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2010 DIGILAW 209 (KAR)

Nagarathnamma v. Halamma @ Sanna Halamma

2010-02-17

ANAND BYRAREDDY

body2010
Judgment :- Heard the Counsel for the parties. 2. The parties are referred to by their rank before the Trial Court for convenience. 3. The facts as are relevant are as follows: The appellants were the plaintiffs before the Trial Court. Plaintiff no.1 is the wife of plaintiff no.2. It is their case that one D.L. Seshappa Shetty, was the owner of agricultural land in Survey No.78 of Kolahalli, shimoga Taluk and District. He is said to have formed a residential layout on the land. One Savithramma, is said to have purchased “Block” or Site No.62, measuring 50’X 30’ feet, under a registered sale deed dated 12.01.1965. She is said to have died on 04.04.1967. Her husband and children had in turn, sold the same to one Bhagirathi Bai on 25.10.1972, from whom plaintiff no.1 had purchased the same under a sale deed dated 10.12.1980. The plaintiffs were residing at Mysore, at that point of time. The respondent herein, who was the defendant, had purchased Site No.61, from Seshappa Shetty under a registered sale deed on 25.08.1967. This site was situated to the Northern side of the plaintiffs site. It is the case of the plaintiffs that the defendant had constructed a house over her entire sital area and had encroached into the property of the plaintiffs – which was noticed by them only in the year 1992, on a visit to Shimoga from Mysore, where they were residing. They had complained and demanded that the encroachment be removed – the defendant is said to have claimed ownership in respect of the encroached portion. The plaintiffs did not immediately initiate action. But in January 1993. When the defendant sought to encroach on more of the plaintiffs property by laying foundation for further construction the suit came to be filed. The plaintiffs site is described in the plaint Schedule – A and the encroached portion is described as Schedule – B. The defendant denied the plaint allegations and claimed that after purchased of her site measuring 50’x 20’ feet, she had constructed a house and had willfully encroached 10’ x 50’ feet of the public channel bund area, on the northern side of her property and has exercised possession over the same, since the year 1967. It was contended that the City Municipal Council had issued a notice dated 23.12.1981 calling upon the defendant to remit “alienation” charges in a sum of Rs.1.,378/-, which was paid. Hence, it was claimed by the defendant that she had perfected her possession of such encroachment. It was further contended that Savithramma, the erstwhile owner of the plaintiffs site, had sought to demolish a portion of the defendant’s house on the southern side, in the year 1986. The defendant had then filed a Civil Suit in O.S.No.408/1986, in the Court of Additional Munsiff, Shimoga seeking injunctory relief which is said to have been decreed in the year 1987. It is contended that the defendant has not encroached on the suit property. However, it is further contended that even if the plaintiff should establish that there was encroachment to the extent of suit Schedule – B property – the defendant claimed to have perfected her title by way of adverse possession, over the same. On the basis of these contentions, the Trial Court framed the following issues: “1. Whether the plaintiffs prove that “B” schedule property is part and parcel of the “A” Schedule property? 2. Whether the plaintiffs prove that they have got title over the “B” schedule property? 3. Whether the plaintiffs are entitled for the permanent injunction as sought for? 4. Whether the plaintiffs are entitled for reliefs sought for? 5. What decree or order?” The Trial Court held that the plaintiffs had proved that the Schedule –B property was part of Schedule – A property. But held they had lost title over the same to the defendant, who claimed adverse possession and refused the relief of permanent injunction. The First Appellate Court having affirmed the judgment and decree of the Trial Court, the present appeal is filed. 4. This appeal was admitted by this Court after framing the following substantial questions of law: “1. Whether the courts below have concurrently erred in placing reliance on the document at Ex.D2, namely the judgment and decree passed in O.S.No.408/96 to hold that the defendant is entitled to the property indicated in “B” schedule? 2. 4. This appeal was admitted by this Court after framing the following substantial questions of law: “1. Whether the courts below have concurrently erred in placing reliance on the document at Ex.D2, namely the judgment and decree passed in O.S.No.408/96 to hold that the defendant is entitled to the property indicated in “B” schedule? 2. Whether the Courts below have erred in coming to the conclusion that the defendant had perfected right over the property by way of adverse possession?” At the time of final hearing an additional substantial question of law was posed, namely.- “iii) Whether the respondent could rest her case on inconsistent pleas? In that, could she claim that there was no encroachment of suit schedule ‘B’ property and claim in the alternative to have perfected her title over the same by adverse possession?” 