
    possession which is in contravention with
    Article 1 of Protocol 1 to the Convention for the
    Protection of Human Rights and Fundamental
    Freedoms (‘the Convention’), which reads as
    under:

    ‘Every natural or legal person is entitled
    to the peaceful enjoyment of his possessions.
    No one shall be deprived of his possessions
    5
    (2009) 16 SCC 517

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    except in the public interest and subject to the
    conditions provided for by law and by the
    general principles of international law.

    The preceding provisions shall not,
    however, in any way impair the right of a State
    to enforce such laws as it deems necessary to
    control the use of property in accordance with
    the general interest or to secure the payment
    of taxes or other contributions or penalties.’ ”

    30. Reverting to the facts of this case,
    admittedly, the appellants at no stage had set
    up the case of adverse possession, there was
    no pleading to that effect, no issues were
    framed, but even then the trial court decreed
    the suit on the ground of adverse possession.
    The trial court judgment being erroneous and
    unsustainable was set aside by the first
    appellate court. Both the first appellate court
    and the High Court have categorically held that
    the appellant has miserably failed to establish
    title to the suit land, therefore, he is not
    entitled to the ownership. We endorse the
    findings of the first appellate court upheld by
    the High Court.”

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    38. The judgment of the Hon’ble Apex Court in State

    of U.P. through Estate Officer Vs. 1st Addl. District

    Judge, Lucknow and others6 in paragraph Nos.163 and

    164, reads as follows:

    “163. In Maharaja Sir. Kesho Prasad
    Singh Bahadur (AIR 1937 PC 69) (supra), it
    was held that in order to obtain a favourable
    finding of adverse possession, one must have
    to satisfy all the qualities of adequacy,
    continuity and exclusiveness. Reliance was
    placed on Kuthali Moothavur v. P.
    Kunharankutty
    , (AIR 1922 PC 181).

    164. Looking the matter in hand in the
    light of discussion, binding precedents and
    exposition of law, as referred to and discussed
    above, in my view, by no stretch of
    imagination, it can be said that either there
    existed appropriate pleadings to attract plea of
    adverse possession or that requisite facts to
    attract period of limitation so as to confer title
    upon respondents 3 and 4 or their ancestors
    are there on record. The very necessity of
    proving possession nec vi nec clam nec

    6
    2013 SCC OnLine All 13736

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    precario is absent. Respondents 3 and 4
    nowhere have pleaded that possession was
    hostile to the owner of the property in question
    and they had intention to hold the land in
    question with an intention to possess him
    against interest of true owner. The plea of
    adverse possession is not a pure question of
    law but a blended one of fact and law as held
    in Karnataka Board of Wakf (supra). The
    person claiming adverse possession should
    show:–

               (a)     On what date he came into
                       possession,
    
               (b)      What was the nature of his
                       possession,
    
               (c) Whether factum of possession
                       was known to other party.
    
               (d)    How long has his possession
                       has continued.
    
               (e)      His possession was open,
                       undisturbed and hostile to
                       the owner.
    
              165. A       person        pleading     adverse
    

    possession has no equities in his favour. Since
    he is trying to defeat the rights of true owner,
    therefore, it was for him to clearly plead and

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    establish all facts necessary to establish his
    adverse possession. It is of utmost importance
    that one has to plead and prove that his
    possession was adverse to the true owner.”

    39. The learned counsel for respondents relies on the

    judgment of Hon’ble Apex Court in Alla Baksh Vs. Mohd.

    Hussain7 in paragraph Nos.9 and 10, reads as follows:

    9. Section 27 of the Limitation Act
    provides that on the determination of the
    period hereby limited to any person for
    instituting a suit for possession of any
    property, his right to such property shall be
    extinguished. A perusal of the Section per se
    reveals that this Section applies and controls
    the operation of the right to the property in
    cases, where the period of limitation over suit
    for possession of the property expires and suit
    is not filed. It provides that right to property of
    person shall be extinguished when it provides,
    as to when the right of the person to his
    property shall extinguish and in what cases it
    shall extinguish. The earlier part of the Section
    reveals that if there is a cause of action for a

