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2009 DIGILAW 815 (KAR)

B. Koosappa v. P. Veerappa @ Koosappa

2009-10-29

H.G.RAMESH

body2009
Judgment :- Ramesh, J This second appeal by the defendant is directed against the judgment and decree dated 12.09.2007 passed by the Court of the Civil Judge (Sr.Dn.), Nanjangud, in the appeal in R.A.No.70 of 1999. By the impugned judgment, the lower Appellate Court has confirmed the judgment and decree of the Trial Court declaring the plaintiff as the owner of the plaint ‘A’ schedule property and granting possession of the plaint ‘B’ schedule property. 2. I have heard Sri M. Sivappa, Learned Senior Counsel for the appellant and perused the judgments of the two Courts below. Concurrent findings by both the Courts have held that the plaintiff is the owner of the suit schedule properties. It is relevant to refer to para 16 of the lower Appellate Court’s judgment: “16. Exs.P-5 to 7 coupled with Index of lands and Record of Rights produced at Exs.P-1 to P-2, clearly go to show that the plaintiff is the absolute owner of 3 acre 8 guntas in Sy.No.205/1 which also includes ‘B’ schedule property. Therefore, it is clear that the plaintiff is the absolute owner of the plaint ‘A’ schedule property which also includes ‘B’ schedule. The Trial Court has rightly held that the plaintiff was not in possession of ‘B’ schedule property and therefore, the Trial Court has granted the alternative relief claimed by the plaintiff for delivering possession of the ‘B’ schedule property in favour of the plaintiff……………………………………….” 3. Sri M.Sivappa, Learned Senior Counsel appearing for the appellant by relying on Articles 65 of the Limitation Act, 1963 contended that the claim for possession of the plaint ‘B’ schedule property was barred by limitation as the suit was not instituted within twelve years from the date of dispossession of the plaintiff. This contention is devoid of merit; but this was the legal position earlier under Article 142 of the Limitation Act, 1908. 4. Article 65 of the Limitation Act, 1963 has drastically changed the earlier legal position. This contention is devoid of merit; but this was the legal position earlier under Article 142 of the Limitation Act, 1908. 4. Article 65 of the Limitation Act, 1963 has drastically changed the earlier legal position. A plain reading of Article 65 would show that there is no limitation for institution of a suit for possession of immovable property based on title, if the defendant’s possession is not adverse to the plaintiff; if the possession is adverse, the period of limitation is twelve years and limitation starts from the time when the defendant’s possession becomes adverse to the plaintiff and not from the date of dispossession of the plaintiff as in Article 64. I may add that in a suit for possession of immovable property based on title, the claim of the true owner could be defeated only if the person in possession pleads and proves that he had perfected his title by adverse possession. 5. In the present case, the claim for possession of the plaint ‘B’ schedule property was based on title. It is not the case of the defendant that his possession was adverse to the plaintiff. Hence, the claim was not barred by time as there is no period of limitation for such a claim. 6. In my opinion, no substantial question of law arises for determination in this second appeal. No ground to admit the appeal. The appeal is accordingly dismissed. Appeal dismissed.