5. The Counsel for the appellant has contended as follows: That the Trial Court while accepting the Court Commissioner’s report has erroneously held that the same did not indicate the measurement of the property that was encroached, when it was in fact indicated that there was encroachment of Schedule –B property to the extent of 9’ x 50’ feet. It is emphasized that the defence set up was that the defendant had not encroached Schedule – B property but had willfully encroached the public channel bund area to the north of the defendant’s property to an extent of 10’ x 50’ feet. The Trial Court has glossed over this glaring circumstance. By such a pleading, the defendant was hardly in a position to set up a plea of adverse possession in respect of suit schedule ‘B’ property – in view of the settled principles as to what would constitute adverse possession, to defeat the title of the true owner. It is contended that the acceptance of the plea of adverse possession by the defendant, by the trial Court is further confounding in the face of its observation to the following effect: “There is an encroachment by the defendant 10’ x 50’ feet area of channel bund area towards North. It is pertinent to note that defendant has not made any claim with regard to the encroachment on southern side i.e., the property belonging to the plaintiffs. It is pertinent to note that defendant has not made any claim with regard to the encroachment on southern side i.e., the property belonging to the plaintiffs. It is only pleaded that she has perfected her title by way of adverse possession over schedule A and B property.” It is also pointed out that there was no issue framed as regards the nebulous claim of adverse possession by the defendant and hence, the declaration made in favour of the defendant is illegal and unjust. It is further pointed out insofar as the conclusion of the Trial Court and the First Appellate Court that the judgment in O.S.No.408/1986, which was a suit filed by the defendant against one Savithramma, the erstwhile owner of the suit property, as binding the plaintiffs is concerned, it is pointed out that the said Savithramma, was dead as on the date of suit. She had died as on 04.04.1967. the suit was also not binding on her legal representatives, as they had no claim over the property as on the date of suit. The Trial Court however, has proceeded to hold that the said Savithramma, was the sister of plaintiff No.2 and therefore, the knowledge of the claim made by the defendant, adversely to the interest of the owner, was known to the plaintiffs and therefore, the plea of adverse possession having been held in favour of the defendant is wholly illegal and perverse. It is further pointed out that the encroachment on the northern side of the defendant’s property being sought to be proved, with reference to payment of alleged “alienation” charges to the local authority – further diluted the case of the defendant of any alleged adverse possession of Schedule ‘B’ property. The Counsel places reliance on the following authorities: (1) M. Durai v. Muthur, (2007) 3 SCC 114 (2) Damappa Revappa Kolli v. Gurupadappa Mallappa Pattanshetti, ILR 1990 Kar 610 and prays that the appeal be allowed. 6. Per contra, the counsel for the respondent contends as follows: That the substantial question of law framed by this Court as regards the effect of the judgment and decree in O.S.No.408/1986 is not at all a substantial question of law. 6. Per contra, the counsel for the respondent contends as follows: That the substantial question of law framed by this Court as regards the effect of the judgment and decree in O.S.No.408/1986 is not at all a substantial question of law. And even if the same were to be answered against the defendant the judgments of the Courts below would not warrant interference, as the reference to that judgment by the Courts below was only one circumstance and material evidence in arriving at findings, which were not entirely on the basis of that judgment. It is contended that the patent admission by PW.1 in his evidence that the defendant had put up construction over Schedule ‘B’ property in the year 1967 clearly supported the claim of adverse possession by the defendant over Schedule ‘B’ property. It is contended that the plea of the defendant in the alternative claiming to have perfected her title by adverse possession over suit schedule B property is permissible and tenable and in this regard, seeks to place reliance on the following authorities: (a) Usha Babasaheb Swami v. Kiran Appaso Swami AIR 2007 Supreme Court 1663, and (b) Karnataka Wakf Board v. State of Karnataka 1995 (4) Kar LJ 326. To contend that a defendant is entitled to take mutually inconsistent pleas in the written statement. The Counsel also places reliance on Kondiba Dagadu Kodam v. Savitribai Soopam Gujar, AIR 1999 SC 2213 and RVE Venkatachala Gounder v. Arulmigu Viswesaraswami AIR 2003 SC 4548 to substantiate that the substantial questions of law framed by this Court do not meet the requisite criteria and hence, the appeal be rejected as not giving rise to any substantial questions of law. 7. In the above background, insofar as the question whether the judgment and decree passed in O.S.No.408/1996 in favour of the defendant could be relied upon a defeat the claim of the plaintiff and advance the case of the defendant, it has to be held in the negative for the following reasons: It was a suit filed against one Savithramma by the defendant. On the allegation that she was the owner of suit property, at that point of time and was seeking to interfere with here property. That suit was decreed ex-parte. It