    7
    I.L.R. 1996 KAR 1340

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    person to file a suit for possession and the suit
    for possession is not filed by him either on the
    basis of title or on the basis of possession and
    later dispossession, if the period of limitation
    prescribed hereof expires without suit being
    filed, then the right, title and interest of that
    therein shall extinguish. This Section provides
    an exception to the general principle of law
    that limitation bars the remedy only, but, does
    not extinguish the right, but, so far as Section
    27
    is concerned, it expressly provides that
    when there exists a cause of action in favour of
    a person to file a suit for possession, then, if
    the suit is not filed within a period of limitation
    prescribed, and the period of limitation stands
    determined, then not only period of limitation
    come to an end, but, his right will also comes
    to an end and it is to stand extinguished. The
    cases, where, the possession of the defendant
    becomes adverse to the plaintiff, it means that
    title of the owner of the property would
    extinguish on the expiry of the period of 12
    years, in cases covered by Article 65, if the suit
    for possession had not been filed by the
    plaintiff, that is, the owner of the property for
    possession within that period. The question is,
    when can the possession be said to be

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    adverse? This has been dealt with in many
    cases.

    10. Simply possession for 12 years may
    not become adverse. The possession must for
    12 years be continuous possession and it must
    be hostile in its nature.”

    40. The learned counsel for respondents relies on the

    judgment of Hon’ble Apex Court in Jose Vs.

    Ramakrishnan Nair Radhakrishnan and others8 in

    paragraph No.11, reads as follows:

    “11. We may in this connection point out

    that Ext. B3 was executed in the year 1959.

    Suit was instituted only in the year 1982, after

    more than 23 years praying for recovery of

    possession. Claim was resisted stating that the

    suit itself was barred by law of limitation.

    Counsel for the plaintiff submitted that the suit

    is not barred by law of limitation since first

    defendant obtained possession of the property

    8
    2003 SCC OnLine Ker 301

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    only in 1974. Reference was also made to the

    decision in Kumara Pillai v. Velappan

    Pillai (1968 Ker LT 695). Period of limitation to

    file the suit starts from the date of Ext. B3. We

    have already held that Chempakakutty Amma

    was in possession of the property and therefore

    Ext. B3 was validly executed. This is a case

    where first defendant and the assignee are in

    possession of the properties for more than two

    decades and have effected valuable

    improvements in the property. Since the

    property was already parted with under Ext. B3

    the period of limitation has to be reckoned from

    the date of Ext. B3, that is 19-9-1959 and

    hence the suit is barred by law of limitation.

    Further since Ext. B3 was executed by the

    female daughter she is incompetent to execute

    Ext. A1 settlement deed dated 19-11-1959 and

    therefore to be ignored. Consequently we are

    of the view plaintiffs are not entitled to any of

    the reliefs prayed for in the suit. We therefore

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    allow the appeal, set aside the judgment of the

    Court below. Parties would bear their

    respective costs.”

    41. The facts and circumstances of the present case

    and said case differ.

    42. The learned counsel for respondents relies on the

    judgment of Co-Ordinate Bench of this Court in M. Abdul

    Rasheed Vs. V.L. Shivappa9 in paragraph No.17, reads as

    follows:

    “17. Now, coming to the question with
    regard to the limitation, it is the contention of
    the learned counsel for the plaintiffs that Article
    65
    of the Limitation Act applies to and that suit
    has been filed within the limitation period. As
    could be seen from Article 65 of the Limitation
    Act
    , the suit for possession of immovable
    property can be filed within 12 years from the
    date when the possession of the defendant
    becomes adverse to the plaintiffs. Though the
    Lower Appellate Court held that the suit
    instituted is well within the time, the view
    9
    HCR 2011 Kant.624

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    expressed is incorrect as the plaintiffs never
    instituted the suit for possession of the
    property even when it was standing in the
    name of defendants 2 and 3. It is relevant to
    note that as per the claim made by the
    plaintiffs, Abdul Sattar was the owner of the
    suit property prior to 1932 and that he had
    given this property to Jahira Bi, his second wife
    under the mahar sale deed Ex.P.3 and if Jahira
    Bi is to be the absolute owner of the suit
    property and if it was not in her possession all
    along since from the date of Ex.P.3. the
    possession of defendants 2 and 3, would be
    adverse to the interest of Jahira Bi in the suit
    land. Therefore, even if Article 65 is applicable
    to the facts, the suit instituted is not in time.
    Even otherwise, if the provisions of Section 27
    of the Limitation Act is perused, Jahira Bi gets
    a right to possession of the property from the
    date of Ex.P.3. Neither Jahira Bi nor the
    plaintiffs ever instituted any suit for possession
    right from 1932 onwards till the property was
    sold by defendants 2 and 3 in favour of the 3rd
    defendant. This inaction on the part of the
    plaintiffs to take the possession extinguishes
    their right in the property and thereby even
    under Section 27 of the Limitation Act, the

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    plaintiffs have no remedy to get the possession
    and the suit deserves to be dismissed on this
    count as well.”

