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Karnataka HC explains difference between Adverse Possession and Permissive Possession: Chepudira Madaiah Vs Mallengada Chengappa and Others

Abhijeet Malik ,
  10 January 2022       Share Bookmark

Court :
The High Court of Karnataka
Brief :

Citation :
R.F.A.No.1840 OF 2005

DATE OF JUDGEMENT:
17th November 2021

JUDGES:
Justice H.B. Prabhakara Sastry

PARTIES:
Appellant (s): Chepudira Madaiah, Son of late Muthanna
Respondent (s):
1. Mallengada Chengappa, Son of late Bopaiah
2. Mallengada Saroja, Daughter of late Bopaiah
3. Mallengada Muthanna, Widow of late Bopaiah
4. Chepudira Ramakrishna Son of late Muthanna

SUBJECT

In the present case, an appeal was filed in the High Court of Karnataka under Section 96 of Code of Civil Procedure, 1908 to set aside the order dated 30th November 2009 where the Trial Court held that the appellants had not perfected the adverse possession of the suit property and the respondents were allowed to the possession of the same.

OVERVIEW

1. When oversimplified, the matter at hand could be dubbed as an issue regarding ownership of land. The facts to the matter are such that respondents number 1 and 2 are the children and respondent number 3 (Plaintiff no. 1,2 and 3 respectively in the suit in question in appeal) was the wife of one late Bopiaih. The appellant is the son (defendant in the suit in question in appeal) of one late Muthanna

2. The issue began in 1983 when Muthanna filed a Civil Suit against Bopaiah seeking possession of two bits of land measuring 35 Cents in Survey No. 48/2 and 10 Cents in Survey No.48/3. Muthanna alleged that Bopaiah had encroached over his land. Bopaiah contended that he hadn’t encroached any land, but it was Muthanna who had encroached on his lands. The suit was decreed in favor of Muthanna. The order stated that Muthanna was entitled to the possession of the land to an extent of 45 Cents in total. Bopaiah appealed to the learned Senior Judge in the Trial Court.

3. In the appeal, a Commissioner was appointed to survey the land. The Commissioner found that Bopaiah had encroached about 20 cents of land in Survey No.48/2 and 10 cents of land in Survey No.48/3 and Muthanna had encroached 2.25 acres of land in Survey No.48/9 and 50 cents in Survey No.48/11. Hence, it was concluded that while Bopaiah had encroached only 30 cents of land, Muthanna had encroached 2.25 acres of land. The Senior Civil Judge allowed the appeal. In the meantime, both Muthanna and Bopaiah passed away.

4. The second appeal was then filed by the appellants in 1995. However, the Court directed the appellants to file a suit in the competent court of law. Hence, the appellants instituted the suit in question in the Trial Court.

5. In the suit, the appellants (defendants in the Trial Court) contended that Muthanna was the absolute owner and in possession of the property bearing Survey No.48/2, measuring 1 acre, and Survey No.48/3, measuring 7.30 acres. In the year 1980-81, Bopaiah unlawfully encroached on a portion of the said property. Hence, Muthanna filed that suit in 1983 for the recovery of possession of the land.

6. The appellants contended that Muthanna never encroached on the suit property and the report of the commissioner was not binding on them. Moreover, from 1969 onward, Muthanna had been in possession of the suit property, openly, peacefully, and continuously with the knowledge and adverse to the interest of the said Bopaiah, and its title was perfected by Adverse possession. After the death of Muthanna, the appellants had been in possession and enjoyment of the said property, peacefully and with the knowledge and adverse to the interest of the plaintiffs and thus have perfected their title by adverse possession. Hence, the appellants prayed for the dismissal of the suit.

7. The Trial Court held that the appellants had not perfected the adverse possession of the suit property and the respondents were allowed to the possession of the same. Aggrieved by the order, the appellants filed this appeal in the High Court of Karnataka.