is not denied that Savithramma, was dead even as early as the year 1967. On the allegation that she was the owner of suit property, at that point of time and was seeking to interfere with here property. That suit was decreed ex-parte. It is not denied that Savithramma, was dead even as early as the year 1967. Even if the suit could be held binding on her legal representatives, in the absence of a challenge to the same, they had no claim over the suit property on the date of the decree in the year 1987, since the property was sold to the plaintiff in the year 1980. The trial Court having accepted the reasoning that Savithramma, was the sister of plaintiff no.2 and therefore, the plaintiffs were aware of the claim set up by the defendant over the suit Schedule ‘B’ property is not tenable. This cannot be sustained on legal principle. The judgment and decree in O.S.No.408/1996 could not even have been cited as evidence of a plea of adverse possession as against the plaintiffs. The Courts below were not justified in law in placing reliance on the said judgment and decree in finding a case for the defendant. The general rule of evidence in respect of judgments in personam of a competent Court is conclusive proof in a subsequent proceeding between the same parties or their privies (persons whose relationship to the same right of property is mutual and successive) of the matters actually decided from the judgment itself. But judgments in personam not inter partes are not at all admissible in evidence (See: Section 41 – The Indian Evidence Act, 1872, Sarkar’s Law of Evidence 16th Edition Volume 1 Paes 932 and 933 and State of Bihar vs. Shri Radhakrishna Singh, AIR 1983 SC 684 ). The next question whether the defendant had perfected title by adverse possession, in respect of suit schedule B property as held by the Courts below, with reference to the pleadings and the evidence will have to be answered in the negative, in view of the following glaring circumstances: The categorical plea of the defendant was that she had willfully encroached public land on the northern side of the property which had been condoned by the local authority by collection of “alienation” (sic) charges and that the defendant had not encroached on any portion of the suit property. Alternatively, it is also contended that if the plaintiffs were able to establish that there was encroachment of schedule ‘B’ property – it ought to be held that the defendant had perfected her title by adverse possession, in view of her long undisturbed and open possession of the same for several decades. The trial Court had not thought it fit to frame an issue as regards the above claim of the defendant. Even otherwise, whether the tenor of the defendant’s claim could be said to meet the basic requirement of a claim of adverse possession will have to be answered in the negative, in the light of well settled principles of law pertaining to claims of adverse possession. The doctrine of adverse possession would arise only when the party has set up his own adverse title, disclaiming the title of the owner and establishing that he remained exclusively in possession to the knowledge of the owner, hostile to his title and the owner had acquiesced to the same (See: Madhav Krishna vs. Chandrabhaga, (1997) 2 SCC 203 ). In order to substantiate a claim of adverse possession, the ingredients of open, hostile and continuous possession with the required animus should be proved (See: State of Rajasthan vs. Harpool Singh (2000) 5 SC 652). Unless and until there is adverse animus, mere possession over the statutory period of limitation is not sufficient for the success of a plea of adverse possession (See: Roop Singh vs. Ram Singh, Air 2000 SC 1485 ). Unless the plea of adverse possession has been specifically raised in the pleading, put in issue and then cogent and convincing evidence led on a multitude of points … the plea of adverse possession cannot be allowed (See: AIR 1959 Punjab 147 (FB)). In the eye of 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. 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. Physical fact of exclusive possession and the animus possidendi to hold as 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 fuctum 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. (See: Karnataka Board of Wakf vs. Government of India, (2004) 10 SCC 779 . T. Anjanappa vs. Somalingappa (2006) 7 SCC 570 ) In terms of Article 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the position has undergone a complete change insofar as the onus is concerned; once a party proves his title, the onus of proof shifts to the other party to prove he has perfected his title by adverse possession. (See: P.T. Munichikkanna Reddy V. Revamma (2007) 6 SCC 59 , M. Durai V. Muthu, (2007) 3 SCC 114 ) In the case on hand, the defendant has not categorically asserted the plea of adverse possession. On the other hand, the primary claim was that there is no encroachment of the suit property. There is only a laconic plea in the alternative, more by way an insurance against the plaintiff succeeding to establish encroachment of suit schedule B property by the defendant. Hence such a plea of adverse possession cannot be countenanced at all. The Courts below were not justified in accepting the same. This takes us to the next question whether it was open to the defendant to contend that she had not encroached the suit property while incidentally contending that in the