    43. On careful perusal of all the above citations, to

    establish the title based on law of adverse possession, one

    has to prove the following two ingredients:

    i) Possession for a statutory period of 12 years

    openly, continuously, without any obstruction

    to the knowledge of every one including

    plaintiff;

    ii) Animus possidendi, the hostile intention of the

    possessor possessing the property against true

    owner.

    44. Thus, if defendants have taken the plea of

    adverse possession, first they have to admit that plaintiff is

    the owner of the suit schedule property, but in the instant

    case, they are disputing the ownership of plaintiff over suit

    schedule property. Defendants have to plead and prove that

    from which date, their possession become adverse to the

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    interest of real owner. However, in the instant case, there

    is no such plea and proof.

    45. In the instant case as discussed above,

    defendants contended that they came to be in possession of

    suit schedule property based on the sale deed by one Huchi

    Dodda Guddappa who was not having title over the suit

    schedule property as held by trial Court as well as First

    Appellate Court. Hence, their possession never became

    hostile to the interest of plaintiff. Furthermore, D.W.2 in his

    examination- in-chief itself has categorically deposed that

    the possession of defendants over suit schedule property is

    not known to plaintiff and to villagers. Under these

    circumstances, they have not established the possession

    over suit schedule property openly for a period of 12 years

    and their possession became hostile to the interest of real

    owner. Even defendants have produced the RTCs. from

    1985-86 onwards and not from 1961 onwards. Hence,

    defendants also failed to establish their continuous

    possession of suit schedule property for a period of 12 years

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    and they have also failed to establish the animus

    possidendi.

    46. On reading of Article 65 of the Limitation Act,

    1963, the period of limitation to file a suit for possession

    begins to run from the date of hostile intention of

    defendants against the true owner. This hostile intention

    can be gathered from the circumstances of the case.

    47. In the instant case, as discussed above, the

    defendants have never admitted the ownership of plaintiff

    or his vendor over suit schedule property at any point of

    time; on the other hand, they claim ownership over the

    property based on title and not on adverse possession.

    Defendants failed to establish their title over suit schedule

    property . As discussed above, the defendants failed to aver

    and prove the plea of adverse possession in a proper

    manner. Hence, at no point of time, the possession of

    defendants became adverse to the interest of real owner-

    i.e., plaintiff. Hence, the period of limitation does not run

    against plaintiff. Hence, the suit is not barred by law of

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    limitation. Thus, the finding of First Appellate Court that

    defendants have established their continuous possession for

    a period of 12 years and established hostile intention

    towards plaintiff is erroneous and they have perfected their

    title by law of adverse possession is incorrect and improper

    and it requires interference. Accordingly, the substantial

    question of law is answered in favour of appellants and this

    Court proceeds to pass the following:

    ORDER

    i) The appeal filed under Section 100 of

    C.P.C. is allowed by setting aside the

    judgment and decree dated 30.07.2008 in

    R.A.No.26/2007 on the file of Principal

    Civil Judge (Sr.Dn.) & J.M.F.C., Hospet;

    by confirming the judgment and decree

    dated 20.12.2006 in O.S.No.74/1997 on

    the file of Civil Judge (Jr.Dn.) & J.M.F.C.,

    Hadagalli.

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    ii) The suit of plaintiff is decreed. Plaintiffs

    are entitled for possession of suit schedule

    property from defendants and also

    entitled for mesne profits from

    defendants, which is to be ascertained

    under Order XX rule 12 of C.P.C.

    iii) Draw decree accordingly.

    Sd/-

    (GEETHA K.B.)
    JUDGE

    SSP
    CT-MCK
    List No.: 1 Sl No.: 1



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