8. The counsel for the appellant first contended that the suit in question was barred by limitation under section 65 of the Limitation Act as the respondents came to know about adverse possession in 1986 but only filed the suit 12 years after. However, the counsel for the respondents submitted that 2nd appeal by the respondents was disposed of in the year 1998 and the respondents filed the suit the very next year i.e. 1999, hence, the suit was not barred by limitation.

9. Counsel for the respondents also argued that the respondents had already given the possession of land (30 cents) to the appellants which were said to be encroached by Bopaiah but the appellants had failed to deliver the encroached property(2.25 acres) which is a larger portion of land.

LEGAL PROVISIONS:

The Limitation Act, 1963

• Section 65- Statutory period of limitation that is allowed for the possession of immovable property or any interest therein is 12 years (in the case of private property).

Code of Civil procedure, 1908

• Section 96- Appeal from original decree.

ISSUES

1. Whether the plaintiff in the trial Court has proved that defendants had encroached on the suit schedule properties?

2. Whether the defendants have perfected their title over the suit schedule properties by adverse possession?

JUDGMENT

1. Examining the issue of limitation, the court referred to section 65 of the Limitation Act of 1963, which provides that the limitation period for a suit for the relief of possession of the immovable property is twelve years from the date when the possession of the defendant becomes adverse to the plaintiff.

2. The Court explained that under section 65, the time from which the period of 12 years begins to run is not from the date when the defendant occupied the property, but, when the possession of the defendant becomes adverse to the plaintiff, hence, the limitation commences when the defendants prove the fact of adverse possession affirmatively from a particular point of time. The Court noted that the appellants in the cross-examinations stated that they were not aware of the total area of the respondent’s property, which they were said to be in actual possession. Nor did they know about the survey number of the said property which was said to be under their alleged possession. The respondents stated that they came to know about the adverse possession only after the report of the commissioner in 1994 and only then did their cause of action arose. The adverse possession only began once the respondents contested the adverse possession i.e. after 1994. Hence, the suit was not barred by limitation. The Court relied on the judgment in the case of Dagadabai (Dead) by Legal Representatives -vs- Abbas alias Gulab Rustum Pinjari where the Apex Court held that the person raising the plea of adverse possession must necessarily first admit the ownership of the true owner of the relevant property to the knowledge of that owner and that was only done by the defendants in their written statement where they admitted the ownership of the respondents over the suit property.

3. Apart from these essentials, the Court held that the appellants must also prove that their possession is an actual, open, exclusive, hostile, and continued over a statutory period by wrongful dispossession of the rightful owner. Mere possession cannot be deemed to be adverse possession merely on the basis of denial of another's title over a property for that would be violative of basic rights of the actual owner. The Court referred to the judgment in the case of Uttam Chand (Dead) through Legal Representatives -vs- Nathu Ram (Dead) through Legal Representatives and others where the court explained three basic essentials of adverse possession:

a) Nec vi i.e adequate in continuity,
b) Nee clam i.e. adequate in publicity and
c) Nec precario i.e. adverse to a competitor, in denial of title and his knowledge.

4. In the instant case, the court observed that the respondents only came to know about the possession of a portion of their property by the appellants in 1986, and the alleged possession of the portion of their property by the appellants had by then not become adverse to the plaintiff. Moreover, the exact extent of possession only came to be known to the parties after the commissioner’s report, and only through their written statement, the appellants had taken up the plea of adverse possession. Thus, it cannot be inferred that the possession of the property by the appellants was adverse and hostile to the title of the original owner and the same was to the knowledge of the true owner.

5. Consequently, the court held that the appellants had failed to prove their alleged perfection of title over the suit schedule property by adverse and the findings of the Trial Court didn’t want any interference. The appeal was then dismissed.

CONCLUSION

In the present case The Karnataka High Court has explained that a person will not acquire adverse possession by simply remaining in permissive possession, for however long it may be. The physical fact of exclusion, possession and animus possidendi, to hold as owner, in exclusion to the actual owner, are the most important factors to prove adverse possession.

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