event the plaintiff was able to establish that there was in fact such encroachment – this ought to be held in favour of the defendant to support her contention that she had perfected her title by adverse possession as required in law. The Counsel for the respondent has placed reliance on AIR 2007 SC 1663 to support his contention that such inconsistent pleas were admissible. The facts of that case may usefully be noticed to examine whether it could be pressed into service. The appeal therein arose out of a suit for partition. The plaintiff had claimed to have inherited one-half share of the suit properties jointly with the defendants 1 to 7. The said defendants had supported the plaintiffs case in the first instance. However, defendants 8 to 14 sought an amendment to the written statement that the plaintiff and defendants 3 to 7 could not acquire any right or interest in the joint family properties as they were illegitimate children of their father. That application was allowed by the trial Court. On a revision petition to the High Court that order of the trial Court was set aside relying on the case of Modi Spinning and Weaving Mills Company Limited vs. Lodha Ram and Company (1976) 4 SCC 320 . The High Court held that allowing such an amendment would totally displace the case of the plaintiff and his right to get the partition decree. In the above background, the appeal was before the Supreme Court. The High Court held that allowing such an amendment would totally displace the case of the plaintiff and his right to get the partition decree. In the above background, the appeal was before the Supreme Court. While taking note of the following observation of the Privy Council in the case of Ma.Shwe Mya vs. Maung Mo Hnuang AIR 1922 PC 249. “All rules of Courts are nothing but provisions intended to secure the proper administration of justice and it is therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change by means of amendment the subject matter of the suit”. The Apex Court has gone on to lay down that it is an equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. And that addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable. Reliance is placed on the decision in Karnataka Wakf Board, Bangalore v. State of Karnataka 1995 (4) Kar L J 326. The facts in that case were as follows: The State of Karnataka had filed a suit against the Karnataka Wakf Board and another claiming that the suit property belonged to the State and that it was erroneously notified as Wakf property under the Wakf Act. In the alternative, it was claimed the State had perfected its title by adverse possession. The suit was decreed in favour of the State. The Wakf Board was in appeal before the High Court. A contention canvassed was that the State could not take up an inconsistent plea in the alternative in claiming title while also seeking to contend that the State had perfected its title by adverse possession – This was held permissible as it was found as a fact that the defendant had been laying claim unsuccessfully to the suit property for several decades prior to the suit. From the above decisions, the contention on behalf of the respondent, in the present case on hand, that on principle there was no bar for a defendant to raise as many distinct and separate pleas and therefore, inconsistent defences as possible, is to be accepted. But if alternate cases are alleged, the facts ought not to be mixed up, leaving the apponent to pick out the facts applicable to each case. Facts ought to be distinctly stated so as to show on what facts each alternative relief is founded. This rule is embedded in Order VII Rule 8 and Order VIII Rule 7 of the Code of Civil Procedure, 1908- Both the provisions insist that grounds of alternative claims are to be stated separately. It must be shown that each of the inconsistent claims are maintainable. Inconsistent pleadings are not prohibited but the litigant who avails himself of the right to press an inconsistent case and endeavours to establish both the alternatives by contradictory oral testimony places himself in peril and may find himself entangled in inextricable difficulty, for evidence adduced in support of two absolutely inconsistent cases which are mutually destructive can hardly be expected to secure confidence. (Bhuban Mohini Vs. Kumund 28 CWN 131). 8. In the case on hand, it can hardly be said that the defendant is in a position to sustain the alternate pleas put forth for if they are to be accepted she would have to plead and establish that not only had she encroached public land to the North of her property to the extent of 10 x 50 feet but that she had also encroached the suit property to the extent of 10 x 50 feet to the south of the property. There is no such plea and hence the claim in respect of the suit property falls foul of Order VIII Rule 7 of the Code of Civil Procedure, 1908. Insofar as the contention that no substantial questions of law arise in the present appeal, is concerned having regard to the several issues that have been discussed above there is no doubt that the questions framed are substantial questions of law applying the test prescribed in innumerable decisions of the Apex Court as well as this Court. In the result, the appeal is allowed. In the result, the appeal is allowed. The judgment and decree of the trial Court as well as of the First Appellate Court are hereby set aside. The suit of the plaintiff is decreed as prayed for with costs.